P L D 1962 W (PLP)

This is a revision petition under section 16 of the Punjab Land Revenue Act against the Commissioner, Rawalpindi Divisions revisional order, dated the 8th August 1961, whereby he set aside the Collector's order, dated 20‑9‑1955, appointing the petitioner as Lambardar of Patti Ali Ahmad, village Choranwali, Tehsil Gujrat and remanded the case back to him for fresh decision. The detailed facts are given in the learned Commissioner's order. The respondent's elder brother Muhammad Yousaf as well as his mother Mst. Begum Bibi stated before the revenue officer, as representative of her minor sons (grandsons of Ali Ahmed, deceased Lambardar) that she had no objection to the appointment of Abdullah, petitioner, who was uncle of the respondent. The plea taken by the respondent before the Com missioner is that at the time of appointment of Abdullah, petitioner as Lambardar he was a minor aged 12 or 13 years and lived with his maternal grandmother in Azad Kashmir. He returned to his village on her death in the middle of 1961. He claimed that he did not come to know of the petitioner's appointment as Lambardar until April 1961 ; it was the duty of the Collector to have called for fresh applications when his elder brother Muhammad Yousaf, in September 1955, withdrew his candidature for this hereditary post of Lambardar in favour of the petitioner, as hereditary claims are not a transferable commodity ; and as his mother was not competent to surrender his rights even during his minority, the Collector ought to have safeguarded his interests and appointed him Lambardar in the place of his grandfather. The learned Commissioner held that Abdullah, Lambardar (petitioner) had not produced any reliable evidence such as the birth certificate in support of his plea that the appellant had come of age in 1956. He held that there is no limitation for a revision petition, as held in 2 P R 1889 (Rev.): He remanded the case for fresh decision to the Collector holding that it was "difficult to resist the respondent's claim to the post in question in view of the rule of primogeniture". On these findings the learned Commissioner ought to have accepted the appeal and appointed the respondent as Lambardar instead of remanding the case. Public interest as well as the interest of the parties requires that litigation be minimised and where findings of this nature have been arrived at, the litigants be not shuttle‑cocked backward to Collector for de novo proceeding all along the line. I, however, find myself unable to uphold the Commissioner's decision for the following reasons: (i) I am not at all satisfied that the petitioner was a minor in September 1955, when the Collector passed the order of appointment. The petitioner has produced a copy of birth certificate of Muhammad Yousaf, the respondent's elder brother, whose date of birth is shown as 11‑8‑1932, (Exh. B/1). The respondent states that Muhammad Yousaf is two or three years older than 'he. This would meant `that the respondent was about 20 years old at the time of the petitioner's appointment as Lambardar. (ii) Even if it were held that the respondent was a minor and became 16 years old in 1956, as alleged by the petitioner in his grounds of revision, the respondent has to explain the delay of five years in filing his revision before the Commis sioner. This he has not been able to explain away. The argument that the petitioner was not aware that his brother had not succeeded as Lambardar during this long period, because he was residing all the time in Azad Kashmir area, is not at all convincing. I have no doubt in my mind, he must have known from the very beginning that the Lambardari, which ought to have gone to his brother had gone to his uncle (Abdullah, petitioner). To my mind the fact that the respondent had filed a revision before the Commissioner and not an appeal from the Collector's order of 1955, ought to make no difference in a case of this kind. The respondent must be deemed to be aware that his uncle (petitioner) had deprived him of the hereditary Lambardari by his failure to agitate in the matter or to offer himself for the appointment for full five years after attaining majority, he must be deemed to have surrendered by laches, whatever claim h e may have had. 1, therefore, hold that is in this case no grounds have been made out either for extending limitation, even in the exercise of revisional jurisdiction, or for modifying or reversing the selection of the Collector. (iii) The learned Commissioner appears to have read more into the rule that hereditary Lambardaris under rule 17 (1) of the Punjab Land Revenue Rules are to devolve by rule of primogeniture than the rule provides. That rule does not mean that where a Lambardar dies, leaving behind sons of his eldest deceased son and the eldest of these withdraws from candidature, while his mother withdraws on behalf of the minor sons, and their uncle is thereupon appointed, that the appointment would be improper unless it is a temporary one. In such cases if the nearest friends of the minor do not apply on behalf of the minors, and the uncle is not willing to act as Lambardar, unless appointed substantively, the Collector has to decide the case on merits and appoint the nearest eligible candidate in the field. This is all the more so if, as in the present case, the respondent is a non resident living with his grandmother in another State (Azad Kashmir). It must be remembered that important functions have to be performed by a Lambardar and the post cannot be left vacant for years on end for minor grandsons of the eldest son of the deceased incumbent to attain majority and then to choose whether or not they wish to be appointed. In these circumstances, I must hold that the respondent had no case for the re‑opening of the Collector's selection. I, therefore, accept the revision, set aside the order of the Commissioner and restore that of the Collector. K. M. A. Petition accepted.