' This revision petition is directed under section 13 of the Consolidation of Holdings Ordinance, 1960, against the order, dated 4-7-1985 of the Additional Commissioner (Cons.), Sargodha Division, whereby he accepted the appeal of the respondents.
2. Brief facts of the case are that the consolidation scheme of Revenue Estate Ahmad Nagar, Tehsil Chiniot, District Jhang was confirmed under section 10(3) of the Ordinance ibid by the Consolidation Officer on 20-2-1983. The petitioners feeling aggrieved filed an appeal in the Court of Collector (Cons.), on the ground that while confirming the consolidation scheme they had been given less land to the extent of 80 Kanals. The Collector (Cons.) directed the correction of the record since he held that the Patwari while preparing the Register Haqdaran Zamin for the year 1942-43 had carried out incorrect `Haqiat' of the parties. He directed that 67 Kanals 13 Marlas of land be taken away from "the Wanda of the respondents and given over to the petitioners vide his order, dated 9-6-1984. This order was assailed in the Court of Additional Commissioner (Cons.) by the respondents who vide his impugned order accepted the appeal of the respondents holding that the consolidation staff was not competent to go beyond the last Register Haqdaran Zamin and old disputed entries cannot be ordered to be corrected by the Collector (Cons.) for which a reference has to be made to the Civil Court. In this case the entries, whether correct or incorrect, were made more than forty years ago and these cannot be corrected by the Collector (Cons.) when he was not invested with the power of District Collector even. Thus, the Collector (Cons.) acted beyond his jurisdiction and the Additional Commissioner (Cons.) set aside the order of the Collector (Cons.). Hence this revision petition.
3. The learned counsel for the petitioners contended that the Patwari while preparing the record of rights for the year 1942-43 recorded Karam All son of Burhan, the predecessor-in-interest of the petitioners, against Khata No,15 as its exclusive owner. This person was recorded as owner of 3/4th share in Khata No,17 alongwith Dana, the predecessor-in-interest of the respondents, who was also shown as an owner of the 3/4th share. This was the only Khata jointly held by Karam Ali and Dana.
Against Khata No,19 the Patwari instead of recording Karam All with reference to Khata No,15 as an exclusive owner recorded the word {{URDU TEXT}}' after his name although he was the exclusive owner. Similarly instead of recording Khata No,15 he recorded Khata No,17. When the next Jamabandi i.e, for the year 1946-47 was prepared Karam Ali, as a result of the foregoing clerical mistakes, was recorded as an owner of 9/16 shares and 3/16 share was allocated to Dana with the result that the petitioners suffered a loss equivalent to about 71 Kanals. This mistake was not known to the parties and the petitioners continued to be in unhindered possession of their holding till consolidation opperations in the revenue estate. This was a patent clerical mistake committed by the Patwari while copying the entries of one Jamabandi in another Jamabandi and no order or decree regarding alterations of the shares of the parties had ever been made. The alterations of shares also did not meet the requirements of law under section 37 of the Land Revenue Act, 1887.
This clerical mistake was liable to correction under para. 7.44(f) of the Land Record Manual. This was in accordance with the principles of justice laid down in PLD 1980 Lah. 110; the jurisdiction of the Civil Courts in the matter of making correction in the Revenue Record having been ousted by virtue of section 172(2)(vi) of the West Pakistan Land Revenue Act, 1967. The respondents have no title to that land and cannot be given a large piece of land due to inadvertent mistake of the Patwari. The consolidation staff should have corrected these entries through Fard Badar.
4. The learned counsel went on to elaborate that there was a difference between correction of record and creation of rights. In the present case an attempt has been made to create the right in favour of the respondents. Which did not exist and for which there was no justification at all. The learned counsel placed reliance on P L D1974 SC 78; PLD 1982 Rev. 17; PLD 1982 Rev. 62; PLD 1989 Rev.
15; PLD 1989 Lah. 531 and on PLD 1976 Lah. 658 in which it was held that revenue authorities were competent to order correction through Fard Badar during consolidation proceedings. It was prayed that the impugned order may be set aside restoring the Collector (Cons.)'s order.
5. The learned counsel for the respondents maintained that the petitioner had preferred three appeals against the confirmation of the scheme. Appeal No,277/ADC(C) titled 'Muhammad Isa v.
Yara etc.' was dismissed on 29-5-1983; their second appeal 'Muhammad Isa v. Mst. Khatoon etc.' bearing No,44/ADC(C) was accepted on 26-6-1983; and the third appeal titled `Muhammad Isa etc. v. Dilmeer etc.' against the order of the Consolidation Officer, dated 20-2-1983 was preferred on 7-5-1984, which was accepted by the Collector (Cons.) on 9-6-1984 illegally as there is provision for only one appeal under section 11 of the Ordinance. The respondents' appeal was accepted by the Additional Commissioner (Cons.), Sargodha Division, vide the impugned order, dated 4-7-1985 and the parties were directed to seek their remedy in the Civil Court. This third appeal leading to the present revision petition was incompetent and barred by time. The Collector (Cons.) had misapplied section 172 of the West Pakistan Land Revenue Act to consolidation proceedings and in any case para.7.30 of the Land Records Manual and section 53 of the West Pakistan Land Revenue Act lay down that such cases should be taken to the Civil Court. The consolidation authorities cannot go beyond the Jamabandi Zerkar i.e, the current record of rights. Where intricate questions of law and facts were involved then even the Revenue Officers were not competent to interfere; the present case was one of long-standing entries for nearly over 42 years which could not be corrected even by the Revenue Officers. The Civil Court was the only competent Court in these circumstances and therefore, the revision may be dismissed.
6. I have considered the arguments, perused the case record and indeed the record of rights dating back to the period when the mischief seems to have occurred. The variation in the entries made in the record of rights 1942-43 appears to be without any authority or order or decree and it thus did not meet the requirements of section 37 of the Land Revenue Act, 1887. Obviously these entries were also not known to the parties as they continued to be in possession of their respective holdings, which squarely rules out the possibility of agreement between the parties as contemplated in section 37(b) of the Land Revenue Act, 1887. This fact was only discovered when the consolidation proceedings were taken up in the revenue estate. It must have come as a bolt from the blue to the petitioners who thereby suffered a loss of 71 Kanals in their entitlement.
However, these new entries do not confer any right under the law on the respondents as these were without any authority and an order or decree of the competent officer or a Court. The learned counsel for the respondents has not been able to show either during the course of his arguments or in his written arguments the justification or legal basis for these variations in the previously long- standing entries in the earlier records of rights. Once the mistake had been detected, or pointed out, then the consolidation authorities were duty bound to decide the issue one way or the other and not to cause a big loss in the entitlement of the petitioners by refusing to exercise jurisdiction.
To that extent the order of the Collector (Cons.) dated 9-6-1984 appears to be correct in essence if not procedurally (as would be seen later). The learned Additional Commissioner (Cons.), however, took a different view and referred the parties to the Civil Court for which there was no justifiable reason as the disputed entry was patently without any authority or jurisdiction and the revenue authorities were quite competent to correct it as held in PLD 1976 Lah. 658 being no more than a clerical mistake repeated several times over.
7. The learned counsel for the respondents has raised the issue of third and time-barred appeal by the petitioners before the A.D.C./Collector (Cons.). It is correct that section 11 of the Consolidation of Holdings Ordinance provides for an appeal against the order of confirmation by the aggrieved party. Having availed and exhausted the right of appeal, a further appeal was not competent before the Collector (Cons.) and the petitioner could have invoked revisional jurisdiction of Consolidation Courts. Instead of making any final orders himself on the appellate side on such an misconceived appeal, the Collector (Cons.) could have treated it as a revision in order to rectify miscarriage of justice and reported the case for orders to the Commissioner under section 13(2) and (3) of the Ordinance. The point of third appeal does not seem to have been raised before, or adverted to by, the learned Collector and the learned Additional Commissioner (Cons.) in their respective orders. But since it involves a point of law the respondents are not debarred from raising it at any stage even if they had not raised it before the Courts below. The revisional powers have under section 13 of the Ordinance been provided for examining, inter alia, what has already been taken place with a view to determine whether what had already taken place suffers from any illegality or impropriety and, as against the appeal, it cannot be said to be a continuation of the proceedings. No limitation has been prescribed for exercise of these powers by the Additional Commissioner (Cons.) even on the motion of a party. Therefore, what has taken place already can be examined and corrected, if necessary, in the present proceedings. I am fortified in my view by PLD 1985 SC 208.
8. For an act of commission or omission by the consolidation authorities an appeal or revision must be brought up before the Consolidation Courts as provided in the law or suo motu proceedings can be initiated. The present case is not an ordinary case for correction of revenue record for which reference should be made to the District Collector, but a case of substantial reduction in the entitlement of a party by the consolidation authorities through misreading or non-reading of the record and for not exercising jurisdiction. Its remedy is duly provided in the Statute by way of appeal, revision and even suo motu proceedings and cannot be taken away by executive instructions referred to in the impugned order. The learned Additional Commissioner (Cons.) also lost sight of Board of Revenue's letter No,583-85/768-LR.II, dated 7-5-1985 which advises the Collectors to adjudicate cases of erroneous entries in record of rights themselves rather than referring the public to Civil Courts.
9. The learned counsel for the respondents also raised the point of limitation regarding the third appeal before the Collector (Cons.). This point need not be dealt with at this stage because the third appeal before the Collector (Cons.) has already been held to be incompetent although the Collector may have arrived at a correct conclusion. The case is being disposed of on the revisional side under section 13 of the Ordinance now for which purpose the revision petition is within limitation.
10. The result of the foregoing discussion is that the revision succeeds, the orders of the Additional Commissioner (Cons.) and the Collector (Cons.) are set aside and the following changes shall be incorporated in the respective schemes of the parties:-- {{TABLE}} Scheme Name of right- Area excluded Area included. No, holder
30. Dilmeer and Khasras No, X Shameer sons 27/11 - 10K-7M of Thiraj 27/20 (equal share) /2 -West - 7K-7M 28/15/2 - 4K-18M 3 Qitas 22K - 12M
32. Mst. Fateh etc. Khasras Nos. Khasras Nos.
28/16/2 27/11 - 10K-7M -South 5K-2M 27/20/2 28/17 8K-18M -West - 7K-7M 28/18 1K-18M 28/15/2 4K-18M 28/24 7K-16M 3 Qitas - 22K-12M 28/25 8K-18M 30/1/1 6K-OM 30/2/1 6K-9M 7 Qitas 45K-1M {{TABLE}} Scheme Name of right- Area excluded Area included. No, holder
31. Javaid Akhtar Khasras Nos. Khasras Nos. etc. 29/4 4K-11M 30/1/ 29/5 8K-18M 1/lnorth 4K-18M 29/6 8K-18M 30/2/1 6K-9M 29/7 1K-9M 28/16 29/15 7K-16M /2 South 5K-2M 30/1/2 2K 18 M 30/1/2 2K-18M 28/17 8K-18M 30/10 8K-18M 28/18 1K-18M 30/11 8K-18M 28/24 7K-16M 30/12 8K-18M 28/25 8K-18M 30/13/1 5K-7M 10 Qitas 66K-11M 7 Qitas 43K-19M
1. Mst. Fateh etc. X Khasras Nos.
29/4 4K-11M 29/5 8K-18M 29/6 8K-18M 29/7 1K-9M 29/15 7K-16M 30/1/ 1/2 south_1K-2M 30/10 8K-18M 30/12 8K-18M 30/13/1 5K-7M 67K-13M {{TABLE}}
11. The case was heard on 13-3-1990 when written arguments were submitted subsequently should be informed of the instant orders.