' This revision petition is directed under section 13 of the Consolidation of Holdings Ordinance, 1960 against the order dated 29-1-1986 of the Additional Commissioner (Cons.), Faisalabad Division, whereby he rejected the revision petition of the petitioners.
2. Brief facts of the case are that the Consolidation Scheme of Revenue Estate Durraj, Tehsil Shorkot, District Jhang, was confirmed under section 10(3) of the Consolidation of Holdings Ordinance, 1960 by the Consolidation Officer, by his order dated 30-8-1984. The petitioners feeling aggrieved filed an appeal in the Court of Collector (Cons.) with the prayer that the land comprising Square No,15, Fields Nos.2, 8/2, 9, 13 measuring approximately 24 Kanals may be restored to them as the same was in their possession as mortgagee pre-consolidation. The Collector (Cons.), vide his order dated 10-3-1985 rejected the appeal holding in his order that the petitioners were not owners of the land. The petitioners challenged the Collector (Cons)'s order in the Court of Additional Commissioner (Cons), who, vide his impugned order rejected the revision on the same score.
Hence this revision petition.
3. The learned counsel for the petitioners contended that the petitioners' appeal before the ADC/Collector (Cons.) as well as the revision before the Additional Commissioner (Cons.) was dismissed on the solitary ground that the petitioners were not the land owners and hence they had no locus standi to move the consolidation authorities for relief. Both the Courts below had not interpreted the term 'land owner' in its true perspective as given in sections 2(j) of the Consolidation of Holdings Ordinance and 4(13) of the Land Revenue Act, 1967. The petitioners for all practical purposes were land owners in possession of land for over 100 years as the mortgagees.
The respondents i,e, mortgagors did not own any land in the revenue estate except the land in dispute and, therefore, there was no reason for taking away the subject land from the petitioners.
The land given in exchange to the petitioners was of inferior quality and situated on the bank of the river.
4. The learned counsel for the respondents, in rebuttal, maintained that the mortgagee stands on a different footing from the land owners and hence could not be treated equally. The petitioners' revision petition suffered from the defect of impleading more respondents as parties before the Additional Commissioner (Cons.) as well as in this forum than were impleaded by them before the Collector (Cons.).
5. I have considered the arguments, perused the consolidation and revenue record as well as the sketch map produced by the Patwari. It is admitted fact that the petitioners were in possession of the subject land for over 100 years as mortgagees. However, as a further precaution, a detailed scrutiny of the record was made which confirmed that the predecessors-ininterest of the petitioners were mortgagees of the land in dispute which had been mortgaged in their favour by one Inayat son of Akbar prior to settlement and through inheritance this land had devolved upon the present petitioners. No change was made in the successive records of rights of this long period regarding Inayat, the mortgagor. Further that this land stood in possession of the petitioners or their predecessors-in-interest throughout this period.
6. The word 'mortgagee' has not been defined in the Consolidation of Holdings Ordinance although their rights have been protected under section 17 A thereof and under Rules 21 to 23 of the Consolidation of Holdings Rules but before going over to the procedure for transfer of encumbrance provided therein, it would be pertinent to examine the definition of land owners given in the Ordinance ibid, which is reproduced below:- "2(j) "land owner" does not include a tenant, but does include a person to whom a holding has been transferred, or an estate or holdings has been let in farm, for the recovery of arrears of land revenue or of a sum recoverable as such arrears, and every other person not hereinbefore mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate;"
' The words 'and every other person not hereinbefore mentioned who is in possession of an estate or any share or portion thereof' are very important for the purposes of the instant case as they are broad enough to include a mortgagee in possession, as the petitioners happen to be. It is well- established that possession without title is of no consequence in consolidation proceedings but in the instant case the mortgagees of over 100 years had a legally valid title as well as undisputed possession. Therefore, the findings of the Courts below and assertion of the learned counsel for the respondents that the mortgagee stood on a different footing than the land owner is not correct and the rights conferred on or acquired by them under the law cannot be denied to them.
7. Having settled this issue the procedure prescribed under the rules ibid remains to be seen regarding transfer of encumbrance. The basic principles thereof have been laid down in Rule 21 ibid as follows:-- "21. Principles.--In deciding to what part of a new holding an encumbrance under section 17 shall be attached, the Consolidation Officer shall have due regard to the following considerations:--
(a) the market value of the properties concerned; and
(b) The feasibility of demarcating the new area to which the encumbrance is to be attached."
It is evident that while transferring the encumbrance the market value of the properties concerned is to be taken into consideration, which means that the encumbrance can be transferred to a property of an equal value, which may include larger or smaller area in ratio with the value. In the instant case the encumbrance was transferred to the river bank and both the petitioners and Ghulam Ali respondent expressed their view before me that the disputed land was of better quality than the land on the river. But the Consolidation Officer treated both on equal footing.
8. Another fact which is evident from the perusal of the sketch is that the petitioners' main holding is and around Squares Nos.13, 14 and 15 and the disputed land was quite contiguous to their main holding, instead they were given land in exchange of subject property in Squares Nos. 35 and 36.
Apart from erroneous appreciation of the facts and legal position of the case and by ignoring more than 100 years long-standing possession of the petitioners the authorities below also do not seem to have considered the principle of consolidation. If the land in their possession had been given to the petitioners that would have been quite in keeping with the principles of consolidation and their total holding would have formed one compact block. There was no compelling reason for transferring this encumbrance to a far-off place and thus increasing the number of the plots of the petitioners, who are mostly women and at least two of them are widows. It has been held in PLD 1987 SC 16 that "where a consolidation scheme is found to be so offensive to the requirements of law, appears on the face of it to be unjust and unfair, Consolidation Authorities are under a duty to reject it even though it be based on compromise or undertaking among the patties or most of them".
9. The upshot of the foregoing discussion is that the revision succeeds and the orders of the Courts below are set aside and consequently the following changes, in the schemes of the parties, shall be made:-- {{TABLE}} Scheme Name of the parties Area to be Area to be No, excluded included #TBS 164 Reference mutation No, 719, attested on 15-11-1989 Tabdel Milkiat Mst. Alam Khatoon etc. Petitioners #TBE Kha. No, 35/10/1 (3K-14M) Kha. No, 36/ 6 - 8K-OM 7/2 - 4K-OM 14/3 - OK-4M 15 - 8K-OM Total : 23K-18M Qittas --5 #TBS 126 Ghulam Ali etc. Respondents #TBE Khasra No, 15/ ------- 2 - 8K-OM 8/2 2K-16M 9 - 8K- OM 13/1 - 5K-2M Total : 23K-18M Qittas - 4 Khasra No, 15/ 2 - 8K-OM 8/2 - 2K-16M 9 - 8K-OM 13/1 5K-2M Total : 23K-18M ---- Qittas - 4 Khasra No, 35/ 10/1 3K-14M Khasra No, 36/ 6 - 8K-OM 7/2 - 4K-OM 14/3 - OK-4M 15 - 8K-OM Total : 23K-18M Qittas - 5