' The facts giving rise to this revision petition are that respondents Nos.1 and 2, alongwith one Nazir Ahmad (since died), preferred an application for sanction of private passage for access from the village to their land. The Assistant Commissioner/Collector, Yazman, after obtaining a report from the field staff sanctioned the requisite passage vide his order dated 5-12-1985. The petitioner and respondent No,3 challenged that order before the Additional Commissioner, Bahawalpur who vide his impugned order dated 25-6-1989 dismissed the same on the point of limitation. Hence this revision petition under section 164 of West Pakistan Land Revenue Act, 1967.
2. The learned counsel for the petitioner contended that the path had been given through the land owned by him by the Assistant Commissioner without hearing his predecessor-in-interest. No compensation was paid for taking private land for the purpose of a path. These points had not been considered by the learned Commissioner in the impugned order. There was no limitation against a void order and the learned Additional Commissioner's finding that the path was in use since Kharif 1986 was belied by the Patwari's report (Annexure-D) to the petition. The respondent was also a Patwari and had managed to obtain this path illegally. It was prayed that the impugned order may be set aside.
3. The learned counsel for the respondents maintained that the petitioner had preferred a time- barred revision petition which is liable to dismissal. Muhammad Akram, the predecessor-in- interest of the petitioner had sold the land much earlier and he had no objection to the earmarking, of the path in dispute. The petitioner has also preferred a civil suit which was later withdrawn by him on 6-12-1989. The respondents had acquired valuable rights in this path and therefore the revision petition may be dismissed.
4. I have considered the arguments and perused the case record. The land in dispute was mutated in favour of the petitioner and his brother Muhammad Hussain vide Mutation No,346 attested on 16-2-1989, whereas the path in dispute was sanctioned by the Assistant Commissioner/Collector Yazman's order dated 5-12-1985. That order does not mention at all whether the relevant land- owner of Khasras Nos.87/11, 20, 21, 88/1 and 10 was heard at any stage or whether his consent was obtained at all. The order was made in the presence of Muhammad Siddique and the Patwari. The- learned Assistant Commissioner/Collector did not consider whether he was competent under any law to provide a path through private land without compensation or without express consent of the land-owner. The order of the Assistant Commissioner/Collector was therefore void ab initio and thus there is no question of limitation in this regard. This point was entirely lost sight of by the Additional Commissioner (Revenue) who also did not consider whether a path could be provided through privately owned-land without compensation or the land-owners's consent. The respondents have placed on record affidavits of one Jano Ram and one Manzoor Ahmad who claimed to be the tenants of Muhammad Akram, predecessor-in-interest of the petitioner to the effect that the said Muhammad Akram had told them that he had no objection to the provision of the path in dispute. These affidavits are dated 21-11-1989 and 29-11-1989. However, no affidavit of Muhammad Akram has been placed on record and he has not appeared before any Court below to confirm this secondary evidence which was obtained at a much later stage by the respondents.
These affidavits are not admissible in revisional proceedings as the witnesses have not been produced and cross-examined in a lower forum. The upshot of the foregoing discussion is that the revision petition succeeds resulting in setting aside the order of die Additional Commissioner (Revenue) dated 25-6-1989 and of the Assistant Commissioner/Collector dated 5-12-1985.