MUNIR A .SHEIKH, J:- This judgment will also dispose of Writ Petition No.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 96000 kanals comprising khata No.304 of village Doggar Aulakh Tehsil and District Bhakkar which is admittedly Shamlat land. The petitioners Sullah etc. Were Aala Malkans. Qn 13.6.1962 a mutation was sanctioned in favour of these Aala Malkans in respect of this entire land. Malik Sher etc. Respondents No.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 Addl: 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 No.4 to 9 filed appeal before the Collector. During the pendency of this appeal on the other had 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. Addl: Commissioner (Revenue). This appeal was accepted by the Addl: Commissioner (Revenue) through order dated 15.2.1968 ex-parte and the order dated 6.11.67 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 shamlat land was excluded from the purview of consolidation. This order has been challenged by the petitioners in W.P. No.1221/1969. 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 had the Collector accepted the appeal of respondents No.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 "shamlat ch" 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 "Shamlat 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 "Shamlat 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 shamlat 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 Addl: Commissioner Sargodha Division Sargodha which was dismissed through order dated 30.3.1971. It was held that shamlat ch 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 Malqiat 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 petitioner/ which was also dismissed by order dated 18.5.1983. W.P. 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 46396 kanals 15 marlas comprising khata No.304 which is the khata in dispute. On 29.6.1957 another mutation Noll253 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 area measuring 50686 kanals 1 maria 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 96378 kanals 18 marlas remained in Bairun Block. It may be mentioned here that the total land in khata No.304 was measuring about 147000 kanals. After excluding the area acquired by the TDA the dispute is regarding land measuring about 96000 kanals. On 20.8.1952 the Land Acquisition Collector Thai Development Authority delivered award regarding compensation of land acquired by the TDA. It was ordered that the amount of compensation be deposited in the Government Treasury because there was dispute between Aala Maliks and Adna Maliks regarding entitlement of the compensation. On 10.11.1960 EA.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 E.A.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 y^ward given by the Land Acquisition Collector on 20.8.1952 through which the amount of compensation was ordered to be deposited in the government Treasury ws restored. This order has been challenged in W.P. No.1226 of 1969.
5. The facts forming the background of dispute in W.P. No.5169 of 1983 arc 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 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 6.4.1^70 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 Addl: 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 by the Addl: 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 petitioner for review of the said order passed by the Member, Board of Revenue was also dismissed on 18.5.1983. W.P. 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 Shamlat land comprising khata No.304 measuring 96000 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 parlies based on the provisions of Para.22 of MLR.64 and the said Notification, it will be useful to reproduce in extension the said Pare 22 and Pare 6(d) notification dated 3.3.1960. Para 22 of MLR.64 reads as under:- Parc.22 Intermediary interests.- Aala-milkiat, and similar other interest 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 Aala Malik, as well as Adna Malik or where land is held only by an Aala Malik and there is no Adna Malik under him the Aala 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 Ala Milkiat and similar other interest 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 owners 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) 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 303.1971 that shamlat deh. Were entered in column No. 8 meant for Adna Malik, as such, it could not be concluded that no Adna Malik was entered under the petitioner.
Learned counsel for the petitioner when questioned as to how in view of this finding and the entry in column No.5 of shamlat deh as Adna Malik it could be maintained by the petitioners that there were no Adna Malik, learned counsel maintained that the entries in column No.5 of shamlat deh as a matter of fact relate to show description of land and they do not, mean that the entire proprietory body of the village was to share the shamlat land as Anda 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 shamlat deh means that the entire proprietory body of the tillage was treated and considered to be Adna Maliks, therefore, it could not be argued that the petitioners were full proprietor of the entire land by virtue of Pare 6(d) of Notification dated 3.3.1960 0n 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 (Aala Maliks) were not the exclusive owners of the Shamlat. 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 on 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 dis not the appeals before the High Court, therefore, the decree passed against the defendants in these 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 i.e appeal and the decree was passed in suits filed against them but this Court ultimately rejected the said application for execution on the ground that under Para.22 of MLR.64 Aala rights stood extinguished. The judgment delivered by Mr. Justice Mahagan was maintained and upheld in further appeal by the Division Bench of this Court which is reported as Mitha Vs. Ghulam Hussain (PLD 1949 Lah: 82). In the i.e presence of Aala Khud Adna Maliks, Adna Maliks in the village it could not be used that the petitioners as Aala Maliks were the full proprietors of shamlat I not. 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 Vs. 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. There after 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 Pare.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 shamlat 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 do 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 affect because the same has been done on the basis that the petitions were the full proprietors of the land to the exclusion of others. In view of my finding that the entire proprietory body of village was rightly held to be entitled to the land in dispute, therefore, the consolidation proceedings and order 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 proprietory body of the village is to share the land.
11. For the foregoing discussion there is no merits in all these writ petitions which are hereby dismissed with to order as to costs.