Muhammad Bakhsh VS MBR etc

Stereo. H C J D A 38

JUDGMENT SHEET

LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W. P. No. 5825 / 2005

Muhammad Bakhsh (deceased) through legal heirs and others

VERSUS

Member Board of Revenue and 11 others

JUDGMENT

Date of Hearing 09.04.2025 Petitioner(s) by: Sardar Tariq Sher Khan, Advocate Respondents No. 1 to 3, 11 Ms. Samina Mahmood Rana, Assistant & 12 by: Advocate General Respondents No. 4 to 10 Proceeded exparte vide Orders dated by: 21.04.2022 and 07.11.2023

ABID HUSSAIN CHATTHA, J. This constitutional Petition is directed against the impugned Orders dated 27.02.1996, 13.11.1997, 23.10.1999 and 07.08.2004 passed in the revenue hierarchy and prays that the Petitioners be entered as Murtehnan in consolidation scheme.

2.The precise claim of the Petitioners is that they were cultivating the suit property and were in physical possession of the same as Murtehnan / tenants as evident from column No. 4 of record of rights for the year 1965- 66 but the suit property was never got redeemed by the mortgagor, thus, consequently, the entries would remain intact in the revenue record and the consolidation officers by way of consolidation scheme had no power or authority to change the same. As such, in the consolidation scheme, the Petitioners were required to be recorded as mortgagees while carving out any Wanda and should have been arrayed as party to consolidation proceedings right from the operation of Scheme or confirmation of Wandas. The Petitioners questioned their right as soon as they got knowledge of the fact that they have been deprived from the same.

W. P. No. 5825 of 2005

3.The record depicts that claim of the Petitioners has been rejected through the impugned Orders. In this context, the last impugned Order dated 07.08.2004 passed by Member Consolidation, whereby, ROR Nos. 998 & 999 of 2000 were dismissed, encapsulates the facts and reasoning on the basis of which the claim of the Petitioners was denied in the impugned Orders. The operative paragraph No. 4 thereof is reproduced as under:- “I have very carefully heard the arguments and perused the record. It is revealed from the record (misal Haqiat-1965-66) that Miro s/o Azeem predecessor-in-interest of the Petitioners was its one of the tenants cultivating a portion of land which comes to about 66/768 shares. They were not owners of the land in dispute and as such were not entitled to any share or wanda in consolidation. Some of the land owners had mortgaged land to the Central Govt. but the petitioners cannot claim any benefit from such a transaction. It is further revealed from the old record that the petitioners were shown as “Murtehanan Sood Kasood” Braber ( ) سود کسور برابرin column No.4 meant for the tenants against khasra No.95/16, 25, 31, 15/1, 96/20, 21 measuring 39-K, 16-M. They had no share in Khana Malkiat in the record of rights. The same entry was repeated in the Jamabandi Zer Kar pertaining to the year, 1986-87. The petitioners were neither land owners nor even mortgagees of the owners. They were merely mortgages in Khana Kasht. That being the case, they had no locus- standi. A person who is only cultivating the land has no right to obtain any share. The respondents being the share holders got their wandas framed according to their entitlement and in this way the petitioners' rights were not infringed. It was rightly observed by the learned lower court that longstanding entries in the owners' column in Jamabandi have not been changed. Learned Lower court also took into consideration of the inordinate delay of 3-1/2 years which was not condoned. I do not find any grounds to interfere with that order also as the petitioners have not been abłe to satisfactorily explain as to why and how the delay occurred. Learned lower court has passed a very detailed and exhaustive order and no injustice has been done nor any right of the petitioners infringed.”

4.Before proceeding further, it is pertinent to reproduce the operative part of order dated 12.04.1997 read with order of correction dated 05.06.1997 passed by Additional Commissioner (Consolidation), Multan Division, Multan which recognized the claimed right of the Petitioners. The operating part thereof is reproduced as under:- “In the light of above arguments, the record was perused. It is found that in the Land Reforms, field No.95/16 and 25 were surrendered by Ghulam Abbas and Nadir Abbas who were joint owners. And again this area was allotted to the tenants of these numbers by the Deputy Land Commissioner. In the wanda of respondents Akbar etc. field

W. P. No. 5825 of 2005

Nos. 95/10/1 and 16/2 were included. In fact by accepting the appeal, the holding of respondents is not reduced. Only a long outstanding entries which has been obliterated without any valid order require rectification. The respondents are affected to the extent of field No.95/16/2 only. The appeal to the extent of correction is accepted. Status with regard to the column of ownership and tenant will remain intact.”

Note: Field Nos. 95/10/1 and 16/2 was corrected as per corrigendum order dated 05.06.1997 as 95/15/1 and 16/2.

5.It is evident from the above that the impugned Orders did not truly appreciate the grievance of the Petitioners which was limited qua their entry as Murtehnan and / or tenants in the consolidation scheme which is duly recognized in terms of Section 16 of the Punjab Consolidation of Holdings Ordinance, 1960 (the “Ordinance”) which is reproduced for ready reference as under:- “16. Rights of Land-owners and Tenants after consolidation same as before.- A land-owner or a tenant shall have the same right in the holding or land allotted to him in pursuance of a scheme of consolidation as he had in his original holding or tenancy, as the case may be.”

6.It is conceded even in the impugned Orders that predecessor-in- interest of the Petitioners was in cultivating possession of a portion of land which was part of consolidation scheme as mortgagee. It is admitted that there were long standing entries in favour of the Petitioners in this regard in the cultivation column. It is also acknowledged that land surrendered in the Land Reforms by some of the owners to the Central Government had been allotted to the Petitioners as tenants. As such, long standing entries as mortgagee and / or tenancy rights of the Petitioners in the cultivation column existing prior to the scheme of consolidation could not have been omitted in view of Section 16 of the Ordinance. It is not the case of the Petitioners that they were owners of the land or entitled to any share in the Wandas in the consolidation scheme. Further, the Petitioners had adequately explained the delay in agitating their claim on the ground that they had no notice of the consolidation proceedings which fact is borne out from the record. Hence, the delay stood condoned by order dated 12.04.1997. Therefore, the Petitioners were entitled for restoration of long standing entries existing in revenue record in their favour prior to the scheme of

W. P. No. 5825 of 2005

consolidation. For reference see cases titled, “Muhammad Habib v. Lal Din, etc. (K.L.R. 1983 Revenue Cases 27); “Muhammad Ehsanul Haq and 4 others v. Khair Muhammad and 2 others” (PLD 1981 Rev.20); and “Mst. Alam Khatoon nd others v. Mst. Alam Khatoon and others” (1992 CLC

7.In view of the above, this Petition is allowed; the impugned Order dated 07.08.2004 is set aside; and in consequence thereof, the case is remanded to the concerned Member Board of Revenue for his decision afresh in accordance with law.

(Abid Hussain Chattha) Judge

Approved for reporting.

Judge *Abu Bakker*