MUHAMMAD NAWAZ KHAN Versus MEMBER, BOARD OF REVENUE

1. The petitioner purchased land measuring 64 kanals in the revenue estate of Muzaffarpur Shamali Tehsil and District Minawali vide Mutation No.3858 attested on 4‑6‑1974 for a consideration of Rs.26,600. Respondent No.2 alongwith one Hayat filed a suit for possession of the said land by pre‑emption on the ground that the same is included in the non‑occupancy tenancy. The suit was resisted by the petitioner, who asserted that the pre‑emptors were not occupying the suit land as tenants on the date of sale. The Collector framed issues, relevant being issue No.3 which was:‑‑

2. The evidence was recorded and the suit was decreed in favour of both the pre emptors subject to payment of Rs.26,600. Feeling aggrieved the petitioners filed an appeal which was heard by the Additional Commissioner (Revenue), Sargodha, who allowed the same and found that respondent No.2 was not tenant in Khasra Nos. 1709/3, 4, 5 and 6 measuring 32 Kanals during Rabi 1974 at which time the sale took place and that it was only in Kharif 1974 that Respondent No.2 finds mention in Khasra Girdawari in the said land. As a result of the finding the Additional Commissioner set aside the decree of the Collector to the extent of respondent No.2 and passed a decree in favour of said Hayat in respect of 16 Kanals of land comprising Khasra No.1709/1, 7/2, 8 for a consideration of Rs.6,650. It appears that the petitioner felt satisfied with the said decision, however, respondent No.2 filed a revision which was allowed by a learned Member of Board of Revenue, Punjab, Lahore, vide order dated 21‑3‑1982. Mr. Muhammad Zafar Chaudhary, learned counsel for the petitioner argues that the impugned order of the learned Member is conjectural and is neither supported by the evidence on record nor is the same in accordance with law. Raja Mahmood Akhtar, learned counsel for the respondents, on the other hand, tried to support the impugned order.

2. It may be stated in the very beginning that the learned Member did not disagree with the learned Additional Commissioner, that in Rabi 1974, the respondent was not recorded as a tenant in the suit land. The learned Member, however, observed that since in Rabi wheat was sown while in Kharif 1974 cotton was sown" it is matter of general knowledge that the wheat is harvested by the end of April, . in Mianwali and cotton is sown in May", on the said hypotheses the learned Member concluded that on the date of sale crop must have been sown and it should be presumed that the respondent was a tenant as he was recorded to be in possession in Girdawari of Kharif 1974. He further observed that the respondent must have sown the said crop. I tend to agree with the learned counsel for the petitioner that the said observation is at best a conjecture, neither is there any material in support thereof nor has any been referred to by the learned Member in his order. The learned counsel for the respondent has also been unable to show me any material on the file in support of the said surmise of the learned Member. A very significant aspect of the case is that the mutation by which the petitioner purchased the land in Suit i.e. No.3858 was, incorporated in the crop register in Rabi 1974. This was obviously done as the agricultural year vas to end on 15‑6‑1974 and the mutation has been attested on 10‑6‑1974. In a case arising in similar fact; and circumstances where on similar conjecture, entry in the Girdawari was tried to be related back, it was observed by the Supreme Court of Pakistan, with reference to an earlier decision in the case of Ghulam Hussain and others v. Sardar Khan and other (PLD 1956 SC 309) "where the dispute was whether doner had parted with the possession of land which form the subject of gift and the reliance was on such an entry in the Khasra Girdawari and the effort was to relate it back to the time of the sowing of the crop of which entry in the Khasra Girdawari was made. It was held that the entries in the revenue record are presumed to relate to the state of affairs prevailing at the date on which they are prepared." Agreeing with the said' observation, the "argument that the entry at the time of Rabi 1974, crop inspection should be presumed to relate back to the sowing of crop in Kharif 1973, (the date of sale in the said case was 11‑10‑1973) was repelled and it was held that the person claiming to be a tenant was not a tenant during Kharif 1973, when the sale took place (reference to Khadim Hussain and others v. Muhammad Nawaz Khan (1981 SCMR 1183). In the present case learned Member undertook a speculative exercise by trying to relate back the entry of Kharif 1974 to 10‑6‑1974, when the sale took place. This was not legally permissible in view of the law laid down by the Supreme Court in the cases referred to above. The impugned order of the learned Member is, therefore, without lawful authority and is declared as such. The result would be that the order and decree dated 2‑5‑1979 of Additional Commissioner (Revenue), Sargodha Division, shall stand restored.

3. H.B.T./M‑1230/L

4. Petition accepted.