2005 PLP 1371 (CLC)

Laws Cited

Representation

• Raja Muhammad Siddique, Advocate for Appellant.
• Muhammad Yunus Tahir, Advocate for Respondents.
• 3. Raja Muhammad Siddique, the learned Advocate appearing on behalf of the appellant, contended that the learned Judge of the High Court has misdirected himself in declaring the order of the Board of Revenue as without lawful authority. According to him the learned Judge of the High Court has wrongly placed reliance upon the provisions of subsection (3) of section 3 of the Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land (Amendment Act), 1989 (hereinafter to be referred as the Act). He further contended that the learned Judge of the High Court has not taken into consideration the proviso attached to this subsection and thereby misconstrued the law. According to him under the Act only "Nautors" can be sanctioned, but the land in dispute is entered in the Revenue Record as "Banjer Qadeem" not "Nautor", hence it could not be sanctioned. He further contended that under the proviso to subsection (3) of section 3 of the Act, the Collector District Kotli has held the inquiry into the matter without any lawful authority, as according to the learned Advocate, the inquiry could be held only when the Revenue Record of the area is not available. He also contended that the learned Judge of the High Court has lost sight of the fact that the respondents were not in continuous possession of the land as required by law, hence the sanction could not be allowed in their favour.
• 4. On the other hand, the learned Advocate appearing on behalf of the respondents, defended the order passed by the Courts below, contending that the land in dispute was in possession of the father of respondents and there in their possession. According to him, their possession is entered in the Revenue Record before the partition in the year 1999-2000 B.K. He also contended that the land was first sanctioned in favour of the respondents in 1975, but as the Azad Jammu and Kashmir Khalsa Land Ordinance, 1974 was revoked, hence Mutation No.66 of the land, attested under this Ordinance was also recalled, but the respondents remained in possession of the land. He contended that a thorough inquiry was held in the matter after which the land was sanctioned in favour of the respondents. The learned Advocate relied upon a copy of Mutation No.66, which finds place at page 28 of the High Court file, a copy of Khasra Girdawari, which finds place at page 26 of the High Court file and another copy which finds place at page 25 of the High Court file, wherein the land in dispute is entered in possession of the respondents. He also relied upon the report of Tehsildar which is placed on record of the High Court at page 37. On the basis of the above record, the learned Advocate contended that the respondents were admittedly in possession of the land and this fact is overlooked by the Member, Board of Revenue, which has been accepted as correct by the learned Judge of the High Court, hence the findings do not warrant reversal. He also contended that the appellant had neither challenged the order of Collector, nor was a party in the case, who for the first time filed a hopelessly time-barred appeal on 2-10-1997, against the order passed by the Commissioner on 12-2-1996. According to him the Board of Revenue was not competent to reverse the orders of the Commissioner and Collector on this hopelessly time-barred revision petition. According to him, the Board of Revenue has admitted that the revision petition is time-barred but he assumed the jurisdiction on the pretext of so-called suo motu powers. The learned counsel contended that this action of the Board of Revenue was contrary to the provisions of section 164 of the Land Revenue Act. He placed reliance upon a case reported as Rehmatullah and others v. Muhammad Ismail and others PLD 1958 W.P. (Rev.) 77.
• 6. There is no doubt about the fact that the respondents are entered in possession of the land much before the specified date i.e. 17th of June, 1985. The Revenue papers relied upon by the learned Advocate for the respondents, referred above, stand testimony to his arguments that land was in possession of the respondents when it was sanctioned in their favour. The learned Judge of the High Court after perusal of the above record has, therefore, come to a right conclusion on facts and the findings so recorded do not suffer from any infirmity or illegality.
• 7. As far the arguments of the learned Advocate for the appellant that it was not open to the Collector to hold an inquiry into the matter, as it could only be held when Revenue Record did not exist is concerned, for true perception of the point we would like to reproduce here the relevant provisions of section 3 of the Act:--
• 9. The contention of the learned Advocate for the appellant is bewildering that where the Revenue Record does exist, the inquiry is unwarranted. This could be a grievance of the respondents. Inquiry has not pre-judiciously affected the appellant. It is conducted by the Collector for his own satisfaction. The entry in the Revenue Record is one of the grounds to be made basis for the grant, but it ipso facto, does not entitle to the grant, if on inquiry it is found that the claimant was not in possession and the entries are fake. The inquiry by the Collector has made the case more clear leaving no doubt that the case of the respondents was covered by the above referred provisions of law.
• 10. As far the contentions that the land remains entered as "Banjer Qadeem", hence the respondents cannot be said to be "Nautor Kunindah" as "Nautor" according to the learned Advocate, means bring the land into cultivation or any other use are concerned, the land no doubt is entered as "Banjer Qadeem" in "Khasra Girdawaries" and "Jamabandies" placed on record but that does not mean, it is not in possession of the respondents in view of the report of Revenue Officers. The barren land no doubt has to be brought in some use and it has to be entered in the Revenue Record as to for what use the land is put in. It is for the Revenue Officers, particularly the Patwari, to enter in the Revenue Record at the time of "Girdawari". The report of Girdawar dated 11-5-1994 placed on record in the High Court as Annexure (ﻍ) reveals that the land in dispute is adjacent to the proprietary land of the respondents comprising number Khasras 563 to 565 and 575, and about 4/5 fields are under the cultivation of maize and "Bajra". It is, however, stated in the report that in the earlier "Khasra Girdawaries" the land appears to be entered as "Natour" on the basis of which earlier Mutation No.66 was attested in 1974 which was later on recalled. The report of the Assistant Collector dated 31-10-1994, also reveals that this land was first brought under cultivation by the respondents and then it was abandoned and then became barren but the possession remains with the respondents since 1947. Thus, it hardly makes any difference whether it is being cultivated or not, when it is proved that it is brought in possession by the claimant and is entered as such in the Revenue Record. The possession is sine qua non for granting the proprietary rights.
• 11. It is not disputed by the learned Advocate for the appellant that the appellant was not a party before any authority below the Board of Revenue and he filed a 'revision petition before the Board of Revenue against the order of Commissioner dated 12-2-1996 on 2-10-1997. The period of limitation provided for the revision petition before the Board of Revenue under section 164 of the Land Revenue Act, 1967, is ninety days which is admitted by the Member, Board of Revenue. Thus, the petition was hopelessly time-barred. However, the Member, Board of Revenue assumed the jurisdiction on the pretext of suo motu powers. He has not mentioned the provisions of law which confer suo motu jurisdiction to him, more so, when the subordinate Revenue Agency, right from Patwari to the Commissioner, have categorically reported and come to the conclusion that respondents and their father remained in possession of the land since 1947 and their possession is entered in the Revenue Record besides being found them as such when the Revenue Officers visited the disputed land. There was nothing on record for the Board of Revenue to act contrary to the reports of Revenue Officers which are based on facts and spot inspection. The Board of Revenue is no doubt an Appellate Authority of the subordinate Revenue Agency but its appellate powers are regulated by law and have to be exercised in accordance with law. The finding on facts is the concern of subordinate Revenue Officers maintaining the record and their reports have to be given weight unless a cogent contrary record or evidence is brought on record. The rule of concurrent finding cannot be said not to be applicable in such proceedings when it is found by the Collector as well as the Commissioner, on the basis of reports of Patwari, Girdawar, Revenue Assistant and spot inspection that respondents are in possession of the land. The Member, Board of Revenue has definitely acted contrary to law and the facts concurrently concluded by the subordinate Revenue Authorities.

Headnotes / Summary

Judgment & Decree