' This judgment will also dispose of Writ Petitions Nos. 1221 of 1969, 1226 , of 1967 and 5169 of 1983 as common questions of law and facts are involved therein.
2. The dispute relates to land measuring 96,000 kanals comprising Khata No, 304 of village Doggar Aulakh Tehsil, and District Bahakkar which is admittedly Shamilat land. The petitioners Sullah etc. Were Aala Malikans. On 13-6-1962 a mutation was sanctioned in favour of these Aala Malkans in respect of this entire land. Malik Sher etc. Respondents Nos.4 to 9 filed an appeal before the Collector (Consolidation) who by order, dated 28-1-1967 accepted the same and remanded the case to the Revenue Officer for fresh order. This-order was challenged by the petitioners by filing appeal before the Additional Commissioner (Revenue) which was dismissed by order, dated 28-4- 1967. After remand the Revenue Officer through order, dated 1-6-1967 sanctioned mutation again in favour of the petitioners. Respondents Nos. 4 to 9 filed appeal before the Collector. During the pendency of this appeal on the other hand the consolidation operation had also started. The respondents/appellants made an application for an order staying the consolidation proceedings.
The Collector through order, dated 6-11-1967 stayed the consolidation proceedings. The present petitioners felt aggrieved and filed an appeal against the said order before the Additional Commissioner (Revenue). This appeal was accepted by the Additional Commissioner (Revenue) through order, dated 15-2-1968 ex parte and the order, dated 6-11-1967 staying consolidation proceedings was vacated. Malik Sher etc. Made an application to set aside the said ex parte order which application was rejected by the Addl. Commissioner through order dated 22-2-1968. Malik Sher etc. Filed revision petition before the Member, Board of Revenue. Which was accepted through order dated 10-7-1969 and the order dated 6-11-1967 staying consolidation proceedings was restored. The entire khata No, 304 regarding Shamilat land was excluded from the purview of consolidation. This order has been challenged by the petitioners in Writ Petition No, 1221 of 1969.
During the pendency of this writ petition through an interim order the authorities were permitted to carry on consolidation proceedings. In consolidation proceedings the entire khata No, 304 was given to the petitioners who were Aala Malkans. A mutation No, 1808 of partition as a consequence thereof was sanctioned in their favour on 24-8-1969.
3. On the other hand the Collector accepted the appeal of respondents Nos.4 to 9 against the order, dated 1-6-1967 through which mutation No, 1655 regarding this land was sanctioned in favour of the petitioner i.e, Aala Malkans through order, dated 19-9-1970 and the said mutation was set aside. It was held that the words "shamilat deh" had been entered in the column where the names of Adna Maliks are always written and at the same side in the column for the name of Aala Maliks the names of the respondents/petitioners had been written. It was ordered that the rights of Sullah etc. In the "shamilat deh" as Aala Maliks should be extinguished according to Para. 22 of MLR 64 read with Para. 6(a) of the Notification, dated 3-3-1960 and the land in question should be shown as "shamilat deh" in No, 5 meant for proprietors of land in the Jamabandi. The arguments of the petitioners that previously when some land was acquired by the TDA from the shamilat land the compensation was given to the petitioners as owners of the land were repelled with the reasons that after promulgation of MLR 64 which extinguished Aala Malkiat rights these arguments had no force. Feeling aggrieved the petitioners filed appeal before the Additional Commissioner Sargodha Division Sargodha which was dismissed through order, dated 30-3-1971. It was held that shamilat deh had been entered in column No,5 as Adna Maliks and it could not be concluded that no Adna Malik was entered under the petitioners and the removal of the petitioners' name from column No,3 was in accordance with para. 22 of MLR 64 through which intermediary interest such as Aala Malkiat were extinguished without'any compensation. The petitioners filed revision petition before the Member, Board of Revenue which was dismissed through order, dated 20-5-1982. A review petition was filed by the petitioners which was also dismissed by order, dated 18-5-1983.
Writ Petition No,5168 of 1983 has been filed against these orders passed by the Revenue authorities in respect of Mutation No, 1655.
4. The facts regarding W.P. No, 1226 of 1967 briefly stated are that on 21-6-1957 through Mutation No,1252 TDA acquired land measuring 46,396 kanals 15 marlas comprising Khata No, 304 which is the Khata in dispute. On 296-1957 another Mutation No, 1253 was sanctioned in which this acquired land was mutated in the name of TDA which was shown Aala Khud Adna Malik of the same and through Mutations Nos. 1328, 1340, 1324, 1350, 1354, 1370, 1371, 1441, 1462, 1466, 1471, 1690 and 1692 an area measuring 50,686 kanals 1 marla was excluded from village Doggar Aulakh and new Chaks were carved out as Nos. 22, 25 to 29, 31, 178, 180, 181 and 182/TDA and 53 ML. The remaining area of 96,378 kanals 18 marlas remained in Bairun Block. It may be mentioned here that the total land in Khata No, 304 was measuring about 147,000 kanals. After excluding the area acquired by the TDA the dispute is regarding land measuring about 96,000 kanals. On 20-8-1952 the Land Acquisition Collector Thal Development Authority delivered award regarding compensation of land acquired by the TDA. It was ordered that the amount of compensation be desposited in the Government Treasury because there was dispute between Aala Maliks and Adna Maliks regarding entitlement of the compensation. On 10-11-1960 E.A.C.O. Bhakkar passed an order that Aala Maliks were the sole owners. This was appealed against before the Colonization Officer Bhakkar which was dismissed through order, dated 2-10-1962. A further appeal was filed before the Chairman TDA which was also dismissed on 3-4-1963. However, on 26-8-1963 the Land Acquisition Collector amended the award.
A revision petition was filed before the Member, Board of Revenue which was accepted through order, dated 28-2-1967. The Member, Board of Revenue set aside the orders passed by the Chairman TDA, Consolidation Officer and the EA.C.O. And restored the award made by the Collector. It was held that the parties would be at liberty to seek whatever legal remedy may be available under the TDA Act, or any other relevant provisions of the Law or the Award. The Award given by the Land Acquisition Collector on 20-8-1.952 through which the amount of compensation was ordered to be deposited in the Government Treasury was restored. This order has been challenged in Writ Petition No, 1226 of 1%9.
5. The facts forming the background of dispute in Writ Petition No, 5169 of 1983 are that an application was made on 25-3-1970 by Ghulam Hussain etc. Regarding the preparation of Girdawari to the Deputy Commissioner, Mianwali, praying that the Girdawari should be prepared by the Colony Mahal Staff on the basis of Mahal record and not on the basis of the consolidation record because this entire Khata No, 304 had been excluded from the purview of consolidation by the Member, Board of Revenue through order, dated 10-7-1969. This application was accepted by the Deputy Commissioner by order, dated 3-4-1970. The petitioner Ladhu etc. In this writ petition made an application on 6-4-1970 to the Deputy Commissioner for rescinding the order, dated 3-4- 1970. The Deputy Commissioner through order, dated 9-4-1970 recalled the said order. Malik Sher filed an appeal before the Additional Commissioner which was accepted and the case was remanded to the Deputy Commissioner. After the remand the Deputy Commissioner passed an order on 26-9-1970 directing that the stay order granted by the Additional Commissioner against consolidation proceedings should be implemented the consequence of which was that the Girdawari which was being prepared by the Consolidation staff was stopped and the Revenue staff started preparing the Girdawari. The petitioners filed appeal before the Commissioner, Sargodha Division, Sargodha against the said order which was rejected through order, dated 17-3-1971. The petitioners filed revision petition before the learned Member, Board of Revenue which was dismissed through order, dated 20-5-1982. A review petition filed by the petitioners for review of the said order passed by the Member, Board of Revenue was also dismissed on 18-5-1983. Writ Petition No, 5169 of 1983 is directed against these orders passed in respect of preparation of Girdawari by the Revenue staff instead of Consolidation staff.
6. Learned counsel for the petitioners argued that the petitioners being Aala Maliks and there being no Adna Maliks under them, therefore, they are the full proprietors of the entire Shamilat land comprising Khata No, 304 measuring 96,000 kanals.
7. The argument is based on Para. 6(d) of Notification, dated 3-3-1960 issued by the Land Commission Authorities. In order to fully appreciate the argument addressed by learned counsel for both the parties based on the provisions of Para. 22 of MLR 64 and the said Notification, it will be useful to reproduce in extenso the said Para. 22 and Para 6(d) of notification, dated 3-3-1960. Para. 22 of MLR 64 reads as under:-- ' Para. 22.--Intermediary interests.----Ala-malkiat, and similar other interests subsisting immediately before the commencement of this Regulation, shall, on such commencement, stand abolished, and no compensation shall be claimed by, or paid to, any person affected by the abolition."
' Para 6(d) of Notification dated 3-3-1960 reads as under:-- "6(d) Where a person is entered as Ala Malik, as well as Adna Malik or where land is held only by an Ala Malik and there is no Adna Malik under him the Ala Malik shall be considered as full proprietor and the entries in the Revenue Records shall be corrected accordingly.
A bare reading of para. 22 of MLR 64 shows that all intermediary interests like Aala Milkiat and similar other interests subsisting immediately before the commencement of the said Regulation stood abolished without payment of any compensation to any person who was affected by such abolition. By operation of para. 22 the rights of the petitioners as Aala Maliks stood automatically abolished, therefore, the Revenue Authorities did not commit any illegality in removing the names of the petitioners from column No, 3 in which they were recorded as owenrs in the capacity of Aala Maliks.
8. The question still remains to be decided whether under para. 6(d) of Notification, dated 3-3-1960 the petitioners were entitled to claim full proprietorship of the land even after abolition of intermediary interests. Para. 6(d) as is manifest from its reading was applicable where there were no Adna Maliks under the Aala Maliks. It has been held by the Commissioner Sargodha Division in his impugned order, dated 30-3-1971 that shamilat deh were entered in column No, 5 meant for Adna Malik, as such, it could not be concluded that no Adna Malik was entered under the petitioners. Learned counsel for the petitioners when questioned as to how in view of this finding and the entry in column No,5 of shamilat deli as Adna Malik it could be maintained by the petitioners that there were no Adna Maliks, learend counsel maintained that the entries in column No,5 of Shamilat deh as a matter of fact relate to show description of land and they do not mean that the entire proprietary body of the village was to share the shamilat land as Adna Maliks. The argument of the learned counsel for the petitioners in my view has no substance. Column No,5 as observed by the Revenue authorities is meant for Adna Maliks. The entries showing the land as shamilat deh means that the entire proprietary body of the village was treated and considered to be Adna Maliks, therefore, it could not be argued that the petitioners were full proprietors of the entire land by virtue of Para. 6(d) of Notification dated 3-3-1960 on the ground that there were no Adna Maliks under them. It may also be mentioned here that in the year 1941 Aala Maliks i.e, Sullah etc. Filed number of suits for possession and ejectment against Aala Khud Adna Maliks. The matter went up to the High Court. Mr. Justice Mahajan recorded a finding that the plaintiffs (Ala Maliks) were not the exclusive owners of the Shamilat and that the defendants (Ala Khud Adna) are not tenants at will under them and that the plaintiffs could not exercise rights of absolute ownership in the matter of dispossessing the defendants from these lands. In the said case the trial Court passed decree for possession in favour of Aala Maliks in the suits filed by Aala Maliks. It may be pertinent to note here that all the defendants did not file appeals before the High Court, therefore, the decree passed against the defendants in those suits in which appeals were filed only were set aside. The petitioners made an application for execution of decree against those defendants who did not file appeal and the decree was passed in suit filed against them but this Court ultimately rejected the said application for execution on the ground that under Para. 22 of MLR. 64 Aala Milkiat rights stood extinguished. The judgment delivered by Mr. Justice Mahajan was maintained and upheld in further appeal by the Division Bench of this Court which is reported as Mitha v. Ghulam Hussain PLD 1949 Lah.
82. In the presence of Aala Khud Adna Maliks, Adna Maliks in the village it could not be argued that the petitioners as Aala Maliks were the full proprietors of shamilat land. The petitioners as all others would be entitled to retain land as full proprietors which is in their respective possession and cultivation. In Ghulam Haider v. Ghulam Raza Shah PLD 1979 Lah. 481 it has been observed as under:--- "Ala Malkiat rights already stood abolished on 7-2-1959 when MLR 64 was enforced. The dual proprietorship was finished. Thereafter the proprietorship vested in the owner in actual possession of the area."
9. In view of the above discussion the orders passed by the Revenue authorities for removal of the names of the petitioners as Aala Maliks in view of 'Para. 22 of MLR 64 is unexceptionable. The Revenue authorities have not committed any illegality, therefore, the impugned orders do not suffer from any jurisdictional defect calling for interference by this Court in Constitutional jurisdiction.
10. Since there was dispute between the parties regarding ownership of Shamilat land which was serious in nature, therefore, the learned Member, Board of Revenue was legally justified in passing the order for excluding the land in dispute from the purview of consolidation. The order in this regard is perfectly valid which does not suffer from any legal defect. The consolidation of land and its partition in pursuance of interim order of this Court would be of no effect because the same has been done on the basis that the petitioners were the full proprietors of the land to the exclusion of others. In view of my finding that the entire proprietary body of village was rightly held to be entitled to the land in dispute, the consolidation proceedings and orders passed therein are of no legal effect. Since through a valid order the learned Member, Board of Revenue excluded the land in dispute from the purview of consolidation operation, therefore, it was rightly held that the Girdawari should be prepared by the Mahal Staff. Likewise it was rightly held that the compensation of the acquired land should be deposited in the Government Treasury instead of paying it to the petitioners who claimed to be the exclusive owners of the land till such time the dispute was settled. The said compensation would be paid to all the persons to whom the land would go according to their possession as it has been held that the entire proprietary body of the village is to share the land.
11. For the foregoing discussion there is no merits in all these writ petition which are hereby dismissed with no order as to costs.