' This revision petition under section 13 of the Consolidation of Holdings Ordinance, 1960 is directed against the orthr of the Additional Commissioner (Cons.), Sargodha, dated 27-9-1982 by which he accepted the revision petition of respondents Khalid Hussain etc. And set aside the consolidation scheme of revenue estate Hassu Balail of Shorkot Tehsil with the direction that the same be framed afresh strictly in accordance with the ownership of the parties as entered in last , Jamabandi.
2. Briefly, the consolidation operations in village Hassu Balail, Tehsil Shorkot, District Jhang were taken in hand in January, 1980 and the final scheme was confirmed by the Consolidation Officer, on 30-8-1981, under section 10(3) of the Consolidation of Holdings Ordinance, 1960. While making the wandas of the parties the Consolidation0fficer partitioned the snamlat land measuring 3,019 Kanals, 12 Marlas attached to the nine wells namely, (1) Bullarwala, (2) and (3) Hardo Dhoriwala, (4)
Makhdoom Jalalwala, (5) Uhaziwala, (6) Ahmadewala, (7) Hanjranwala, (8) Jamalianwala, (9)
Bakainwala and distributed the same proportionately among all the share-Holders on the basis of propriety area owned by them in the village as stipulated in the Shart Wajin-ul-Arz of the year 1924-25. The respondents took an exception to the partition of the snamlat land so made and assailed the confirmation of the scheme by a direct revision petition before the Additional Commissioner (Cons.), Sargodha. In the said revision petition the respondents took a number of objections which revolved mostly around this pivotal point that the land attached to the aforementioned wells at the time of settlement of 1880, was shown in the Misl Haqiat of that year as the sole ownersnip of Abadkaran and not as Sharnlat Deh. Further, tnat since these wells and the land attached thereto had continued to be recorded in all the successive jamabandis, including the last jamabandi for the year 1974-75 from where the consolidation was to proceed, as the sole ownership of the persons occupying them, therefore, the Consolidation Officer had no right to treat such lands as Shamlat Deli and distribute them among all the share-holders, thereby reducing the entitlement of the respondents on the plea that their title to such lands was subject to the conditions laid down in the Wajib-u/-Arz of the year 1924-25, which had not been specifically mentioned in any of the succeeding jamabandis. They also asserted that on the strength of their exclusive ownership and title as recorded in the last as well as in the preceding jamabandis they had not only been alienating some of these lands by sale, mortgage, exchange or otherwise but had also been surrendering a big chunk of them, being in excess of permissible limit, under various Land Reforms Regulations, without any objection being lever raised or complaint made in this behalf by the petitioners. The Additional Commissioner (Cons.) after some proclamation caused to be hastily made in the village, proceeded to hear the one-sided arguments of the respondents and passed the impugned order dated 27-9-1982 declaring the land covered by the aforementioned wells to be the sole ownership of the persons occupying such wells and accordingly directed the subordinate consolidation staff to determine the entitlement and the wandas of the parties afresh keeping in view the entries with regard to ownership as existed in the last jamabandi.'
3. Being aggrieved, the petitioners have come in revision before this Court contending that the approach of the learned 'Additional Commissioner (Cons.) fat) the vital question of interpreting the entries of Wajib-ulArzes and the Mils Haqiat of 1880, 1903-4 and 1924-25 which determined the status of the land covered by these wells, was not proper and, therefore, the order passed by him was illegal and liable to be set aside.
4. I have heard the learned counsels for the parties at a great length and have also perused with care the entries of MisIs Haqiat and Wajibul-Arzes of the years 1880, 1903-4, 1924-25 as well as the entries of the last jamabandi for the year 1974-75.
5. Before coming to the real noint at issue it will not be out of place to trace the history of the land in question as given in the record of various settlements carried out under the British rule. It was during the stirring times of the 18th Century when the dynasty of the Mughals tottered and fell and the local clan of Sials, under their chieftain Walidad Khan, gained temporary independence in the territories of Jhang, that the forefathers of the present respondents had migrated from Multan and settled over this part of the country. They occupied a part of the waste land of village Hassu Balail and brought it under cultivation by sinking wells, while the areas outside the wells remained as jungle and used as common village land for the purposes of grazing etc. When the first regular settlement was carried out by the British in 1856, the boundaries of the village were regularly demarcated and the entire land whether it was attached to the wells or lay outside the boundaries of the wells were recorded as shamlat dell. Subsequently when the revised regular settlement was undertaken in the year 1879-80 the fore-fathers of the present respondents came up with a request before the then Settlement Officer that as they had sunk wells in the shamlat land and made it cultivable by putting in lot of labour and incurring huge expenses, therefore, an appropriate order be passed to protect their rights in this land and safeguard their interests against any future demand to be made by any other share-holders for its partition as a shamlat land. As the record goes the Settlement Officer, vide his order, dated 22-3-1879, acceded to the request of the predecessors-in-interest of the present respondents with the consent of the other share-holders of the shamlat and accordingly granted them the right of ownership in the said land subject to the following condition as laid down in the Wajib-ul-Arz of the year 1880: {{URDU TEXT}}
6. This conditional grant was not only recorded in the Wajib-ul-Arz of the year 1880 but also in the Misl Hagiat of that year, wherever any such well appeared in the said Misl Hagiut. In the column against well No, 1 (i,e, Bullarwala) the order of the Settlement Officer, as recorded in urdu is that- {{URDU TEXT}} and after this wherever any well was recorded in the Misl Haqiat the entry, which is shown against well No, 1, was reproduced. During the next two revised regular settlements, which were conducted respectively in the years 1903-4 and 1924-25, these entries were kept intact and reproduced both in the Wajib-ul-Atzes as well as in Misis Haqiat of those years.
7. Here it may also be noticed that in the settlement of the year 1880 a specific land was kept within the range of these wells but the landowners occupying such land, being more resourceful, did not stop there and continued appropriating banjar land in the vicinage with the result that at the time of the present consolidation operations they held much too more of shamlat land in their possession than what they had actually been allowed to possess at the time of 1880 settlement.
8. The purport of the urdu entry appearing in all the three successive Wajib-ul-Arzes is that "the ownership of the said wells, as decided in the order, dated 22-3-1979 passed by the Settlement Officer in a summary manner, is created with the condition that the remaining shamlat land will be partitioned in accordance with if any of the share-holders so wished to get it partitioned. Further, that if the possession of any share-holder is found in excess of his due proportionate share, he shall retain the same in his possession and the deficiency occurring due to the excess land so held by him shall be made good from his entitlement in the banjar land. Henceforth no new well shall be sunk and no share-holder shall do the same but if any share-holder sinks a new well with the consent of the other share-holders, then in that case he shall enjoy the usufruct of that land till partition. Again, whenever the remaining area of the shamlat (apart from the land of these wells is partitioned, then in that event an equivalent area to the extent of the land covered by these wells shall be deducted from the share of the Abadkaran".
9. From the above it would clearly appear that the right of ownership created in the predecessors- in-interest of the respondents was not absolute and was to be held by them subject to the condition that at the time of partition the land under their possession would be calculated as a part of the main shamlat and if it was found in excess of their due proportionate share in the shamlat, an equivalent area from their share out of the remaining shamlat of the village would be deducted. In other words this ownership was only in the sense that no other share-holder would demand the partition of the land covered by the wells because instead a proportionate share equivalent to this land would be relinquished by the occupiers from their share of the main shamlat in the village. But in the present case as the land occupied was much too more than what the predecessors-in-interest of the respondents had actually possessed at the time of 1880 settlement, which was protected from partition, therefore, any land held by them in excess of their conditional ownership created in the year 1880 could be competently taken away and distributed as shamlat deh in accordance with the entry of Wajib-ul-Arz of the settlement of that year, which was reiterated in the Wajib-ul-Arzes of the successive settlements of 1903-4 and 1924-25.
10. There seems no substance in the contention that as the land in dispute has been continuously recorded in all the jamabandis prepared after the settlement of 1924-25 as the sole ownership of the respondents and their predecessors-in-interest, therefore, the same could not be taken away from them and distributed as shamlat according to the entries of Wajib-ul-Arzes, which had not been recorded in these jamabandis. It will be observed that the rights of the parties are always to be controlled by the entries of Wajib-ul-Arz prepared at the last settlement. The Wajib-ul-Arz forms a part of the standing record prepared under section 39 of the Land Revenue Act, 1967 and its entries are not to be repeated in the amended version of such record, i,e, jamabandi which is prepared after every four years in terms of section 41(2) of the said Act. But such entries shall always be considered as a part of the jamabandi unless they are changed, modified or rescinded in a subsequent settlement with the consent of the landowners. Since the entries of Wajib-ul-Arz prepared in the last settlement of 1924-25 has remained the same, therefore, notwithstanding the fact that the respondents have been shown as owners in the jamabandis prepared after the settlement of 1924-25, their ownership to the extent of the land covered by the wells referred to above shall continue to be conditional and subject to the incidence of partition, whenever the shamlat is partitioned.
11. The upshot of the matter, therefore, is that the rights of the parties are always controlled by the conditions of various Wajib-ul-Arze prepared at the time of settlement and not merely by the entries in the `ownership column' of any succeeding jamabandis including the jamabandi immediately preceding the consolidation operations. In the instant c as the Consolidation Officer had partitioned the shamlat land accordin to the contractual agreement of the landowners as entered in the Wajib-ulArzes and Misls Haqiat prepared at the settlements of 1880, 1903-4 and 1924-25, therefore, the Additional Commissioner (Cons.) had no justifica tion to interfere in the matter and order the wandas of the parties to prepared simply on the basis of their rights of ownership as entered in the last jamabandi, regardless of the eii,ties of the Wajib-ul-Arzes, whic controlled such rights. The order of the Additional Commissioner (Cons.), dated 27-9-1982 is, therefore, illegal and unsustainable.
12. Consequently this revision petition is allowed and the order of the Additional Commissioner (Cons.), dated 27-9-1982 is set aside.