' AMIN-UD-DIN KHAN, J.---Through this civil revision petitioners/Province of Punjab etc. Have challenged the judgment and decree dated 21-7-2005 passed by learned Additional District Judge, Sargodha whereby appeal filed by the petitioners was dismissed and the Judgment and decree dated 29-6-2004 whereby suit filed by the respondents-plaintiffs was decreed.
2. According to brief facts of the case respondents-plaintiffs on 21-1-1996 filed a suit for declaration that they be declared allottees of Ihata No, 23 Abadkari measuring 2 Kanals 4 Marlas situated in Chak No, 100 Shumali, Tehsil and District Sargodha on the basis of orders passed by the Officer Abadkari/Collector dated 7-7-1991 and order of Additional Commissioner (Revenue) Sargodha dated 20-9-1993. They have challenged the order of Member Board of Revenue dated 25-8-1994 whereby both the above said orders were set aside. Written statement was filed. Suit was contested. Issues were framed. Parties were invited to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. After completion of trial vide judgment and decree dated 29-6-2004 learned trial court decreed the suit. Appeal was preferred by the petitioners, same was dismissed vide judgment and decree dated 21-7-2005. Hence, this civil revision.
3. Learned Additional Advocate General on behalf of the petitioners argues that order passed by the Member Board of Revenue is in accordance with law keeping in view all the facts and rules under the Colonization of Government Lands (Punjab) Act (V of 1912). States that learned trial court has ignored the evidence produced by the petitioners-defendants and absolutely has not discussed the same whereas the documentary evidence in the shape of Exh. D.1 to Exh.D.5 Jamabandies for the year 1926-1927 have been produced and originally the land was admittedly allotted to the Canal Department for construction of Patwar Khana in the year 1922 and all the Jamabandies which have been produced as Exh.D.1 to Exh.D.5 clearly show that the land in dispute Ihata No, 23 which consists upon 2 Kanals 4 Marlas is recorded as Patwar Khana in the possession of Canal Department. This un-rebutted evidence has been ignored by the learned trial court, therefore, reached to a wrong conclusion. Further that even the order of the Board of Revenue, which was under challenge before the learned trial court has also not been looked into. In the order the relevant provisions of law have been referred and on the basis of the same, the order has been passed which is Exh.P.1 produced by the plaintiffs-respondents themselves. When it was noted that the order dated 7-7-1991 was passed by the Colony Assistant/Collector and further that no notice under section 24 of the Colonization of Government Lands (Punjab) Act (V of 1912) was issued to the Canal Department, the order was nullity in the eye of law. This being so the plaintiffs failed to rebut this fact noted by the Member Board of Revenue in his order and further that the learned first appellate court has wrongly held that appeal was filed after the prescribed period of limitation and further the learned appellate court has also not discussed the evidence and just validated the findings recorded by the learned trial court which are against the record.
4. On the other hand, learned counsel representing respondents states that with regard to the condonation of delay there is no distinction with the ordinary person and the Government and further that the order of Colony Assistant dated 7-7-1991 is in accordance with law. Admits that no notice has been given under section 24 of the Colonization of Government Lands (Punjab) Act (V of 1912) to the petitioners-defendants department. When questioned to the learned counsel for the respondents that whether the Colony Assistant/Collector was competent to convert the nature of the land for construction of Patwar Khana to the residential Ihata, he relies upon "Naseer Ahmad v.
Member, Board of Revenue and others" (1985 M LD 1277). Further refers the statement of DW-1 Imam Bakhsh the only witness appeared on behalf of the defendants. States that the orders passed by both the courts below are in accordance with law and further that the defendants failed to prove that they have taken the possession in accordance with Section 10(4) of the Colonization of Government Lands (Punjab) Act (V of 1912), therefore, prays for dismissal of the revision petition.
5. I have heard learned counsel for the parties and gone through the entire evidence and the findings recorded by both the courts below with the able assistance of learned counsel for the parties.
6. There are two questions involved in this litigation; first is whether the Colony Assistant/Collector was competent to cancel the land which was allotted to the Canal Department for construction of Patwar Khana in the year 1922 and further whether he was competent to change the nature of land and convert it into residential Ihata and further before cancellation. The legal requirements have been complied with, the answer of both the questions has been given in the order passed by Member Board of Revenue dated 25-8-1994 under challenge in the suit. In para 8, he held as under:-- "As District Collector vide his order dated 19-8-1989 had clearly held that the impugned site having stood reserved for Canal Department was not available for allotment to the present respondents and as the, said order had not been challenged by them, CA/Collector was certainly not competent to have subsequently allotted the same site to the respondents. CA/Collector's order dated 7-7-1991 and Additional Commissioner's order dated 20-9-1993 are not sustainable and are set aside. Site No, 23 measuring 2 Kanals and 4 Marlas of Chak No, 100/NB, Tehsil and District Sargodha shall continue to stand reserved for Canal Patwarkhana."
' In this view of the matter, when the order of District Collector dated 19-8-1989 was in the field and it was never challenged before any higher forum, the Colony Assistant/Collector was not competent to pass the order dated 7-7-1991 and same is the position of order of Additional Commission dated 20-9-1993. It is an admitted position that the land reserved for a specific purpose which was validated by the District Collector, subsequently the Colony Assistant/Collector has no authority to change the purpose of that land and convert the land which was reserved for construction of Patwar Khana for the Canal Department and to convert it into a residential Ihata.
7. So far as objection of section 10(4) of the Colonization of Government Lands (Punjab) Act (V of 1912) raised by the learned counsel for the respondents is concerned, the Government of Punjab has never denied the allotment of the land to the Canal Department and continuous possession which has been recorded in Exh.D.1 to Exh.D.5 the Jamabandies, which start from the year 1926-1927 of the Canal Department as Ihata No, 23 for construction of Patwar Khana. It is well settled law that the longstanding entries in the revenue record cannot be changed except in accordance with law.
The plaintiffs-respondents could not produce any record to show that through any valid order the entry in the name of Canal Department was changed. The orders passed by the Colony Assistant/Collector as well as Additional Commissioner were against the record and also without jurisdiction, therefore, the same were set aside by the Member Board of Revenue through the order dated 25-8-1994. When the District Collector vide his order dated 19-8-1989 held that impugned site stood reserved for Canal Department, the revenue record also supports the same, in this eventuality the objection of section 10(4) of the Colonization of Government Lands (Punjab) Act (V of 1912) raised by the respondents is not only factually incorrect but respondents have no right to raise this objection, therefore, objection raised by the respondents under section 10(4) of the Colonization of Government Lands (Punjab) Act (V of 1912) is repelled.
8. In a suit for declaration the plaintiff is required to prove a case pleaded by him and he can get a decree with regard to a pre-existing right in his favour by proving his pleadings and his entitlement for the decree, through a declaratory decree a new right cannot be created. When the order of the Member Board of Revenue is on the basis of available revenue record and on the basis of existing law, same cannot be set aside without any justifiable reason. The reasons recorded by the learned trial court while setting aside the order impugned before it are not borne out from the record, specially he has ignored the documentary evidence produced by the defendants-petitioners as Exh.D.1 to Exh.D.5 and also ignored the law on the subject. When it is not denied by anyone that the land in dispute was allotted by the Government of Punjab to the Canal Department for construction of Patwar Khana in the year 1922 and the possession was given by the Government to the Canal Department for construction of the same, which is verified from the Jamabandies (Exh.D.1 to Exh.D.5) and entries of the Jamabandies carry the presumption of correctness, though the presumption is ever rebuttable but if the same is not rebutted, the presumption is used in favour of the person in whose favour the entries are available. In this regard when the entries of allotment and possession are available in favour of Canal Department with regard to the suit property from 1922 to onward and no valid entry substituting this entry has been produced or proved by the plaintiffs-respondents, therefore, the orders passed by the Colony Assistant/Collector as well as Additional Commissioner were against the record and were nullity in the eye of law, therefore, Member Board of Revenue vide his order dated 25-8-1994 has rightly set aside the same and the learned Civil Judge was having no evidence to set aside the order passed by the Member Board of Revenue. In this view of the matter, findings recorded by the learned trial court are not sustainable under the law.
9. So far as findings of the learned first appellate court are concerned, on merits he has just affirmed the findings of the learned trial court which are not sustainable. The finding that the appeal was filed after the prescribed period of limitation. The findings of the learned first appellate court are also wrong as it has been noted by the learned Additional District Judge that the judgment by the trial court was passed on 29-6-2004, certified copy was applied on 27-7-2004, same was delivered on 9-9-2004 and the appeal was filed on 11-9-2004. In this view of the matter, appeal seems to have been filed within the prescribed period of limitation. Learned first appellate court has not noted the date of preparation of the certified copies. It seems that note of the learned Additional District Judge that the appeal has been filed after the lapse of 21/2 months, is against the record. Noting by the learned Additional District Judge with regard to the date of decision and filing of application for issuance of certified copies and filing of appeal before the learned lower appellate court shows that appeal before it has been filed within the prescribed period of limitation. Even otherwise, if a certified copy is prepared after the proposed date of issue of certified copy given to an applicant under section 12(2) of the Limitation Act, 1908, the Copying Agency is bound under the law to issue notice to the party for collection of certified copies. It is no one's case that the copies were prepared earlier and intentionally same were received with a delay. In this view of the matter, when the dates as mentioned supra noted by the learned first appellate court are considered, the appeal was within the prescribed period of limitation.
10. In this view of the matter, the case-law referred by the learned counsel for the respondents is not applicable to the facts of this case and the findings recorded by both the courts below are against the record and they have set aside the order passed by the Member Board of Revenue, which is based upon evidence and record, therefore, this civil revision is accepted and the judgments and decrees passed by both the courts below are set aside, suit filed by the plaintiffs- respondents stand dismissed. No order as to costs.