' The dispute is with regard to Khasra No,1628/573/299 bearing property No,B-XI-3S-11 measuring 8 Kanals 4 Marlas 75 Sq.Ft. Situated in Village Khokharke, Tehsil and District Gujranawala. During the inspection of the Office of Sub-Registrar (Urban) by the Deputy Commissioner/District Registrar it was detected that sale-deeds No,17624, 17929 and 17625 executed by one Ghulam Ahmad Sheikh, petitioner on 4-404980' were fictitious and his ownership was also suspicious. The Deputy Commissioner asked the Assistant Commissioner to probe into the matter. Nizam Din etc. (respondents) also applied to the Assistant Commissioner for impleading them as a party to the case. The Assistant Commissioner submitted his report stating therein that above said property was transferred in the name of the petitioner by PTD on 24-1-1967 but the PTD does not indicate the description of area of the disputed property. As per record of Excise and Taxation Department the area of the property in question was only 10 Marlas and that the petitioner had encroached upon the graveyard of Muslims bearing Khasra Nos. 1628/573/299. After having report the Deputy Commissioner vide order dated 21-6-1986 under section 175 of Land Revenue Act, 1967 after hearing the parties observed that the petitioner was an encroacher and ordered that he and the vendees should be ejected from the area of graveyard. The petitioner assailed that order through an appeal before the Commissioner but failed. Hence this revision petition under section 164 of West Pakistan Land Revenue Act, 1967.
2. The learned counsel for Nizam Din etc. Respondents raised the preliminary objection that a Settlement appeal cannot be heard under the Land Revenue Act.
3. A perusal of the impugned order of the Commissioner, Gujranwala Division, dated 28-64987, shows that order was passed in appeal against the order of the Deputy Collector; Gujranwala, under section 157 of the Punjab Land Revenue Act, 1967. The present revision petition has also been preferred under section 164 ibid, and has to be, disposed of under that law.
4. The learned counsel for the petitioner contended that the petitioner came in occupation of the subject property, an evacuee bungalow, in 1956 while posted as a Sub-Divisional Officer and he filed CH-Form on 19-1-1961. The Deputy Settlement Commissioner transferred the property alongwith the garden and a PTO was also issued. The area was duly measured and was reproduced at Annexure-C. There was no surplus area. On a Court question, the learned counsel stated that there is no graveyard in this property. The civil suits filed by the respondents had been dismissed and thereupon proceedings under section 175 of the Land Revenue Act were illegally initiated because this section was not applicable as the land in dispute was not reflected as 'reserved for graveyard' in the Record-of-Rights and that the Revenue Authorities could not have re-opened the question of allotment of the property which had been settled long ago.
5. The learned counsel for the respondents Nizam Din etc. Stated that the respondents had a locus standi being Muslims living in that locality. The area in dispute was reserved as a graveyard and had been encroached upon by the petitioner. According to the record of the Excise and Taxation Department (1946-47 Survey), the area of the bungalow was only 10 Marlas. The CH-Form had been given by the petitioner under the aforesaid survey of the Excise and Taxation Department and he was entitled to that land. Chief Settlement Commissioner's memo. No,301-P-1-REH, dated 9-1-1960 had been withdrawn according to, PLD 1980 S.C. 65, and the excess area was not available to the petitioner. The area of the evacuee property could be estimated from the fact that its gross annual rent was Rs, 360 i,e., Rs, 30 per month only and it could not have been a large bungalow with a garden, The learned counsel for the respondents referred to the report of the ADC (G) dated 18-7- 1987 and relying on 1982 SCMR 348, he said that only 3 times of the plinth area could be transferred to the petitioner. i,e., 10 Marlas plus 30 Marlas=40 maths (two Kanals). The agricultural land attached with the property could not be transferred as some of this land had been allotted on various Khatas of Register RL Ill. According to PLD 1974 SC 276, the nature of the land has to remain the same, and according to PLD 1986 Lahore 116, the Revenue Authorities were competent to register a case. The learned counsel further pointed out that the PTD did not mention the area of the property and referred to para. 2 of page 9 of the impugned order.
6. I have considered the arguments and perused the case record of both the Revenue and the Settlement Departments, There is nothing on the record to show that Khasra No,1628/573/299 was ever reserved for the graveyard under order of any competent authority prior to 1980. A report was therefore obtained from the Deputy Commissioner/Collector, Gujranwala, that how this was recorded as a graveyard in the Record-of-Rights. His report is reproduced hereunder:- "Khasra No,1628/573/299 measuring 12 Kanals and 5-3/4 Marlas situated in Khokharke revenue estate was consisting of (chair Mumkin (Kothi) area measurin 9 Kanals and 5-3/4 Marlas and `Ghair Mumkin (Ahata-Jat) area measuring 3 Kanals, according to Register Haqdaran Zamin from the year 1950-51 to 1974-75. After that the Khasra No, was entered in the year 1978-79 as `chair Mumkin Street measuring 9 Kanals and 5-3/4 Marlas without any specific orders issued by any competent Court, Later on, in pursuance to the order of Civil Judge, Gujranwala, dated 28-7-1982, the said Khasra No, was converted into 'Ghair Mumkin Graveyard."
7. A perusal of the decree dated 28-7-1982 shows that Sheikh Ghulam Muhammad was not a party thereto. However. The decree is very much in the field and unless it is set aside by a competent Court it will have to be shown as such in the Revenue Record.
8. It is thus obvious that' orders of the Collector as well as the Commissioner do not suffer from lack of jurisdiction under section 175 of the Land Revenue Act, as the land in dispute has been shown as reserved for graveyard under orders of the Civil Court in 1982. However, the point which arises here is that after this land had been transferred to Sheikh Ghulam Muhammad, whether validly or otherwise, could it be available for graveyard or whether Sheikh Ghulam Muhammad could be treated as an encroacher. Obviously the right of the petitioner was acquired vide the PTD issued to him in respect of this property. However, the PTD does not mention the area of the bungalow and just mentions that full Property No,V-XI-3-S-11 was transferred to him. The area which has been calculated from the record and the relevant registers and admitted by the petitioner is 8 Kana 4 Marlas. The petitioner was entitled to 3 times of the plinth area of the houses inclusive of outhouses, garages, courtyards, etc. The report of the Inspector (Annexure 'C' to the revision petition), relied upon by the petitioner gives the area as under:- {{TALBE TEXT}} Total area of the bungalow 8K-4M 75 sq.Ft. The plinth covered area 1K-4M-81 sq.Ft. Three times the covered are 3K-12M-243 Sq.Ft. Total: 2+3 4K-17M-52 sq.Ft. Area of cemented pavement 3M-77 sq.Ft.
Area of approach roads 1K-1M-113 sq. Ft. Area of courtyards 1K-5M-230 sq.Ft. Area of passages 18M- 108 sq.Ft. Total: 8K-6M-36 sq.Ft.
It is significant to note that the area given against cemented pavement has been obliterated in the Annexure 'C' for one reason or the other. The entire house has been shown in this report to be consisting of passages, pavements and courtyards which in fact still should have been included in the three times plinth area. The report of the Inspector appears to be motivated and collusive. The area of the house shown in the Revenue Record is only 10 marlas which is further reinforced by the factum of a meagre monthly rent of Rs,30 per month according to the Excise & Taxation record. It does not stand to reason that the C monthly rent of a palatial property over an acre of land situated adjacent to the District Courts Gujranwala, would be assessed at Rs, 30 per month even in 1945. The area of the house transferred to Sheikh Ghulam Muhammad is therefore open to question and since the area so transferred is not specifically mentioned in the PTD, but a part of some obscure office file needs to be predetermined to settle the intricate questions of law and fact arising in this case. The learned counsel for the petitioner's contention that the case cannot be re- opened after the Settlement Authorities had become functus officio by transferring the property to the petitioner, is not correct in view of the ruling of the Supreme Court reported in 1987 SCMR 411 in which it has been held that inquiry can always be conducted in cases of fraud. This judgment is further supported by the judgment of the Supreme Court in Civil Appeal No,858/1984, Muhammad Anwar v. Deputy Commissioner, Gujranwala etc. Dated 20-5-1991.
9. The order of the ejectment of the petitioner from the suit land in the foregoing context appears to be harsh and accepting this revision petition set aside the orders of the Commissioner and the Collector to that extent. As the Chief Settlement Commissioner, I would like the Notified Officer/Deputy Administrator RP/ADC (G), Gujranwala, to determine the area to which the petitioner was genuinely entitled. If it transpires that the area transferred to the petitioner was in excess of the entitlement it shall be resumed by the Settlement Department for disposal under the Scheme for Disposal of Residual Properties.
10. The orders in this case were announced on 13-5-1991, but while dictating the present order it appeared necessary to obtain a further report from the Deputy Commissioner, Gujranwala, which has been reproduced above. The order shall now be communicated to the parties.