P L D 1976 Lahore 658 (PLP)

This case provides an important illustration of flagrant disobedience by an authority not less than the highest Court on ttse Revenue side, I mean the Board of Revenue, of a decree passed by the Chief Court of Punjab in C. A. 1188 of 1906.

2. The history of this case dates back to the first settlement of 1856 in village Malhowana, Tehsil and District Jhang. As stated by the Division Bench deciding the above mentioned Civil Appeal "The village, like many others of the Jhang District, was never really owned by any homogenous body of the Jhang District, lands were dug, abandoned and again restored according as time; were favourable or the reverse without recognition of permanent rights, until finally in the times of Diwan Sawan Mal matters settled down more or less, the proprietors then on the spot taking over the property "bela lihay paimana". Then came annexation and the 1856 regular settlement and the village as there constituted included some 27000 kanals of which about two‑third were shown as Shamilat Deh. In the Wajib‑ul‑arz of 1856 there were provisions about future new and restored wells and taradded Kari arrangements with which we are not much concerned, but the final order of the Settlement officer dated 10th August, 1856 is important. This distinctly says that wells newly dug or restored during the currency of settlement will be considered joint property of all the proprietor. An account was to be kept of any income derived from them and the sums so received were to be credited 'o village expenses . . . . . In 1856‑57 the three wells now in dispute were restored and thereon there were disputes in each as to which of various parties were entitled to the profits as having undertaken the~work of restoration. The Dishrict authorities passed orders as to the Lachhowala well on the 27th May, 1857, Ramsarwala on 11th May, 1857 and Bakhshiwala on 27th May 1958. These orders did not in any case attempt to do more than determine who had in fact joined in the restoration . . . . . . The files of these cases have been destroyed, and there is nothing in the orders to suggest that the wells were not to continue to be recognized as part of the Shamilat property. The orders decided disputes as to the working only and not as to title. The village proprietors in general were not parties to the proceedings. In 1861 the three wells in dispute and two others were taken out of the Shamilat Deh holding and allotted . . . . . . . ."

3. After finding that the proceedings of 1861 were not in the nature of correction of record but were partition proceedings their Lordships proceeded to state "The matter came up again in 1865 for some reason which is not very clear from the file of that year, but apparently all that was done was to confirm the arrangement of 1857‑

58. In the 1880 Settlement record, the three wells in dispute were entered as the separate property of the holders. This was a correct and necessary consequence of the 1861 proceedings . . . . . . The Shamilat Deh area was in 1880 reduced to about 16000 kanals inclusive of 1557 kanals shown as in possession of individual sharers."

4. Sometimes in the beginning of the present Century, the Kureishis claimed partition of the above more than fourteen thousand kanals area which was still shown in the Revenue record as Shamilat Deh. Some Bhatia proprietors made a demand that they "should be considered as original proprietors of both the lands entered in their names in 1856 and those awarded in 1861, and that t4ey should obtain a full share of the land still held as Sbamilat based on their total holdings of 1856 and 1861. " On a consideration of the Revenue record from 1856 the Extra Settlement Officer rejected this plea and held by his order dated 17‑2‑1903 that the 1861 proceedings amounted to nothing more than a partial distribution of the area of 19431 kanals which eras shown as Shamilat Deh in 1856. He accordingly directed that the area allotted in 1861, should be taken into account while making the partition and the proprietors to whom they were awarded should now receive so much more of the remaining Shamilat as they may be entitled to on the basis of 1856 entries.

5. The Bhatias whose objection had been repelled filed a title suit in the civil Court. The matter having been concurrently decided by the trial Court and the District Judge in their favour, the other proprietor defendants filed Civil Appeal No. 1188 of 1906 in the Chief Court which was accepted and the plaintiff's suit was dismissed! It was held "We think that the plaintiffs have failed to show that they did more to begin with than take over these wells from Shamilat property in accordance with the 1856 Wajib‑ul‑arz. In 180 their individual ownership was recognized but without any prejudice to the rights of others who had beeu less diligent in restoring wells. The areas which they have ahe.‑ady received must be taken into account in any general partition which nay be now effected." (Underlining* is mine).

6. A general partition of the Shamilat Deb area in the village was taken up in the twenties. The Naib Tehsildar in his report (Annexure `P') about the mode of partition submitted to the Revenue Officer stated that out of the Shamilat area of 19431 kanals 5 marlas, an area equal to 2936 kanals 19 marlas had been awarded in 1861 to Jumman Shah etc. (Qureshies) and Jawal Das etc. (Bhatias). After giving credit for the difference made on account of "U" W ; ziftp" during settlements, the measurement of the then Shamilat area came to 16005 kanals 3 marlas which was liable to be distributed. He referred to the judgment of the Chief Court and stated that the area measuring 2936 kanals 19 marlas will also have to be adjusted towards the total entitlement of the proprietors to whom it was awarded in 1861 and if any of these proprietor had acquired more area than his entitlement, he will have to surrender the same. The Revenue Officer agreed with this report and accepted the mode of partition suggested in Annexure 'B' vide order dated 15‑8‑1927. This is not the case of either party that this order was challenged by any proprietor either by appeal or revision or by a civil suit. It is, however, common ground that no partition by metes and bounds was actually affected in these proceedings.

7. The proceedings of consolidation in the village were initiated in 1956. On the 26th November 1957 " Jkj,~" as unanimously suggested by members of the Advisory Committee and land‑owners was adopted. Paragraph 2 of this scheme envisages partition and distribution among land‑owners of the area of Shamilat Deb. (Copy of this preliminary scheme is Annexure 'C'). Thereafter a detailed application (Annexure 'D') was submitted by petitioner No. 1 and Fazal Shah son of Sultan Shah to the Consolidation Officer for implementation of the order of Chief Court. This application was allowed by the A. D. C. on 29‑5‑1964. It appears clear from that order that Mazhar Hussain Shah etc. respondents had no objection to the implementation of the Chief Court's order in regard to the Sbamilat of the wells which were in dispute before that Court i.e. the area of 3 wells out of 5 wells as existing at the time 'of the Regular Settlement. Their objection before the A. D. C. was that only the area of the wells which were not in dispute before the Chief Court should be treated as 'Kharig az Shamilat'. The A. D. C. acting as Collector did not agree with this conten tion and directed that the area of Shamilat should be considered as measuring 19431 kanals. Copy of the order is Annexure 'E .

8. The Additional Commissioner (Consolidation) in exercise of the power of Commissioner under the West Pakistan Consolidation of Hold. ings Ordinance, 1960 set aside this order on 2‑10‑1964 (vide order Annexure 'G') on ground of lack of jurisdiction on the part of Consoli dation Staff to pass any order against the entries of the Revenue record. He directed that "each and every land‑owner, who is so recorded in the land record, back to the Missal Haqiat of the year 1924‑25, shall recieve due proportionate share of the 'Shamilat' land on the basis of the proprietary area he owns in the village." He thus accepted that very contention of the respondents which was raised earlier by the Bhatias unsuccessfully in 1903 before the Extra Assistant Settlement Officer and the Chief Court.

9. The petitioners challenged this order by a revision petition before the Board of Revenue but it was dismissed by Order (Annexure 'I') dated 8‑11‑1965. The Member, Board of Revenue held "The petitioners' claim that certain area situated at certain wells had become their individual property by a decision of the former Chief Court of the Punjab, cannot be accepted at this stage. I agree with the plea taken up by the counsel for the respondents that if at all any right had emanated from that judgment in favour of the petitioners. they should have filed a further suit to obtain a decree and should then have taken steps to get that decree implemented at the proper time. Since no such action appears to have been taken by them, they cannot expect the Consolidation Staff to give them a larger share out of the Shamilat land than is due to them under the pro rata distribution scheme"

10. The first objection to which the orders of the Additional Commissioner and the Board of Revenue are open is that as stated above, they have allowed to the respondents what was refused in the beginning of this Century to the Bhatias by the Extra Assistant Consolidation Officer and the Chief Court. * The s cond very patent and equally serious objection is that the respondents were given even that relief which they had conceded before the Additional Deputy Commissioner. They had conceded at that stage that the Chief Court's judgment was liable to be implemented in respect of Shamilat wells which were the subject matter of dispute before that Court. By their impugned orders respondents 16 and 17 have quashed the order of the A. D. C. even in regard to that area. No right of appeal accrued to the respondents against the order of the Collector at least to the extent of the area of 3 wells which were in dispute in the civil suit culminating in the Chief Court's 1908 decree.

11. It is regrettable that the Member, Board of Revenue has ignored the law while holding that the petitioners ought to have obtained another executable decree after the passing of the decree of 1908. The provisions of partition in the Land Revenue Act, 1887 envisage the decision of question of title by the civil Court or by a Revenue Officer choosing to act as a civil Court. Section 116 distinguished the two questions arising in partition proceedings. These are‑ a) question as to title in the property of which partition is sought ; and (b) question as to the property to be divided, or the mode of making the partition. Section 117 laid down the procedure of disposal of the question of title. It provided that the Revenue Officer could either decline to grant the application for partition until the decision had been determined by a competent Court or could himself proceed to decide it as such Court by following the procedure followed in that Court. This provision did not preclude a party to the proceedings from filing a declaratory suit in the civil Court without waiting for any direction of the Revenue Officer. The decision of the Revenue Officer, if he acted as a civil Court himself, would have been only declaratory in nature. The civil Court's decree in such suits is generally of a declaratory nature. The Revenue Officer seized of partition proceedings, was bound under the Land Revenue Act, 1887 while determinin the mode of partition or partitioning the joint property by metes and bounds, by the decree of the civil Court or by a declaratory decision on title given by him as a civil Court. The decree does not become ineffective if the partition is not carried out finally in those proceedings. The Chief Court's decree must therefore be implemented whenever general partition is effected. No further suit for implementation of that decree or for obtaining an executable decree was contemplated by law.

12. The Chief Court had decided a question of title in regard to the Shamilat of the village which was contrary to the record then existing and this decree was binding not only on the parties but also on the Revenue Staff, who are bound to implement it whenever occasion arises. The presumption attached by section 44 of the Punjab Land Revenue Act, to the truthfulness of the revenue record is displaced by the civil Court decree. In other words the presumption has to be read subject to the decree. It cannot be read alone, for this reason the revenue record prepared in 1924‑25 is also to be read and acted upon subject to this decree. This is clear from the direction in the Chief Court's judgment that the areas which some proprietors had already received in 1861 must be taken into account in "general partition"' which may be effected. It was conceded by the learned counsel for the respondents before me that there has never been any general partition in the village. The decree must therefore be implemented whenever the occasion to implement it arises.

13. Rana Abdul Rahim who appeared for some of the respondents did not support the reasoning of the Board of Revenue. He, on the other hand, urged that the decree of the civil Court could not affect the area which was not in dispute in that suit. He further argued that the respondents were not parties before the civil Court in the suit ending in the Chief Court's decree. On my inquiry about the source of possession and title of the respondents he stated and I quote in his own words, that "the respondents had taken over possession of different areas of Shamilat, cultivated them and had their wells there and were for this reason entered as proprietors. 1 his proprietary interest in the records has continued from 1856."

14. The first argument that the decree of the civil Court was not effective except in regard to the three wells which were the subject‑matter of dispute in the suit is the same which was raised on behalf of the respondents before the A. D. C. In fact it appears from the order of the A. D. C. that the respondents' objection was limited only‑to `other areas' and did not extend to the implementation of the civil Court's decree in regard to the Shamilat area in dispute in that suit. The learned counsel cannot, in view of this concession made before the A. D. C., be allowed to raise a question of fact that the respondents were not a party to the suit. This cannot be believed. It may be realised that in proceedings for general partition started in the twenties, the Revenue Officer had in 1927 ordered the implementation of the civil Court's decree of 1908 and treated the Shamilat to measure 16055 kanals plus 2936 kanals 19 marlas which is almost equal to the area of Shamilat as calculated by the Collector. All the land‑owners must presumably have been party to these proceedings. None of them challenged the order even by a civil suit. It, therefore, appears to me that the argument about the respondents or their predecessors not being a party was raised at tfiis belated stage after about five decades in order to escape the overall effect of that decree. Even if it is assumed that this objection is factually correct, it will not help the respondents. The Chief Court had after the interpretation of the Revenue record dating back to the regular settlement had come to the conclusion that what was Shamilat area at no stage became exclusively owned by the land‑owner to whom it was awarded in any partial partition. This interpretation itself has almost a binding effect wherever that principle be applicable. Indeed the case of the respondents as stated by their learned counsel is not even as strong as the case before the Chief Court. There the plaintiffs had relied upon partition proceedings of 1861 in support of the plea of their exclusive ownership of the area provided to them in that partition. In the present else it was conceded by the learned counsel that the respondents as proprietors had taken over possession of different ,areas of Shamilat since 1856. They can therefore at most claim to be in Hissadari Qabza of joint area which must by its nature be adjustable against ,their entitlement at the partition.

15. I may now consider the question whether the decree of the Chief Court was applicable or its principle can be implemented at the stage of consolidation of holdings. In this connection, two arguments were addressed to me by the learned counsel for the respondents. Firstly he argued that the consolidation authorities are bound to act in accordance with the entries in the Jamabandi prepared preceding the start of the consolidation proceedings. Secondly he contended that the Chief Court's judgment can at the most be implemented at the time of general partition. The Consoli dation of Holdings Ordinance in its section 23 provides a bar against the ,commencement or continuation of any partition proceedings till the conclusion of the consolidation proceedings. In view of this provision the land in the estate under consolidation cannot be the subject‑matter of a general partition during the proceedings of consolidation and as such no stage can arrive for the implementation of the Chief Court's decree.

16. The first objection is not difficult to repel. I have already held ‑that the Revenue record as existing at the time of the institution of the suit ,decided in the first decade of this century and continued later on, must be read subject to the decision arrived at by the Chief Court or to the principle enunciated there. It is conceded that the Revenue record prepared so far has been prepared without considering the effect on title of the land. owners .in the estate, of the Chief Court's decree. The reason for this is evident, there has never been any actual general partition in the estate. The proceedings of general partition were once started in the third decade of :the century, but they remained inchoate and were never finalised by an .actual partition. The entries of the Revenue record in regard to what was' a Shamilat area in the year 1856 are, therefore, subject to title of all the land‑owners and not only of those persons whose names are actually recorded in the Revenue record. In these circumstances, even if the consolidation authorities be bound to act in accordance with the entries in the last Jamabandi, they must decide the title, if ever any question of title arises rbefore them, in accordance with these entries as subject to correction by ,the principle settled by the Chief Court. The consolidation authorities have i no jurisdiction while determining the entitlement to ignore that decree. In this connection I may refer to section 16 of the Ordinance which provide for allotment of the same rights to the land‑owners as were held by ‑them prior to consolidation. The principle that consolidation does not affect existing right is well settled in Imam Din v. Mst. Said Bibi' . and others (P L D 1948 P C 290), Qaim Din v. Said Ahmad and another (P L D 1967 Lah. 1171). There can be no doubt that the rights held by the land‑owners before consolidation must be allotted to them in consolidation. If the Chief Court's decree is ignored, it will result in excess allotment to some of the owners and in loss to others.

17. Even if it is conceded for the sake of argument that the authorities under the Ordinance in view of the instructions issued for the guidance of ,consolidation staff, can only act in accordance with the Jamabandi as ,existing on the date of initiation of consolidation proceedings, the solution lies in their applying to the relevant Revenue Officer for the correction of those entries in the light of the decree.

18. Paragraph 23 of the instructions which makes the last register Haqdaran Zamin to be the basis of consolidation also envisages amendment of the register by the preparation of Fard Badar. This amendment, no doubt, is confined to incorporation in the register of subsequent events. But it does recognise the principle of the revenue record being subject to correction by the Consolidation Staff. This instruction cannot be deemed to be exhaustive and cannot be read as barring the jurisdiction of the Consolidation authorities to act in a manner so as to advance the remedy provided by section 16 of the Ordinance. Alternatively, however, it cannot jurisdiction of the Revenue Authorities to act in aid of the Consoli Jama‑i bar the dation Authorities by preparing a Fard Badar for correcting the existing bandi in the light of past events. The judgment in Ehsan Elahi etc. v. Waryam etc. (1) relied upon on behalf of the respondents should be read in the light and subject to these observations.

19. The question whether the consolidation proceedings involve or envisage any partition of the Khata and the question of effect of section 23 . of the Ordinance about bar of partition in the estate raises some difficult problems. Mr. Anwar Butter, Advocate assisted me on these points as ‑amicus curiae.

20. The scope of section 23 was considered by K. E. Chauhan, J. my great detail in Qadir Bakhsh and 9 others v. Board of Revenue (Cons.), Puniab and 28 others (2). It was held that although no partition by metes and bounds can be made by Consolidation authorities, but they have powcr to make distribution of the land if it be so necessary for consolidation proceedings.

21. Mr. Anwar Butter argued that the provision of section 23 should be strictly construed so as to meant only a partition initiated before a Revenue Officer under the Land Revenue Act, but it cannot include within its scope a private partition of the property which is generally subject to review at the time of partition under the Land Revenue Act. He argued that such partition is not only barred by the Consolidation of Holdings Ordinance, but in fact the competence of the land‑owners to effect. such partition is recognised. He referred to paragraph 14 of the instructions which allows partition with the consent of the land‑owners. He further referred to the analogy of section 24 which places an embargo on the power of a land‑owner to transfer or otherwise deal with any part of his holding, so as to affect the right of any other land‑owner except with the sanction of the Consolidation Officer and argued that just as the object of placing this embargo on transfer is to preserve status quo of the revenue record so that all the changes made therein must be within the knowledge of the Consolidation authorities, the object of section 23 is also the preserva tion of the same status quo.

22. The learned counsel for the respondents on the other hand referred to the definitions of Consolidation Officer and Revenue Officer in sections 2(c) and 2 (e) of the Ordinance and argued that a Consolidation Officer not being a Revenue Officer and power to partition under the Land Revenue Act being vested only in the Revenue Officer, a Consolidation Officer will have no jurisdiction to make any partition or even sanction a private partition., (1) P L D 1974 Rev. 69 (2) D 1973 Note 13 at p. 22 The learned counsel for the petitioners in reply urged that by its nature, the consolidation proceedings is in the nature of partition proceeding.

23. I think there is substance in the argument of Mr. Anwar Butter and the learned counsel for the petitioners. The partition barred under the provisions of section 23 of the Ordinance is a partition as envisaged by the Land Revenue Act and not a private partition or re‑distribution of land during consolidation proceedings. This is what was also decided in P L D 1973 Note

13. A private partition unless recognised under the provisions of the Land Revenue Act by itself is not a partition as contemp lated by the provisions of the Land Revenue Act and may be that in certain cases the allotment made in that partition may be disturbed on a general partition, if all the land‑owners owning the land jointly are not party to such a private partition. If, however, the private partition is between and with the unanimous consent of all the land‑owners, it may not be possible for a Revenue Officer to interfere with it under the provisions of the Land Revenue Act, because of the necessary implication of such partition that the severance of the property and its being held in severalty may vest land owner with title over the area obtained by him in such partition. For this reason there may be nothing left for the Revenue officer to exercise his jurisdiction. Similarly there may be cases where partition may have been carried on by an arbitrator appointed by the parties. Such partition also cannot be set aside by the Revenue Officer under the Land Revenue Act since the effect of the partition through arbitration is that it will raise a question of title. Sardar Wasawa Singh v. Sardar Arur Singh (63 P R 1893). On the same analogy it may be safely held that the land‑owners may decide among themselves to vest the Consolidation authorities with power to partition joint areas under the consolidation. This consent will make the ensuin partition as a private partition. The argument of Mr. Butter appears to be correct that the object of section 23 is to preserve status quo of the record and to bar for this purpose the rights of authorities under parallel legislation to disturb a status quo. It does not take away the contractual right of the land‑owners to partition their area voluntarily and with their free consent and to apply to the Consolidation authorities for deciding their title as envisaged by section 16 keeping this private partition in view. This analogy can be safely extended to a partition through private arbitration or through the Consolidation authorities. The effect of partition by mutual consent or through the agency of universally accepted arbitrators or even through the consolidation staff, may be that a Revenue Officer acting under the Land Revenue Act may be left with no jurisdiction to partition the same areas under the Land Revenue Act. The instructions allowing partition with the consent of the land‑owners are justifiable for this reason.

24. These instructions are also justifiable because of the partition in certain cases being a necessary incident of consolidation of holdings. The consolidation of holdings in section 2 (f ) of the Ordinance has been defined as meaning the re‑distribution of all or any of the lands in an estate so as to reduce the number of plots. The object of consolidation is to do away with fragmentation of holdings which is one of the serious drawbacks in the way of bringing about agrarian reform. It necessarily involves the pooling of all the land in the estate with a view to its allotment to land owners. A scheme of consolidation is thereafter prepared. It is insisted upon generally that the scheme should be mutually agreed upon. First the areas which are reserved, for common purposes such as grazing ground, school, hospital or pond, the disposal of sullage water or for any other, special reason, are excluded from the scheme. In order to find out the entitlement of the land‑owners areas varying in quality are classified into different categories and the respective value of such classification is determined. Under section 25 of the Ordinance, consolidation of holdings shall be carried out on the basis of Kills‑bandi where the physical features of the tract under operation permit such a course. The identity of the land is lost by Killa bandi operations. Although according to the instructions issued by the Board of Revenue, the consolidation of holdings of a land‑owner should be made as far as possible near the area where he had his bigger block, but in some cases this course may be rendered impossible. It is no doubt true that it may be possible for the Consolidation authorities to allot the areas of joint land‑owners as joint, but this may create anomaly in many cases. One such case may be where the land‑owner his some of his area separate while the balance of his area is joint with others. It may be that if the joint areas are also separated, he may be given his entire land in one block. If however, the consolidation is affected separately of the joint areas, it may not be possible to reduce the number of plots. In some cases the number of plots of such a joint owner may be substantially increased. Now this will not be a consolidation‑it will be a de‑consolidation. Rarely any land‑owner in these circumstances, may like that some of his areas may still remain joint. Generally the land‑owners insist upon separation so that their blocks may be reduced as much as possible to enable them to cultivate their entire land more cheaply and more efficiently and to enable them to work hard in order to increase the productivity of the areas under their ownership and possession. The consolidation of holdings, therefore, must by its very scheme entail the partition of such joint areas.

25. Another instance is of the allotment of what is known as Shamilat Deh. The customary law about Shamilat is that individual land‑owners can bring different areas of such Shamilat under cultivation. They can maintain their exclusive possession of such areas till their partition in which case they may have to surrender the area held by them in excess of their entitle ment or to claim allotment of more area, if the areas in their possespion are deficient as compared to the area to which they are entitled. There may, however, be areas which may be lying uncultivated. The formation of one block of the Shamilat Deh so as to keep it still notionally joint is not in accord with the object of consolidation. In fact in a number of cases it may frustrate the object of the law and no land‑owner may have sufficient inventive to bring into cultivation Banjar areas for reasons that such areas may be at a distance from his other holdings. In some cases on account of hostilities among members of the land‑owning community in the village, no party may be able to exploit such joint areas. It, therefore, appears to me clearly an incident of consolidation that these areas may be partitioned between the individual land‑owners and area allotted to them in consolidation in lieu of areas which were once part of Shamilat may be made available to them in as less a number of plots as possible. If the partition of property as a necessary incidence of consolidation is possible in these two given cases, I do not see why it should be disallowed in other cases. I am, therefore, of the view that partition of holdings can be an incident of consolidation and paragraph 14 which allows partition with consent is, therefore, amply justifiable.

26. In the present case a unanimous consent to p&tition of the Shamilat area was given in the Tariqa‑e‑Taqseem (Annexure `C') This document was prepared with the consent of all the land‑owners and members of the Advisory Committee. Regarding other joint areas it was stated that they will be subject to separation or partition with the consent of the joint owners in particular Khatas. There is therefore concensus among all the land‑owners about partition of Shamilat. No dispute was raised in the agreement about the area of Shamilat. This area could therefore be worked out on the principle enunciated by the decree of the Chief Court. The Collector rightly held the Shamilat to equal to 19,000 and odd kanals. The orders of the Additional Commissioner and Board of Revenue were, therefore, passed without lawful authority.

27. Before concluding this judgment I may refer to a question of abatement of the writ petition raised by the learned counsel for the respon dents. It is conceded that some of the petitioners namely, Fateh Muhammad, Rehan and Murad I.e. petitioners Nos. 8, 32 and 33 died during the pendency of this petition on 2‑11‑1971, 29‑12‑1971 and 7‑11‑1970 respectively. Jumma Shah respondent No. 4 and Muhammad Shah respondent No. 14 died on 11‑4‑1960 and 12‑11‑1967 respectively. All these deaths occurred before the enforcement of the Law Reforms Ordinance, 1972 which annulled the law of abatement. Ahmad petitioner No. 30, Bahawal petitioner No. 38, Qadir Shah petitioner No. 24, Murad petitioner No. 17, Gul Shah respondent No. 3 and Jinday Shah respondent No. 5 also died, but they expired after the enforcement of the said Ordinance. The deaths of these persons who died after the enforcement of Law Reforms Ordinance do not affect any abatement. The petition in regard to other persons, namely petitioners Nos. 8, 32 and 33, and respondents Nos. 4 and 14 stands abated.

28. The learned counsel for the respondents contended that this abatement is total and not partial. I do not agree with this contention. All the land‑owners must be entitled to specific notional shares in the Shamilat. The abatement caused by death of some of the land‑owners can affect only their own entitlement. These deaths, however, do not affect the present writ petition which could be filed even by one of the land‑owners with the same result. The impugned orders do not in fact disturb the entitlement. They on urport to lay down that the civil Court's decree cannot be implemen :d at this stage. Although the Board of Revenue has made some observations that the civil Court's decree should have been followed by another suit, but in fact it has confirmed the order of the Commissioner. The only question, therefore, in these cases is whether this is the stage for implementing the civil Court's decree. I have held that this is the proper stage. This finding could have been given on a writ petition of even one of the land‑owners. The partial abatement of the writ petition, therefore, does not affect this finding which can be availed of by all the land‑owners.

29. The upshot of this discussion is that the writ petition is allowed with costs and the two impugned orders, one of the Additional Commissioner in Annexure 'G' and the other of the Board of Revenue in Annexure `I' are declared to have been passed without lawful authority. The order of the Collector in Annexure 'B' will hold the field. s. A. A, Petition accepted.