' The declaration submitted by Asad All Shah son of Riaz Hussain Shah under Land Reforms Act, 1977 (Act II of 1977) was filed by the D. L. C. Jhang vide his order dated 20-1-1979 on the ground that the holding of the declarant was found to be 217.46 acres equivalent to 7597.251 P. I. Us. Which was less than the permissible limit of 8000 P. I. Us. The record of the case was called for scrutiny under section 27 of the Act in order to judge the correctness, legality and propriety of the D. L. C's order. As a result of this examination notices under section 27 were issued to the declarant on 24-10-1982.
History of this case briefly is that the declarant had filed his declaration under Act H of 1977 and declared his holding as on 4-1-1977 as 217-5-6 acres equivalent to 6763 P. I. Us. The D. L. C. Jhang vide his order 25-10-1977 determined his holding as 218-2 acres equivalent to 10460 PHA and ordered resumption of an area equivalent to 2460 PIUs which was in excess of the limits on individual holding prescribed in the Act. The declarant filed an appeal against this order before the Land Commissioner, Sargodha Division on the ground that his holding should have been determined according to soil classification of the land which was in his 'Hissa dari qabza' as recorded in the land revenue record instead of being determined on the basis of his share in the joint holding. The Land Commissioner vide his order dated 5-12-1977 dismissed the appeal and upheld the order of the D. L. C. The declarant then filed a revision petition before the ACLC Punjab who accepted the revision petition, set aside the D.L.C. Jhang's order and remanded the case to him with the direction that the declarant's holding should be determined afresh on the basis of the area in his 'hissa dari qabza' according to the 'khangi taqseem' which was originally incorporated in the `Jamabandi' of 1972 and subsequently brought over to the `Jamabandi' of 1976,
2. Counsel for the declarant Asad All Shah was heard and the land t revenue record comprising of the Jamabandis of the village Hast Khewa, Tehsil Chiniot District Jhang for the years 1972 and 1976 was examined. The declarant is clearly shown as joint owner alongwith nine other co-sharers in the ownership column of the two Jamabandis. In the possession column however, land which was actually cultivated by the co-sharers in accordance with the `khangi taqseem' is indicated. The counsel for the declarant contended that the declarant acquired ownership of the land in the village Hast Khewa, Tehsil Chiniot in 1969 through mutation No,. 82 as a result of which he became a co-sharer in Khata No,. 2 in the village. This Khata comprised of agricultural land measuring 6345 Kanals which was jointly owned by 10 persons and since each of the joint-holders wanted to have in his exclusive possession land according to his share they carried out a `khangi taqseem' in 1972 which was entered in the lamanbande for 1972-73 according to which each of the joint holders was shown either in cultivating possession or in possession through- a tenant according to his share in the Khata. The counsel further argued that these entries in the `Jamabandis' were carried forward in the same manner in the `Jamabande for the year 1976-77 and that this position has now become permanent and settled since the `khangi taqseem' has not been challenged by any of the joint-holders of Khata No,. 2 up to date. The counsel argued that if now the `khangi taqseem' is not accepted this will affect the ownership titles of the other co-sharers which will amount to their being condemned unheard. He further argued that under section 52 of the West Pakistan Land Revenue Act, 1967 presumption of truth is attachedto the entries in the Record of Rights and the annual records and he cited the, case reported in PLD 1973 Lah. 50 in support of this argument. The council also referred to the Punjab Land Commission No,tification No,. DSH-965-72/3745-LC (II) dated 28th September 1972 which laid down a procedure for resumption of excess land above the ceiling prescribed under paragraph 8 of MLR-115 in case of joint holdings not already partitioned as a result of 4Khangi Taqseem' and argued that this showed that the `khangi taqseem' was recognised by the Punjab Land Commission. He finally cited the case reported in 1979 SCMR 625 wherein it was held that under section 52 of the West Pakistan Land Revenue Act, 1967 entries in the qamabande carried statutory presumption of truth.
3. I have examined the record of the case, specially the order dated 28-3-1978 of the Additional Chief Land Commissioner, Punjab, and the land revenue record and have taken into consideration all the points made by the counsel for the declarant. The land revenue record and the `Jamabandis' for the years 1972-73 and 1976-77 clearly show the land in question as jointly owned by the declarant and 9 other co-sharers according to entries in the ownership column. This fact is also admitted by the counsel of the declarant himself who, however, contends that all the co- sharers had carried out a `khangi taqseem' in 1972 and had then acquired `hissadari qabza' of their respective shares. For purposes of the Land Reforms Act, 1977 individual holding of a person, whether in ownership or in possession, has to be determined in accordance with the entries in the land revenue record and the position according to the `Jamabandis' of 1972-73 and 1976-77 as stated earlier, clearly shows the land in question as being in the joint ownership of the declarant and 9 other co-sharers. All these co-sharers could have normally got their joint holding partitioned under Chapter XI of West Pakistan Land Revenue Act, 1967 provided such partition was not barred under par ragraph 24 of M. L. R. 115 and after such partition according to law their separate individual ownership would have been duly reflected in the land revenue record. The so-called 'Ichangi taqseem' carried out by them does not amount to a partition under the Land Revenue Act.
The reasons why they did not resort to a partition, under law could have been many including non- agreement of any one of the co-sharers with the terms of the proposed partition as well as the probable impartibility of the joint holding under para. 24 of M. L. R. 115, whatever be these reasons, the position of this land as on 4-1-1977 when the Land Reforms Act, 1977 came into force can be no other than that the land was jointly owned by all the co-sharers including the declarant. The argument relating to presumption of truth attaching to the entries in the Jamabandis under section 52 of the West Pakistan Land Revenue Act, 1967 is misconceived firstly because, as stated earlier, an examination of the Jamabandis of 1972-73 and 1976-77 clearly shows the land as being jointly owned by the declarant and the other co-sharers according to the entry in the ownership column ; and, secondly, because presumption of truth will attach only to such entries in the Record of Rights as are made in accordance with the law and not to others, so that even if separate ownership had in fact been recorded in the Jamaband is accordance with the so-called lhangi taqseem' as claimed by the declaran such an entry would not have been in accordance with law because the law clearly recognises partition only if it is effected under Chapter XI of the West Pakistan Land Revenue Act, 1967. Reference to the Punjab Land Commission Notification No,. DSH- 965-72/3745-LC (II) dated 28-9-1972 is equally of no avail. This notification was in fact superseded by the Punjab Land Commission Notification No,. LH-1-298/76/4047-LC dated 21st July, 1976 which simply prescribes a procedure for determining the area to be resumed from a declarant under the Land Reforms Act out of a joint holding, that is to say that such resumption cannot be made out of the declarant's other holdings solely owned by him either because he does not own any other land or because he wishes to surrender land for resumption out of the holding owned by him jointly with other co-sharers and not from a holding, if any, solely owned by him. This notification clearly says that the joint holding shall be regarded as one holding and its produce index units shall be calculated on the basis of classification of soil as entered in the revenue record for Kharif 1969-70 and Rabi 1969-70 and the share of the declarant determined in terms of PIUs. It makes no mention of determining the holding of the co-sharers declarant on the basis of area in his actual physical possession on the basis of some `khangi taqseem' which has been in force for 10 years will affect the rights of the other co-sharers without their being heard etc., there is no force in this argument as determination of the declarant's holding under the Land Reforms Act is expressly for purposes of the Act alone and does not affect any other rights and liabilities of the persons concerned. The determination of the holding of the declarant under this Act will, therefore, have no bearing on his rights and liabilities vis-a-vis other co-sharers in accordance with whatever arrangements such a `Ichangi taqseem' which they might have separately made.
4. For the reasons discussed in the preceding paragraphs the orders of the ACLC Punjab dated 28- 3-1978 and the D. L. C. Jhang dated 20-1-1979 are set aside as being of no legal effect. As a result, the order of the Land Commission, Sargodha dated 5-12-1977 is restored. Judgment in this case was reserved when it was last heard on 23-12-1982. This order may, therefore be conveyed to the declarant, Asad Ali Shah through D. L. C., Jhang.