' JAWWAD S. KHAWAJA, J.---The petitioner/plaintiff impugns the concurrent decree of the learned trial Court dated 26-9-2001 and of the learned appellate Court dated 26-9-2002, whereby a declaratory suit filed by him has been dismissed.
2. The facts of this case are straightforward. The petitioner/plaintiff was admittedly allottee/lessee of a lot measuring -111Kanals, 5 Marlas under the Grow More Food Scheme of the Government. He applied for conferment of proprietary rights on the basis of notifications of the Government. His application was rejected by the Collector vide order (Exh.P.3) dated 10-12-1985. An appeal filed by the petitioner was dismissed by the Commissioner vide order (Exh.P.4) dated 2-6-1986. Likewise a revision petition filed by the petitioner before the Board of Revenue was dismissed vide order (Exh.P.5) dated 24-3-1994. It appears from the order of the revenue forums that the application for proprietary rights was dismissed for the reason that the allotment in favour of the petitioner had been cancelled on account of his failure to fulfil the conditions of the grant.
3. Based on the pleadings of the parties, the learned trial Courtframed as many as four issues, including that of relief. However, Issue No,3 is dispositive of this case. Before me arguments were also confined to this which was framed in the following terms.
"Whether the plaintiff is entitled to get the proprietary rights from the defendants? If so, on what terms and conditions? OPP;"
4. The case of the petitioner is that since the date of allotment andto-date he is in possession of the suit-land under the lease and is cultivating the same without any let or hindrance from the respondents. According to the petitioner, no notice was ever issued to him prior to the alleged cancellation of his lease. The learned Law Officer, however, stated that the cancellation of lease was based on reports submitted by the concerned revenue functionaries and, therefore, was validly made.
5. I note that the order of the Collector (Exh.P.3) and that of theCommissioner (Exh.P.4) are based on the premise that the lease in favour of the petitioner stood cancelled and, therefore, he was not entitled to conferment of proprietary rights. There is also mention in the order of the Collector (Exh.P.3) that the suit-land was subsequently leased to one Abdul Rehman and that possession remained with the petitioner under some order passed by the High Court. There is, however, nothing on record to show that there was any previous litigation relating to the suit-land. Here I may add that this litigation commenced in 1989, while the order of the Collector (Exh.P.3) was passed in 1985. In order to show that the petitioner retained possession of the land under some Court order and not pursuant to the allotment in his favour, it was incumbent upon the respondents, firstly, to produce the order of cancellation of lease and, secondly, to adduce in evidence the record of the alleged previous litigation. This has not been done.
6. In order to ensure that the respondents are not prejudiced intheir defence on account of their failure to produce the relevant recordand also to satisfy myself as to the genuineness of the petitioner's case the learned Law Officer was directed to ensure that the record of the revenue department is produced in Court. This has been done today. The order dated 27-6-1961 whereby the Collector purportedly resumed the land, is not available on the record of the department. There is, however, a noting on the record that the disputed lot was resumed on account of the petitioner's failure to fulfil the conditions of lease. The learned Law Officer was asked to state if the record showed the issuance/service of any notice on the petitioner giving him an opportunity of showing cause against the resumption of the suit-land. He acknowledged that there was no such notice on record. This itself is sufficient to show that the resumption of land, if there was one, was not in accordance with law.
7. At this stage, I must add that the allotment _in favour of the petitioner is not in dispute and nor do the respondents deny the issuance of the notification entitling lessees, such as the petitioner, to apply, for and acquire proprietary rights in the leased land. In these circumstances, the onus in respect of Issue No,3 shifted on to the respondents and it was for them to show that the petitioner was not entitled to the grant of the proprietary rights. This onus could easily have been discharged by the respondents by producing the alleged order dated 27:6-1961 whereby the lease in favour of the petitioner was cancelled. As rioted above, not only was the order of 27-6-1961 not adduced in evidence, the same is also not available on the record of the respondents produced in Court today.
Furthermore, the conditions precedent to resumption of the leased land such as issuance of a notice under section 24 of the Colonization of Government Lands (Punjab) Act, have not been proved on record. Even today, as already noted, the record does not show that such preconditions had been fulfilled by the respondents.
8. I also need to note that the basic order against the petitioner is the one dated 10-12-1985 (Exh.P.3) passed by the District Collector. It is this order which has been upheld by the higher revenue forums. The order of the Board of Revenue (Exh.P.5) was, in fact, passed during the pendency of this litigation. The order of the Collector proceeds simply on the basis of a report dated 22-4-1985 submitted to him by the Assistant Commissioner, Samundri. This report was prepared by the Assistant Commissioner himself and there is no indication that the petitioner was associated or examined during the preparation of the report. In these circumstances, the report could, at best, have furnished a basis to the District Collector to issue notice to the petitioner under section 24 of the Colonization of Government Lands (Punjab) Act, 1912. The petitioner thereafter, would have had the right to assail the findings recorded in the report. This process was not followed, thus causing *prejudice to the petitioner.
9. Considering the circumstances gleaned from the record, it may well be that the report of the Assistant Commissioner, Samundri was, in turn, based on incorrect reporting by the field staff. The petitioner, however, was not afforded any opportunity to disprove the report of the revenue functionaries and to establish that he was not in breach of any condition of lease. Furthermore, even if it is assumed that the petitioner had not fulfilled the terms of lease, resumption of the land was not an automatic consequence of such lapse. The petitioner should have been given time to rectify any breach of conditions under section 24 ibid.
10. The learned Law Officer argued that the petitioner was aware of the order dated 27-6-1961. This assertion was made on the basis that in the revenue record Khasra gardawaris from Rabi 1965 to Rabi 1969 were in the name of the Province and thereafter for a period the land was shown to be allotted to one Muhammad Siddique son of Umar Din. The learned Law Officer, however, acknowledged that even during this period the petitioner Waryam was shown in cultivating possession of the suit-land. Thereafter, from Rabi 1987 to Rabi 1991, the petitioner was again shown as being in cultivating possession although it was indicated in the Revenue Record that his possession was unauthorized. These entries in the Revenue Record does not, in any manner, prove that the petitioner was aware of the order dated 27-6-1961.
11. The above circumstances leave me in no doubt that the resumption of the suit-land was not in accordance with law. Unfortunately, both Courts below have not taken note of the above circumstances. The learned appellate Court has been unduly swayed by the fact that there is a chain of orders passed in the revenue Courts against the petitioner. These orders, however, proceed on the sole premise that the petitioner's application for conferment of proprietary rights is liable to be dismissed because the lease in his favour stood cancelled. For the reasons, which have been discussed above, this fundamental premise on which the orders of the revenue forums and the lower Courts have been based, is faulty because the resumption of land has not been proved.
Secondly, even if the land had been resumed, such resumption was unlawful, having been made without fulfilling the requirements of section 24 of the Colonization of Government Lands (Punjab)
Act.
12. In view of the foregoing discussion, I find that Issue No,3 stood proved. The petitioner is thus held entitled to the grant of proprietary rights on the usual terms applicable to such grants.