SHEIKH HAKIM ALI, J.--- With the concurrence of learned counsels for the parties, this civil revision is being taken up and disposed of as a notice case.
2. Judgment and decree dated 29-4-2004, passed by learned Additional District Judge, Bahawalnagar, dismissing the appeal and confirming the judgment and decree dated 8-10-2001, of learned Civil Judge 1st Class, Bahawainagar, has been disputed for its validity and correctness, through this civil revision by the Province of Punjab and others/petitioners.
3. Facts in brief as narrated by the learned AAG are that Muhammad Shoaib and Muhammad Kashif respondents had filed a suit to get declaration against the Province of Punjab and 2 others, with regard to lands measuring -183 kali als 3 marlas, situated in Chak No.182/7- R (afterward corrected as Chak No. 184/7-R through order of learned Civil Judge on 27-6-2002), Tehsil Fortabba, District Bahawalnagar, praying therein that they were owners in possession of the property in dispute and that the defendants had got no concern with the aforesaid lands. Report dated 4-6-1997, forwarded by the Commissioner (Revenue), Bahawalpur Division, Bahawalpur to Member Board of Revenue (Colony), order dated 24-3-1997, passed by the District Collector, Bahawalnagar and the order dated 13-5-1999, passed by the learned Member Board of Revenue, Punjab/defendant No.3, were against facts, record, and were passed without grant of opportunity of hearing, collusive, without jurisdiction and contrary to law; hence void and ineffective upon the rights of the plaintiffs. Prohibitory injunction restraining the respondent's permanently to interfere into the ownership and possession . Of the plaintiffs was also prayed for in the aforesaid suit.
4. The suit was contested by filing of written statement , in which it was entered that the alleged allotment order displaying signatures of Assistant Commissioner, Fortabbas was a forged and fictitious document. No allotment order was ever issued in favour of plaintiffs. No extension was ever granted to the plaintiffs by the Assistant Commissioner, even who had got no such power to extend the alleged lease also. No lease money was ever deposited by the plaintiffs. The allotment shown, the right of proprietorship gained and all other documents allegedly obtained were the result of fraud and forgery .Besides these factual denials of case of plaintiffs, legal objections of locus standi to file a suit and the Civil Court having no jurisdiction under Section 36 of the Colonization of Government Lands Act 1912 were raised. Issues were framed and the parties had, adduced their evidence. The suit was decreed by the learned Civil Judge while the appeal was dismissed by the learned Additional District Judge as mentioned and noted above. Hence, this civil revision.
5. Learned AAG appearing on behalf of the petitioners submits that the learned Courts below have wrongly decreed the suit in favour of the plaintiffs. The plaintiffs were never allotted the lands in dispute on temporary lease from Kharif, 1975 to Rabi 1980. There was no genuine allotment order dated 30-6-1975. In fact, the plaintiffs had got all these proceedings of allotment and proprietorship rights done from Mr. Saeed-uz-Zafar, the then Deputy Commissioner, in the year 1995, with all collusiveness. Giving the details, learned AAG has referred to Ex.D-4, copy of register of 5 years temporary cultivation, wherein no such allotment in favour of plaintiffs was ever made or entered for the above noted period. According to learned AAG, Ex.D-10 to Ex.D-13 are Jamabandis of the year 1976-77 to 1988-89, wherein the lands were never shown in their possession or to have been allotted to or cultivated by the plaintiffs. For the first time in the Jamabandi of the year 1992- 93 (Ex. D-14) in cultivation column, names of the plaintiffs were brought into and entered. This proves the fact that the plaintiffs had got this land from the aforesaid Deputy Commissioner in the year, 1995; otherwise they were not holding any lease order/allotment order in their favour. He has also referred to Ex. D-16, khasragirdawri, in which the land was shown as Ghair. Mumkin Tibba (Uncultivable Sand Dunes) and no where the plaintiffs were shown in cultivation up till 1993, when the names were got interpolated in the khasamgirdawri for the first time. He has also pointed out the statement of PW-1, Muhammad Shoaib, one of the plaintiffs, which was recorded on 19-9-2000 and aforesaid plaintiff had given his age at that time of 35 to 37.Years. According to the learned AAG, if this age as stated by the plaintiff is considered to be true and correct, then in the year 1975, plaintiff was of 10 to 12 years of age. So, this fact itself proves that the petitioner was not eligible and had not obtained the allotment, and that all the documents were fictitious and forged. It has also been argued by the learned AAG that the learned Courts below have not discussed the evidence produced by the defendants/petitioners. The plaintiffs were never residents of Chak No.182/7-R or 184/7-R but were residing in Chak No.272/HR. To prove this, he has cited Ex. D-5, voters list of 1998 wherein at Serial No. 36 and 37, 'names of the plaintiffs had appeared. He has also challenged the jurisdiction of the Civil. Court to grant the declaration under Section 36 of the Colonization of Government Lands Act, and has, thus, prayed for reversal of the judgment and decree of the learned Additional District Judge and dismissal of the suit with costs.
6. Learned counsel for the respondents has replied that the learned Additional District Judge has decided Issues No. 3-A and 3-B jointly as these issues were material and the findings were correctly rendered upon these material issues. The learned, Member Board of Revenue had decided the case of the plaintiffs without any notice or grant of opportunity to the plaintiffs. In the written statement, no plea of age of Muhammad Shoaib, plaintiff, was ever raised by defendant/petitioner. Therefore, it cannot be raised by learned AAG at this stage. Arguing the case of plaintiffs/respondents, it has also been stated by the learned counsel, that DW-1, Muhammad Shafi, Colony Clerk, had admitted that no notice under Section 24 of the Colonization of Government Lands Act, 1912 was ever issued to the plaintiffs and all the proceedings were conducted and commenced upon the inspection of the Chief Minister's Inspection Team. The Deputy Commissioner had not moved for the cancellation of the allotment/conveyance deed of the plaintiffs. Abdul Mannan DW-2, had admitted that upon the allotment order, signatures of the Assistant Commissioner were appearing on it. Tawan (illicit cultivation penalty) was imposed upon the plaintiffs, who had paid that amount. There was no order of eviction passed against the plaintiffs by any Revenue official. In Fard Taqseem Kashat, in remarks column, the names of the plaintiffs were entered. Proceedings for cancellation of Patta were commenced upon C.L.R. the application of a third person. Who had got no locus standi to file such an application. He has referred to challan forms (receipts of payment of lease money), Ex. P-2 to Ex. P-5 also. As regards to the jurisdiction of the Civil Court, he has cited 1994 CLC 317 (Karachi) (Syed Raunaq Raza versus Province of Sindh through The Senior Member, Board of Revenue, Government of Sindh, Hyderabad and 2 others), NLR 1984 (Revenue) 276 (Nawab Din versus Province of Punjab) and 1985 CLC 2817 (Ali Muhammad versus Allah Ditta and others). It has been stated by the learned counsel that payment of price of the land, if made, the revenue officials cannot afterward interfere into the ownership of the plaintiffs and the civil Court has got jurisdiction to examine it. He has also referred to PLD 1978 Lahore 1146 (Bashir Ahmad, etc. Versus Member, Board of Revenue, etc.) and F'LJ 1986 (Revenue) 11 Faqir Muhammad versus The State). Learned counsel has also pleaded that no notice was issued by the learned Member Board of Revenue as well as the Chief Minister's Inspection Team, which was necessary.
Therefore, without issuance of notice, and the proceedings were illegal. T o support his contention, learned counsel has referred to 1998 CLC 1607 (Lahore) Allah Bakhksh_and 3 others versus Assistant Commissioner, Ahmadpur East and 3 others) and 1986 MLD 2065 (Lahore) (Noor Ahmad versus (Member, Board of Revenue).
7. Before proceeding with the case and discussing the legal aspect, it is necessary to examine the factual side of the case. The case of the plaintiffs/respondents is that they were allotted the disputed lands on 5 year temporary cultivation from Kharif 1975 to Rabi 1980 and thereafter were conferred lights of proprietorship. Had paid the price of the lands and issued conveyance deed. So, the learned Member, Board of Revenue, Punjab had not jurisdiction to annul the deed of proprietorship. In the above noted version, the most important point for consideration is the genuineness of allotment,- because this is the foundation stone of whole of C L. the case of the plaintiffs. If the respondents were allotted lands in dispute genuinely, they were to be allowed to retain the lands in dispute and the conveyance deed issued in their favour could not be cancelled or annuiled, if not, then the order of cancellation of conveyance deed (Patta Malkiyat) passed by learned Member Board of Revenue is to take precedence. From the analysis and deeper examination of the documentary as well as oral evidence, it has been found by me that respondents have not been able to prove that they were allotted lands on 5 years temporary cultivation lease scheme. Ex. D-2, the application, which is shown to have been filed in the year 1975, prima facie, shows that no order by any competent officer was passed upon it for its entertainments for its allotment. The Orders, which are shown, to have been passed or issued do not display their genuineness. Not a single order shows the seal of any officer affixed to alleged signatures of any Revenue Officer. Even in those orders, there is no order of allotment ever passed by Assistant Commissioner. Alleged signatures, prima facie, prove its fakery. This application can be prepared at any time, placed and attached in any file. Rao Abdul Mannan, DW-2 had clearly stated that alleged initial allotment file which plaintiffs had got prepared contained forged signatures of Assistant Commissioner and that Muhammad Shoaib and -others were never allotted the disputed lands. He had also stated that signatures shown of Assistant Commissioner were totally different from the other genuine signatures of Assistant Commissioner upon the files . Even there is no specific and particular order of allotment passed in favour of the petitioners, making allotment in their favour i.e., the respondents/plaintiffs. Ex. D-4 is copy of register maintained for 5 years temporary cultivation, wherein no such allotment is shown to have been made in favour of the plaintiffs. This important register was not considered by the learned Courts below. The statement of Muhammad Shoaib while appearing as PW-1 and making statement on oath on 9-9-2000 and admitting his age of 35 to 37 years of age proves the fact that in the year 1975, he was hardly of 10 years of age. This material fact was missed by learned Courts, below. Therefore, a boy of 10 years could not be expected to have filed such an application and got the temporary cultivation lease. It can not be expected from revenue officials also that they might have passed allotment order in favour of such a boy.
8. There is yet another documentary cogent proof which has proved in genuineness of the alleged allotment of respondents. If the plaintiffs were granted such temporary cultivation lease, they must have been issued in their favour an order for delivery of possession under Section 10 (4) of the Colonization of Government Lands Act, 1912, which must have been noted and entered in Rapat Roznamcha Waqiati of the Patwari. Thereafter their possession must have been shown upon the lands in dispute from 1975 to 1995. The record of rights which has got presumption of correctness has totally disproved and smashed the case of the plaintiffs/respondents when it is examined minutely. From Jamabandi of the year 1972-73 to 1988-89, it has been also proved that the plaintiffs/respondents were never in possession of any piece of disputed land even. All these Jamabandies which expand from 1972-73 to 1988-89 for a period of more than 16 years do not contain any entry with regard to the allotment, possession and cultivation of the plaintiffs/respondents upon the lands in dispute. Therefore, it clearly proves that the plaintiffs were never allotted the lands . In dispute otherwise must have occupied and cultivated it. Due to absence of occupation and cultivation, plaintiff could not claim and be issued conveyance deed also. As the plaintiffs had started the business/deal of this gain of allotment in the year 1992, therefore, in Ex.D-13, Jamabandi of the year of 1988-89, for the first time, in column No.10, remarks column of Jamabandi, entries of their names were got entered in that Jamabandi, which was governing record of that time. It proves, that in the year 1992 to 1995, the plaintiffs had made effort to get these lands allotted and C.L.R. issued proprietary rights through collusiveness of the District Collector, Mr. Saeed-uz-Zafar, who is stated to have made such allotments in bulk to different persons.
9. Ex. D-16, Khasragirdawri, is also another proof which display that the lands in dispute up till 1992- 93 were "Ghair Mumkin Tibba" and that names of the alleged allottees were never entered up till that period. For the first time in Ex. D-16., Khasragirdawri,_ the names of the plaintiffs/respondents were entered in the crop of 26-101993.
10. Another important reason which disproves the case of the plaintiffs/respondents is that the respondents have failed to bring on record or prove that they had paid "Zar-e-Lagan" from 1975 to 1980 or thereafter up to 1995 regularly or continuously during these years. Not a single receipt/challan form showing the payment of such "Zar-eLagan", which was, to he paid by each year was paid or deposited with the treasury. This material fact has also shown that there was no allotment, no delivery of possession and no cultivation. For the first time the payment of amount was made in the year 1995 (Ex. P-2 to Ex. P-5) when the plaintiffs had got the order from the above mentioned Deputy Commissioner, for grant of rights of proprietorship.
11. It has further been noted from Ex.D-5, the list of voters that the plaintiffs were residing in Chak No.272/HR and not in Chak No. 18417R. They had, therefore, got ownership of these disputed lands, upon the fabricated version and documents. All the documents for allotment and proprietary rights were got prepared and issued in their favour, in the year 1995, from the Deputy Commissioner/District Collector, who was not empowered for making allotment even on the basis of notification dated 3-9-1975. The conditions of possession, cultivation were even not being fulfilled, according to the revenue record. Therefore, the order of learned Member, Board of Revenue, on 13-5-1999, was validly passed by the aforesaid learned Member Board of Revenue. In the facts and circumstance of the case.
12, The grievance of the plaintiffs that they were never issued any notice by learned Member, Board of Revenue has not been proved on the record by the plaintiffs/respondents. Learned Member, Board of Revenue in Para No.2, of the impugned order dated 13-5-1999, has clearly stated that in spite of best efforts and of Mushtari Munadi, the allottees had not appeared and were, therefore, proceeded against ex-parte. The plaintiffs have not brought any documentary evidence on the record to disprove this observation made in the impugned order. As the order has been passed by a highest authority of revenue hierarchy, so it is to be believed correct unless rebutted by the plaintiffs. Therefore, the complaint of providing no opportunity of hearing loses its importance:
13. In the present suit even, the plaintiffs have fully been granted opportunity to bring out and prove their case on the record and to make defence with regard to their alleged allotment, which they could put up before the learned Member, Board of Revenue, and have got full opportunity to prove the genuineness of their case, before the learned Civil Court, therefore, complaint of non hearing and in consequence the prejudice cannot be raised. If the allotment of the lands in favour of the plaintiff was to be found genuine, they were to be considered entitled to the opportunity of hearing- and notice, and I would have declared the cancellation illegal by setting aside' the order of learned MBR, but when upon merit the case of the plaintiff's to have proved to be based upon an in-genuine forged allotment; and the proof of fraud and.. Fabrication of documents with regard of the alleged allotment and conferment of proprietorship is clear, in such case, it has led me to set aside the impugned concurrent judgments of the, learned Courts below. Because in my view, persons who have obtained allotments on the basis of fraud, forgery any fabrication are not entitled to be shown with any indulgence. They cannot be granted relief to perpetuate fraud and set a bad example in the books of justice. In the above noted circumstances, plaintiffs do not deserve any more right of notice or opportunity of hearing, particularly after the case having been fought in the Civil Court with full opportunities to prove the genuineness of their alleged allotment. So. I accept this revision petition, set aside the concurrent judgments and decrees of both the learned Courts below, by upholding the order dated 13-5-1999 of the learned Member, Board of Revenue, and dismiss the suit of the plaintiffs in toto, with no order as to costs.
Civil Revision .