P L D (Rev (PLP)

AKHTAR HUSSAIN, F. C. R.--‑This is a second appeal against the order of the Commissioner, Multan Division, dated 10th October 1953, by which he set aside the order of the Collector, Jhang, dated 29th December 1952, appointing, Muhammad Nawaz as Lambardar of village Langar Makhdum, Tahsil Chiniot, District Jhang. The facts briefly are that Ghulam Rasul Lambardai of villagg Langar Makhdum, Tnhsi: Chiniot, died on 26th January 1951. Manzur, Ilahi, respondent eldest son of the deceased, and Muhammad Nawaz appellant, son of Ghulam Ali were the main contesting candidates. The Collector found that originally the Lambardari was held by Sultan Muhammad after whose death Karam Ilahi, his son, was appointed as Lambardar. On the death of Karam Ilahi the nearest heir, Ghulam All father of Muhammad Nawaz appellant, did not apply for this post and Ghulam Rasul, collateral of Karam Ilahi, was appointed as Lambardar, and since the Lambardari was originally m the line of Muhammad Nawaz, the Collector considered that he was best entitled to get this post in preference to other candidates under the rule of primogeniture. He, therefore, appointed Muhammad Nawaz, appellant, as Lambardar in place of Ghulam Rasul, deceased. The Commissioner in appeal, however, held that according to the land revenue rule 17 (ii) the nearest heir of the last incumbent should get preference over all the other candidates, if otherwise eligible In the present case Manzur Ilahi the eldest son of the, deceased was the nearest heir under the rule of primogeniture. The Commissioner, therefore, set aside the order of the Collector and ordered that Manzur Ilahi, respondent, should be appointed as Lambardar. Muhammad Nawaz, appellant, has now come up in second appeal alleging that the respondent being an absentee should not have been appointed as a Lambardar, that the case was covered by rule 17 (ii) (c) of the Land Revenue Rules, and that his passing over in his minority should not have affected his rights to succeed to the Lambardari once held by his predecessors, The learned counsel for the appellant does not press the point that he has anv preferential claim on account of his grandfather having been a Lambardar. He has, however, argued that the appointment of Manzur Ilahi as Lambardar is fundamentally defective on account of the, fact that his counsel had admitted before the Collector that being a Government servant his appointment was not in the best interests of administration and that in effect he had sur rendered his right in favour of his brother, Mumtaz Ilahi. He had quoted several rulings to show that a surrender operates as estoppel and he cannot claim the Lambardari now. It was further contended by the counsel that the appointment of a sarbarah wa undesirable in the case of a Government servant who had yet to complete many years of service, and that as required by the Land Revenue Rules, the duties attached to the office of a Lambardar are so multifarious and onerous that these cannot be efficiently performed by an absentee. So far as the question of waiver of rights is concerned, I do not agree that agreement of a counsel during arguments with certain observations of the presiding officer regarding unsuitability of a candidate can be taken to simply surrender of the claim, particularly when the respondent immediately preferred an appeal to the Commissioner to reassert his claim. I have seen the application made by Mumtaz Ilahi, brother of respondent Manzur Ilahi, for appointment as Lambardar. He makes no mention of any withdrawal of claim by his brother but just mentions that in case his brother is ignored he would like to be 'considered. The Collector's order dated 29th December 1952, in which he has held that on the basis of heredity the claim of Muhammad Nawaz is superior to that of Mumtaz 11ahi, son of the deceased Lambardar, is clearly untenable. It has been consistently held in several rulings of this Court that when an heir, whether minor or not, has been passed over, whatever maybe the reason, he has been passed over for good and there is no alternative but to make the appointment under the rule of primogeniture deriving from the last incumbent of the post. I do not also agree with the learned Commissioner, that Manzur Ilahi who is a young man has recently joined the Police Department cannot be deprived of his hereditary right even if there is no likelihood of his being able to perform the duties of Lambardar for a long time to come. Sarbarahs in such cases cannot be appointed for an inter minable period. The instances of appointment of Government servants in armed forces and elsewhere, if analysed, will show that there was a reasonable expectation of their returning to the villages after short periods I, therefore, do not consider that Manzur Ilahi, will be able to perform the duties of Lambardar and ignore him. The orders of the Commissioner dated 10th October 1953, and of the Collector dated 29th December 1952, are both set aside, and I appoint Mumtaz Ilahi, the next eligible heir to Manzur Ilahi, as Lambardar in the vacancy caused by the death of their father. The Collector has already held that Mumtaz Ilahi, possesses substantial property in the village and belongs to a respectable and influential family. The appeal is accepted to this extent. Order announced. A. H. Order accordingly.