MUHAMMAD AMEER BHATTI, J. --- Through this civil revision, the petitioner has called in question the judgment of the learned first Appellate Court dated 24.04.2003, whereby appeal filed by the respondents against the judgment and decree dated 07.01.1999 (through which the suit of the petitioner was decreed), has been reversed and the suit of the petitioner was dismissed.
2. The claim of the 'petitioner as mentioned in the headnote of the plaint/suit for declaration is that the petitioner was entitled to grant of proprietary rights of land measuring 62-K and 08-M in Chak No. 455, Tehsil & District Jhang and that the order dated 19.05.1979 of District Collector Jhang, cancelling the allotment of the petitioner as well as order dated 02.07.1979 of Additional Commissioner (Revenue) and order dated 01.01.1980 of Member Board of Revenue were illegal, collusive and ineffective against his rights. Further declaration was claimed to the effect that order dated '15.10.1979 of Assistant Commissioner (Collector), Jhang and order dated 13.10.1980 of Collector, Jhang granting the proprietary rights of the land to the predecessor-in-interest of the respondents 3 (No. I to XIII) were illegal and inoperative qua the rights of the petitioner.
3. The suit was resisted on the ground that the petitioner had violated the terms and conditions of lease and had failed to abide by the same and in breach thereof, the allotment was rightly cancelled. Preliminary objections about the jurisdictions of. Civil Court and grant of proprietary rights were also raised.
4. Out of the divergent pleadings of the parties, 15-issues were framed. The learned Senior Civil Judge after recording the evidence of both the parties according to their onus on issues dismissed the suit of the petitioner vide judgment dated 20.01.1993 and the appeal filed by the petitioner also met with the same fate on 12.07.1994. However, in C.R. No. 3343/1994, this Court while accepting the said C.R. Remanded the case back to the learned Trial Court after making some observations with the direction to not only provide opportunity to lead evidence to both the parties but also consider the conditions of Ejected Tenant Scheme issued on 17.12.1963, apart from the observations made by this Court in the said judgment. In the second round, the parties were provided opportunity to lead their evidence and also considering all the facts and circumstances and relevant law as well as the observations/guidelines given in the said judgment, the learned Trial Court decreed the suit vide judgment dated 07.01.1999. The appeal preferred by the respondent No. 3 was allowed by the learned first Appellate Court vide judgment dated 24.04.2003. Consequently, the suit of the present petitioner was dismissed, hence this revision petition.
5. Learned counsel for the petitioner contends that the judgment of the learned first Appellate Court is against the spirit of the observations made by this Court in the earlier round of litigation while deciding the C.R.No. 3343/1994. Since the judgment of this Court had attained the finality as none of the parties has challenged this judgment, hence whatever observations were made in this judgment, were binding on the Courts below and the learned first Appellate Court was under legal obligation to consider those observations and decide the case strictly in accordance with law. As such, the judgment of the learned first Appellate Court is not sustainable.
6. Learned counsel for the respondents in support of the judgment of learned first Appellate Court contends that since the petitioner had violated the terms and conditions of the allotment, the revenue hierarchy had rightly cancelled the land from the name of the petitioner. The petitioner had already handed over the possession of the land in dispute to the predecessor-in-interest of the respondents and this fact has been ignored by the learned Trial Court but the learned first Appellate Court while considering this aspect of the case decided the same in favour of the respondents which is within four corners of law. Further contends that learned first Appellate Court had rightly interpreted the import of. Section 24 of the Colonization of Government Land Act, 1912 hence no illegality or irregularity has been committed by the learned first Appellate Court.
7. I have heard the learned counsel for the parties and perused the record as well as the judgment of this Court passed in earlier round of litigation.
8. It will be appropriate that some extracts of that judgment shall be re-produced for the ready reference:- "As observed supra, the two Courts below, have disposed of the suit and the appeal, without attending to the real questions made without considering the conditions of Ejected Tenants Scheme issued on 17.12.1963 for the allotment of proprietary rights and by excluding from consideration, the material documentary evidence on record, therefore, the case has to be sent back for its fresh decision, in accordance with law, and on its own merits, in the light of the observations, made herein above. The case is accordingly remanded to the learned Civil Judge, who shall, allow the petitioner, to summon the original registers of Jamabandi and Khas'ra Girdawris. The respondents should also be allowed an opportunity to lead evidence in rebuttal if so desire. After recording additional evidence, the suit shall be decided afresh, on its own merits by attending to the question noted supra, by consideration the entire documentary as well as oral evidence, and the conditions of Ejected Tenants Scheme issued on 17.12.1963".
9. From the record, it transpires that the petitioner was allotted land under Maintenance Scheme in 1948 which , was converted into Ejected Tenant Scheme in 1952 and continued by Schemes of 1955, 1956 & 1958. The Board of Revenue, issued notification for the grant of proprietary rights to tenants under Ejected Tenant Scheme on 16.12.1963 on which date, the petitioner claims to have fulfilled conditions for the grant of proprietary rights. It is also found from the Jamabandi and Khasra Girdawari available on the record (at pages 122 to 131) that the petitioner has been under self- cultivation of land from Rabi 1949 to Rabi 1975 for a period of 25 years against the condition of five years and there was no option for the revenue authorities to decide the matter merely for the period of 1975 to 1978, when he was found absentee from the possession and the predecessor-in- interest of respondent No. 3 was found in possession. Since the petitioner was in possession of the land in dispute under the Ejected Tenant Scheme, requiring condition of five years possession as per notification of the competent authority dated 17.12.1963 for grant of proprietary rights. Though the petitioner has been found in possession from 1949 to 1975, he was entitled to grant of proprietary rights but the respondents/revenue authorities have failed to perform their duties and on the basis of a single report of the Commission, which is not contrary to the stand of the present petitioner. To the effect that he remained possession till 1975. However, on the basis of his dispossession from 1975 to 1978 not only the allotment of the petitioner was cancelled but same land was allotted to predecessor-in-interest of respondent No. 3 without any lawful authority. Even otherwise, it has been rightly observed by the learned Trial Court that Section 24 of the Colonization of Government Lands Act did not provide any power to the Collector to resume the land from allottee straightaway without providing opportunity of rectification of any violation of the condition.
Since the petitioner has already fulfilled all the conditions and instead of performing his duty for grant of proprietary rights, keeping in view the possession of the petitioner from 1949 to 1975 under Ejected Tenant Scheme, the petitioner has been deprived of his legitimate right due to the negligence on the part of the revenue hierarchy. If the action has been taken before 1974 when the petitioner was shown in cultivating possession in the entire evidence produced by the parties, the position would have been different. Even otherwise, the petitioner had become eligible in the year 1963 and should have been granted the proprietary right by that time. Slackness on the part of the respondents has been suppressed by depriving the petitioner of his legitimate right by cancelling the allotment from his name. Although Section 24 of Colonization of Government Lands Act, 1912 under proviso, mandates the Collector issue the notice to the allottee for the rectification of the violation particularizing to the effect before passing any order of resumption. Thus, the Collector ought not have straightaway resumed the land which was beyond his jurisdiction and this order has vindicated the mala fide and collusion of the revenue authorities with the predecessor- ininterest of the respondents and this aspect has not been appreciated in its true perspective by the learned first Appellate Court and tried to overlook the provisions of law and mis-interpreted and mis-construed the provisions of law as it is rightly appreciated by the learned Trial Court. The observation of the learned first Appellate Court that Collector has issued notice according to Section 24 of the Colonization of Government Lands Act, 1912, as the petitioner was not found in possession due to his illness but the question which has already observed. The Collector while exercising the power provided under Section 24 of the Colonization of Government Lands Act, 1912 could not straightaway resume the land unless he provided the opportunity of rectification of the illegality and violation of conditions committed by the allottee. Even otherwise, this Court has already observed in the earlier round of litigation about the possession of the present petitioner from 1949 to 1975 and on the basis of this possession, this Court has observed that the petitioner was entitled to the proprietary rights according to the Ejected Tenant Scheme, as back as in the year 1963 when the notification for the grant of proprietary rights was directed to be issued to the allottees/occupants who had fulfilled five years condition. So, I come to this irresistible conclusion that illegality had been committed by the revenue authorities while cancelling the allotment from the name of the petitioner and grant of proprietary rights to the respondent, who according to their own version was found to be in possession from 1975 to 1978 with a further observation that the act of the respondents seems to be mala fide and collusive.
10. In view of the foregoing discussion, the judgment passed by the learned first Appellate Court is exceptionable and set aside accordingly while the judgment of the learned Trial Court is upheld and maintained.
Civil revision .