1992 MLD 2053

NABI KHAN Versus GHAFOOR KHAN.

Citation1992 MLD 2053

CourtBoard of Revenue, Punjab

Case No.R.O.R. No.1533 of 1988

Judge(s)Hafeezidlah Ishaq, Member (Consolidation)

ResultRevision accepted

ORDER

This revision petition has been filed under section 13 of the Consolidation of Holdings Ordinance, 1900, against the order dated 10‑8‑1988, passed by the learned Additional Commissioner (Consolidation), Lahore Division, whereby he dismissed the appeal of the petitioners.

2. Brief facts of the case are that the Consolidation Scheme of village Ucha Pind, Tehsil Ferozewala, District Sheikhupura was confirmed under section 10(3) of the Consolidation of Holdings Ordinance, 1960, by the Consolidation Officer by his order dated 28‑11‑1978. The petitioners feeling aggrieved filed an appeal before the Collector (Consolidation), who, vide his order dated 13‑5‑1980, accepted the same and held the amending note to be a void one, resulting in restoration of fields Nos.22, 23 and 24 of Sq. No. 97 to the Khata of the petitioners.

3. The Consolidation Officer had recorded a similar amending note in the Khata of the respondent also on 28‑1‑1988 making certain adjustments including those relating to Killas Nos.23 and 24 of Sq. No.97, which were withdrawn from the Khata of the petitioners, thus implying double allotment of these khasra numbers: The respondent filed an appeal of his own against his amending note dated 28‑11‑1978 before the Collector (Consolidation), after the acceptance of petitioners' appeal who accepted this appeal but remanded the case to the Consolidation Officer vide his order dated 21‑11‑1982. The Consolidation Officer rejected the appeal on 18‑2‑1984. The respondent again went up in appeal before the Collector (Consolidation), who, vide his order dated 22‑6‑1987, remanded the case a second time to the Consolidation Officer for putting up fresh proposal, after hearing the parties, in the light of the order of Collector (Cons.) dated 21‑11‑1982. The petitioners preferred an appeal before the Additional Commissioner (Consolidation), who, vide his impugned order, rejected it holding in his impugned order that since the Consolidation Officer to whom the case was remanded in the first instance, failed to rectify this patent error in the record the Collector (Cons.) was fully justified to remand the case. Hence this revision petition.

3. The learned counsel for the petitioners argued that since the Collector (Cons.) had decided the matter in appeal vide his order dated 13‑51980 there was no provision in law for him to review his own order by subsequent orders dated 21‑11‑1982 and 22‑6‑1987. The order dated 13‑5‑1980 had attained finality as it was never challenged before any forum. As regards the entitlement of the parties, the petitioners were owner of land measuring 197 Kanals 5 Marlas prior to consolidation but had been given only 179 Kanals 1 Marla in consolidation proceedings and had thus suffered a deficiency of 18 Kanals 4 Marlas whereas the respondent, who was owner of 134 Kanals 7 Marlas prior to consolidation had been benefited by increasing it to 160 Kanals 16 Marlas during the consolidation operations. Khasras Nos.97/22, 23 and 24 i.e. the disputed land, were previously owned and possessed by the petitioners and the respondent had nothing to do with it.

4. The learned counsel for the respondent contended that the area given to the petitioners in appeal was withdrawn from him but no area was given in exchange. The petitioners were given 18 Kanals 8 Marlas and an area of 11 Kanals should have been withdrawn from them but only 5 Kanals 14 Marlas was withdrawn. The order of the Collector (Cons.), remanding the case to the Consolidation Officer, dated 21‑11‑1982 has been passed after a spot visit. The Consolidation Officer's order dated 18‑2‑1984 was incorrect because the respondent did not get anything. The Collector (Cons.)'s order dated 22‑6‑1987 was not a review of his previous order but a direction to implement the order dated 21‑11‑1982 and it was not a final order. In fact there was no appeal against the Collector (Cons.)'s order dated 21‑11‑1982 and, therefore, it had also attained finality. The present revision was directed against two orders and was therefore, not competent: The learned counsel further emphasised that it was a case of double allotment; Khasras Nos.97/22, 23 and 20ad also been allotted to the petitioners as well as the respondent.

5. Exercising his right of reply, with permission of the Court, the learned counsel for the petitioners stated that the question of double allotment had not been raised for a long time and the respondent had managed this double allotment in collusion with the consolidation staff.

6. I have considered the arguments, seen the case record and the record produced by the Patwari. Unfortunately the Patwari's record was severely affected during the ‑floods of 1988 and it is not possible to look into the respective contentions of the parties regarding double allotment. However, from the Khatauni Ishtimal it is possible to ascertain that the land in dispute i.e. Khasra No.97/22/1 measuring 4 Kanals and. 97/23 measuring 7 Kanals 8 Marlas, was previously owned by the petitioners and the respondent had no preferential right over it. The petitioners had preferred an appeal against the confirmation of the scheme on 28‑11‑1978, which was accepted and the amendments. made by the Consolidation Officer after the confirmation of the scheme were held to be made without jurisdiction and hence illegal. Khasras Nos.97/22/2, 23 and 24 were, therefore, restored to the petitioners. The respondent never took the plea of double allotment at that stage. His grouse against Nabi Khan, Sami Khan sons and Noor Bibi daughter of Munir Khan, in his appeal preferred on 16‑6‑1980 i.e. after the acceptance of the present petitioners' appeal by the Collector (Cons.), was that they were given Khasra No. 97/3 in excess of their entitlement. There were other persons besides the present parties who were impleaded as respondents in that appeal i.e. Tabu and Taju sons of Kailu. The question of double allotment regarding Khasra No.97/23 does not figure in that order and although the amendments were held to be infructuous yet the order does not mention the particular khasras numbers of which the‑ double allotment had taken place and, therefore, the remand of the case to the Consolidation Officer, in so far as Nabi Khan etc. were concerned, was unnecessary‑ If the learned Collector (Consolidation) had held in the case of Nabi Khan that the amending note, after confirmation of the scheme, was illegal, then the same principle should have been applied to the appeal filed by the respondent, and, therefore, cancellation' of the amending note would have served the purpose as it would have restored the previous position of the schemes as they stood at the time of confirmation. However, no such double allotment was detected by the Consolidation Officer and the respondent's remanded appeal was, therefore, dismissed. A persual of photocopies of petitioners' scheme No.30 (produced by the respondent's counsel) shows that Khasras Nos. 97/22/1‑2, 23, 24 were proposed, verified and confirmed at columns Nos.5, 8 and 10 respectively. However at respondent's scheme No.42 (photo copies produced by respondent) Khasras Nos.97/23, 24 were proposed in column No. 5 but neither verified by the Kanungo at column No.9 nor confirmed by the Consolidation Officer in Column No.10. Hence there is no question of double allotment of these khasras numbers which seems to have been created through illegal amending notes by some one subsequently for mala fide reasons. The Collector (Cons.)'s order dated 22‑6‑1987 again remanding the case to the Consolidation Officer is not a speaking order in so far as it does not mention any reason for remanding the case. The learned Collector (Cons.) does not seem to have applied his mind to the facts of the case at all and he also lost sight of the fact that Tabu and Taju, who were respondents in Ghafoor Khan's appeal before him did not appear in the subsequent proceedings before the Consolidation Officer or before him for making adjustments in their khata in case there was double allotment.

7. In view of the foregoing discussion it is apparent that the Collector (Cons.)'s order dated 22‑6‑1987 cannot be sustained and is accordingly set aside as is the impugned order dated 10‑8‑1988. The respondent has raised the question of shortfall in his entitlement as stated in para 4 of this order. However, when the question is considered in its entirety it appears that the respondent has not suffered on this account but only benefited from consolidation. proceedings as is evident from the following table:‑

Name