' MUHAMMAD AKHTAR SHABBIR, J.---Facts giving rise to the present writ petition are to the effect that the plaintiff/petitioner herein Dr. Ahmad Ali Jafri had filed a suit for specific performance of contract with regard to the property measuring 1-Kanal situated in Khata Nos.324, 323 of Mauza Ahmadpur Sial, Tehsil Admadpur Sial, District Jhang against defendant/respondent No,1 herein on the basis of agreement to sell, dated 22-8-1997. The suit was contested by defendant/ respondent No,1, who tiled her written statement. Along with the suit the plaintiff/petitioner filed an application for temporary injunction, which was dismissed by the trial Court. The appeal filed by the petitioner also met the same fate.
2. After declining the temporary injunction in favor of the petitioner, respondent No,1 approached the Tehsildar/Revenue officer respondent No,6 for issuance of warrant of possession of the property in dispute on the ground that the petitioner has illegally occupied the same while she has not delivered the possession to him. On receipt of the application the Tehsildar called for the report from the Revenue Patwari and issued warrant of possession of the property measuring 1-Kanal against the petitioner on 8-9-2006 and under this direction the Revenue officer handed over the possession to respondent No,1. This exercise of jurisdiction by respondent No,6 has been assailed by the writ petitioner through the instant writ petition.
3. Learned counsel for the petitioner contends that respondent No,6 had no authority/power for issuance of warrant of possession with regard to the property owned by a private party. Further contended that the petitioner was not encroacher upon the State land. The petitioner has occupied the land under the agreement to sell executed between him and respondent No,1.
4. I have heard the learned counsel for the parties and perused the record.
5. In response to the notice, respondent No,6 appeared in person and when asked by this Court to refer any law under which he exercised the jurisdiction of issuance of warrant of possession, could not respond. Learned counsel for respondent No,1 was also unable to support the act of respondent No,6 by any provision of law.
6. The Tehsildar is a Revenue officer appointed by the Government under section 6 of the West Pakistan Land Revenue Act for purpose of land revenue administration. Section 7 of the said Act has provided the classes of Revenue officers, which are as follows:--
(i) Board of Revenue,
(ii) Executive District Officer (Revenue),
(iii) District Officer Revenue,
(iv) Assistant Collector of the first grade,
(v) Assistant Collector of the second grade.
7. The Tehsildar is the chief officer entrusted with the local revenue administration of a Tehsil called as the Tehsildar, who shall exercise such powers and discharge such duties of an Assistant Collector Ist Grade as may be expressly conferred and imposed on him under this Act. Except the powers conferred on a revenue officer under the Land Revenue Act, the Board of Revenue, Punjab, may by Notification, determine the functions to be performed by a revenue officer by any class of revenue officers.
8. Section 175 of the West Pakistan Land Revenue Act has empowered the revenue officer to remove the encroacher. For ready reference the provisions of this section are reproduced as under:-- ' Section 175. Prevention of encroachment upon common lands.--
(1) Where land which has been reserved for the common purposes of the persons residing in the estate in which such land is situated has been encroached upon by any person, and the land has been shown in the last three periodical records made before such encroachment as so reserved, a Revenue Officer may, on the application of a land owner in the estate, and after giving an opportunity to the person alleged to have encroached upon it to appear before him and show cause against the proposed action."
(a) eject from the land the person who has encroached thereupon;
(b) by order proclaimed in the manner provided in section 26, forbid repetition of the encroachment.
9. The property/land owned by respondent No,1 occupied by thepetitioner was not a land reserved for the common purposes, therefore, the ejectment order by respondent No,6 against 'the petitioner is not covered under the said provisions. The exercise of power by the Revenue officer/respondent No,6 issuing warrant of possession against the petitioner to evict him from the said land is illegal and the illegal act of a public functionary cannot be protected by the Courts.
10. In view of the above discussion, this writ petition is accepted and the action of respondent No,6 Tehsildar of issuing warrant of possession of the property in dispute against the petitioner is declared illegal, without lawful authority, without jurisdiction and quashed.
11. While implementing the warrant of possession by the revenue staff the petitioner was joined in the proceedings. From the perusal of the record it reveals that the petitioner accepted the proceedings and handed over the possession to respondent No,1 and in the presence of the revenue staff as well as the witnesses the petitioner signed the same. Signatures of the petitioner are very much reflected on the record. It means that the petitioner expressly and impliedly consented to the delivery of possession of the property in dispute to respondent No,1, therefore, the relief of restoration of possession of the said property to the petitioner is declined. He has filed a suit for specific performance of contract and if he succeeds in getting the decree, his grievance will be redressed in due process of law.