AJMAL MIAN, J: --Leave to appeal was granted to consider the question, whether respondent No.1 was eligible to the grant of proprietary rights if he was in cultivating possession of the land on 8-10- 1960 but not on the date when his case for grant of proprietary rights was taken up by the Revenue Authority.
2. The brief facts to be noted are that respondent No.1 was allotted the suit land under the Landless and Ejected Tenants Scheme formulated under section 10 of the Colonization of Government Lands Act, hereinafter referred to as the Act, by the Provincial Government in 1956. The Provincial Government issued Memo. No. Col./8/24-57(4167) dated 8-10-1960, hereinafter referred to as the memo. Addressed to the Secretary (Colonies), Board of Revenue, West Pakistan, informing him that the Government of West Pakistan was pleased to accord sanction to the grant of proprietary rights to the allottee's of the State land measuring 64 Kanals situated in Chak No. 411/EB Tehsil Pakpattan, District Montgomery, under the Landless Ejected Tenants Scheme, hereinafter referred to as the land and the scheme, sanctioned by the Government from time to time till 1958, subject to the conditions contained therein. It may be advantageous to reproduce condition contained in sub- para. (ii) of Para. 2 of the memo. Which reads as follows:-- "(ii) Only those lessees will be eligible to purchase proprietary rights who cultivate the land themselves. Cultivating the land through the members of his family will be considered as self- cultivation. But cultivation by hire labour be excluded from the terms of eligibility."
It appears that respondent No.1 applied for the proprietary rights in terms of the memo. But the Collector by his order dated 25-7-1962 declined the same and ordered the resumption of the land on the ground that respondent No.1 was not in self-cultivation of the land in Kharif 1961 and Rabi 1962. Against the above order, respondent No.1 filed an appeal, which was dismissed by the Additional Commissioner. Thereupon, he filed Civil Suit No. 596 of 1965 for declaration and permanent injunction, which was decreed by the trial Court by a judgment/decree dated 3-3-1966.
Against the above judgment and decree, the appellant filed Civil Appeal No. 116/ADJ of 1966 which was dismissed by the learned Additional District Judge, Montgomery, by his judgment/decree dated 16-7-1966. .Against the above judgments and decrees, the appellant filed R.S.A. No. 895 of 1966 which was dismissed by a learned Single Judge of the Lahore High Court by the judgment dated 1-7-1980. Against the above judgment, leave was granted to consider the aforesaid question.
3. In support of the above appeal, Mr. Muhammad Nawaz Abbasi, learned Assistant Advocate- General, Punjab, has vehemently contended that in view 'of the above quoted sub-para. (ii) of Para. 2 of the memo., the respondent No.1 could have. Claimed the proprietary rights if he would have been in cultivating possession not only on the date of the memo. But at the time when his request for grant of proprietary rights was considered. He has further submitted that the Courts below have erred in holding that respondent No.1 was entitled to the benefit of the memo. Though factually respondent No.1 was not in self-cultivation in Kharif 1961 and Rabi 1962. In our view, the right to apply for proprietary rights accrued to respondent No.1 on 8-10-1960 when the memo. Was issued. It is true that respondent No.1 was not in self-cultivation for the periods of Kharif 1961 and Rabi 1962, but there is no finding recorded by the Collector or the Additional Commissioner to the effect that he was not in possession when the resumption order was passed on 25-7-1962. On the contrary, the learned counsel for respondent No.1 has produced Khasra Girdawari which indicates that factually respondent No.1 was in self-cultivation in Kharif 1962-63. Mr. Waheeduddin Virk, learned Advocate Supreme Court appearing for respondent No.1, has also referred to the case of Kamir v. The State PLD 1986 Rev. 2 Board of Revenue Punjab and the case of Muhammad Aslam v.
Sardar Muhammad PLD 1988 Rev.
63. Board of Revenue Sindh, to contend that it is the date of memo. Which is relevant in the present case. We are also inclined to hold that right to apply for proprietary rights in the land accrued to respondent No.1 on 8-10-1960, when the memo. Was issued. Admittedly, respondent No.1 was in self-cultivation at that time. The Collector was not justified to decline respondent No.1's request on the t ground that he was not in self-cultivation in Kharif 1961 and Rabi 1962, when on the date when he was passing the order, respondent No.1 was in possession and was self-cultivating. The judgments of the three Courts below seem to be in consonance with law. The appeal has no merits and, therefore, it is dismissed, but there will be no order as to costs.