AKBAR ALI Versus THE STATE
ORDER
These two revision petitions have been filed against the order of the Commissioner Multan dated 31‑3‑1970 whereby he rejected the appeals of the petitioners and upheld the order dated 24‑2‑1971 of the Collector Multan.
2. The brief facts are that tube-well lot No. 1 measuring 159 Acres 11 kanals comprising square No. 133, Killas Nos. 1 to 3, 8 to 13, 18 to 23, square No. 134, Killas Nos. 1 to 25, square No. 135, Killas Nos. 1 to 25 square No. 136 Killas Nos. 1 to 8, 10, 11, 13 to 25 square No. 137 Killas Nos. 1 to 25, square No. 138 Kills: Nos. 1, 2, 9, 10, 11, 20, square No. 139 Killas Nos. 1 to 25, square No. 140 Killas Nos. l to 25 situated in Chak No. 105/15‑L, Tehsil Khanewal District Multan was allotted to Akbar Ali etc. in 1959 as under:‑
(i) M/s. Mumtaz Ahmad, Ijaz Ahmad . . 1/20 share
(ii) Akbar Ali petitioner ... .
(iii) Khair Din ... 1/3 ..
(iv) Nawab petitioner ... 1/6 .. out of 19/20 share
A rift arose among the allottees and they failed to abide by the conditions. The result was that the Collector resumed the lot on 24‑2‑1971 on account of the following breaches of the conditions
(i) Khair Din allottee petitioner sold part of the land without permission.
(ii) The allottees defaulted in payment of rent amounting to Rs. 5,104.10.
(iii) The area remained undeveloped.
The petitioners went in appeals before the Commissioner but failed. Hence these revisions.
3. Ch. Qadir Bakhsh Advocate counsel for Khair Din etc. petitioners applied for bringing on record the legal representatives of Nawab Din petitioner No. 1 in R. O. R. No. 147 of 1971‑72 because Nawab Din has died. The request was granted. The learned counsel has also put in power of attorney by the heirs of Nawab Din in his favour.
4. It was argued on behalf of Khair Din etc. that the land In dispute was allotted to the petitioner Khair Din etc. and respondent Akbar Ali as under:‑
Nawab Din deceased ... ... 1 square
Khair Din ... ... 2 squares
Akbar Ali, Mumtaz Ahmad and Ijaz Ahmad. 3 squares.
The petitioners incurred heavy amounts in making the laud cultivable and in installing a tube-well; that some internal differences between the allottees arose and they applied to the Collector to separate their shares and allow them to deposit the rent separately according to their shares in the lard but the land was resumed on 2‑s‑1970. On appeal by Akbar Ali the case was demanded for hearing the parties but the Collector again by his order dated 24‑3‑1971 resumed the land. It was further argued that the allegations that Khair Din petitioner had sold the land without permission is incorrect. It was contended that in fact one Mumtaz Ahmad at the instance of Akbar Ali, fabricated a false power of attorney from Khair Din allottee, and that the peti tioners Khair Din etc. had paid Rs. 2,552 on account of rent.
5. Against it, the learned counsel for Akbar Ali argued that in fact it is Akbar Ali who had invested the entire amount in this venture; that it is he who deposited Rs. 6,000 on account of rent and that he had spent more than 20,000 rupees in improving the land; that he is in possession of all the receipts of expenditure and the other co‑sharers i.e., Khair Din etc. cannot produce even a single receipt. It was also contended that Khair Din sold his share but Akbar Ali did not know it because the possession was with him and he was doing cultivation, and that Akbar Ali is being penalised for the fault of others. As the Interest of Akbar Ali was involved in the land he only agitated against the resump tion order and the case was remanded on his appeal. The Commissioner gave an opportunity to the parties to reconcile their differences between themselves but they did not try to do anything. According to the Khasra Girdawari Akbar Ali is in possession of the land, and is doing cultivation and has installed tube-well in square No. 137, Akbar Ali also stated that he has paid rent of his share up to Rabi 1971. The last payment of Rs. 1,189.72 was made on 16‑3‑72.
6. It was, on the other hand, argued on behalf of Khalr Din etc. that it is wrong to say that the entire rent has been paid by Akbar Ali because the receipts of payments Indicate the name of all the allottees and not the name of Akbar Ali only; that the Commissioner bifurcated the amount of arrears of rent among the allottees and Khair Din and Nawab Din paid Rs. 2,552 on 18‑9‑1970. Khair Din, however, admitted that he and the heirs of Nawab Din have not paid the rent 9n respect of Kharif 1970 and Rabi 1971.
7. Muhammad Sadiq Patwari who was present in Court stated that the lot measured 159 acres, 11 marlas of land, and that according to his record the possession of the lot was delivered to Khair Din petitioner on 5‑2‑1960. He further stated that according to his record the position of the allotted land is as under:‑
Square No.
Condition of the land
Cultivation by
133
Banjar Qadeem uptil now
Joint cultivation.
134 do. do.
135 do.
Akbar Ali: 3/5,
Zafar Ahmad: 2/5.
136
Under cultivation
Akbar Ali: 3/5.
Zafar Ahmad: 2/5.
(Nawab Din sold his share to Zafar Ahmad).
137
Cultivated
Zaffar Ahmad: 2/5,
Akbar Ali: 3/5.
138
Banjar Qadeem
Joint cultivation by
Mumtaz Ahmad etc.
139
Cultivated
Akbar Ali: 3/5.
Zafar Ahmad: 2/5.
140
Cultivated do.
8. Zafar Ahmad who was present during hearing stated that be purchased the share of Khair Din for Rs. 50,000.
9. I have considered all the aspects of the case. It is obvious that due to friction among the co-sharers in the lot the continuation of combined operation of the lot would not work. Among the shareholders Akbar Ali has cleared up all his dues up to Rabi 1971 and is also fulfilling all other conditions of cultivation in respect of his half share of 3 squares in the lot. It is however reported that in these 3 squares Mumtaz Ahmad and Ejaz Ahmad are also shareholders equal to 1/20th share in the whole lot but in actual practice they have not taken any interest. To avoid future complications it would be desirable to resolve the point regarding their continuing their names in this half share alongwith Akbar Ali. They may, therefore, be served by the Collector with a notice under section 24 of the Colonization of Government Lands Act, 1912 why their names should not be removed from joint allotment with Akbar Ali, and separate decision taken with regard to maintenance or other wise of their names alongwith Akbar Ali.
10. So far as Khair Din is concerned it is evident from the Khasra Girdawari and his own statement before me that he is no longer in possession and his portion of lot is being cultivated by Zafar Abroad who has stated that he has purchased the share of Khair Din for Rs. 50,000 and has produced an Iqrar Nama in this regard Khair Din has also defaulted in the payment of the dues. I therefore do not see any justifiable ground for interference with the order of the lower Courts in cancelling his share of 2 squares. These two squares will stand resumed to the State.
11. As regards Nawab Din it appears from the Khasra Girdawari as well as the statement of his son Muhammad Hussain (Nawab Din has since died) that for 2 years there has been no cultivation on the land and he has not paid the arrears C of Government dues yet. In this case also, therefore, I do not see any justifiable ground for interfering with the order of the lower Courts and his share of one square would stand resumed, to the state.
12. Taking into account all the circumstances of the case, the share of two squares of Khair Din and one square of Nawab Din deceased should stand resumed to the state as per orders of the lower Courts. Akbar Ali may be allowed to retain posses sion of his share of three squares along with Mumtaz Ahmad and Ejaz Ahmad, subject to the orders contained in paragraph 9 above in respect of latter's two and subject to Akbar Ali's clearing up all the balance of Government dues. Since under the latest M. L. R. No. 115 of 1972, 50 acres have been declared as the economic holding, Akbar Ali would still be left with an economic holding in the three squares being allowed to be retained by him.
Order accordingly.