' Aggrieved by the order, dated 22-9-1990 of Additional Commissioner (Consolidation), Sargodha Division, Sargodha whereby he rejected the revision thereby maintaining the order of the learned Additional Deputy Commissioner (Cons.), Sargodha dated 23-11-1988, the petitioners have now come up in the revision to this Court under section 13 of the Consolidation of Holdings Ordinance, 1960.
2. The facts of the case are that the consolidation proceedings were started in village Shahwala, Tehsil Noorpur, District Khushab on 8-4-1972. The large part of the village measuring 98371K-15M was Shamlat land. As the civil litigation with regard to the measure of partition' of Shamlat was going on between the parties therefore, the consolidation proceedings were held in abeyance and were taken up on the conclusion of the civil litigation which ended in the year 1986. After two rounds of litigation between the parties which culminated up to the Supreme Court, the consolidation work started in the village and consolidation scheme was confirmed by the Consolidation Officer on 30- 12-1987 under section 10(3) of the said Ordinance. Aggrieved by the confirmation of the Scheme, the petitioners filed an appeal before the Additional Deputy Commissioner (Cons.) which was dismissed on 23-11-1988 and the revision also met the same fate in the Court of Additional Commissioner (Consolidation) on 22-9-1990. The point in dispute between the parties is the interpretation of the relevant finding given by various Civil Courts up to the level of the Supreme Court which is with regard to the measure for the partition of Shamlat land.
3. For the proper appreciation of the facts of the case and the issues involved, it is relevant to retrace the history of civil litigation between the parties in brief. Originally the litigation started when Noor Hussain respondent No,1 alongwith Muhammad Sharif son of Gulaya and others filed a suit against Mr. Umar Hayat and four others claiming a declaration that the Shamlat of the (village) Shahwala was liable to be partitioned in accordance with Zir-e Khewat and Zir-e-Tirni of 1891-92 Settlement. The suit was defended by Allah Yar and Muhammad Yar etc. predecessors-in- interest of the petitioners. This suit was dismissed by the learned Civil Judge on 5-11-1964.
Aggrieved by this order the respondents filed an appeal which was accepted by the Additional District Judge vide his order dated 5-11-1964 with the following findings:-- "Therefore, the measure of partition shall be the one which is found in the copy Exh.P.14 of Shart Wajib-ul-Arz based on the settlement of the year 1891-92. With this finding, I accept the appeal, set aside the judgment and decree of the Court below and decree the suit of plaintiffs/appellants as prayed for."
' This order was challenged by the predecessors-in-interest of the petitioners in second appeal in the High Court which was dismissed on 27-6-1975 with the following findings:-- "The learned Additional District Judge was therefore, perfectly justified in holding that the entries in Shart Wajib-ul-Arz of 1891-92 did furnish the only proper basis for the partition of Shamlat."
4. Against this judgment, an appeal was filed in the Supreme Court by the predecessors-in-interest of the petitioners which was dismissed on 5-7-1983 which gave the following findings:-- "Therefore, the measure of partition shall be the one which is found in Shart Wajib-ul-Arz of the Settlement of 1891-92."
5. The review petition was then filed against the judgment of Honourable Supreme Court dated 5- 7-1983, but the same was dismissed on 7-12-1983. Thus, the order of the Additional District Judge was upheld up to the Supreme Court. After this first round of litigation, the Additional District Judge in the light of his order dated 5-11-1964 issued the decree on 12-10-1967.
6. This decree dated 12-10-1967 was challenged by the predecessors-in interest of the petitioners on the ground that the same was not according to the order, dated 5-11-1964 and the verdict of the High Court and Supreme Court on this issue. This application was rejected by the Additional Judge on 23-1-1985. Aggrieved by this order the predecessors-in-interest of the petitioners went in appeal to the High Court as a result of which the appeal was remanded to the Additional District Judge vide order dated 19-5-1986. Thereupon the respondents challenged the remand order of the High Court in the Supreme Court with the result that the Supreme Court vide order, dated 16-12-1986 quashed the remand order of the High Court. The net result of these two rounds of civil litigation between the parties was that the decree passed by the Additional District Judge dated 12-10-1967 was maintained.
7. Accordingly, the consolidation proceedings which were kept in abeyance, were started and the Consolidation Scheme of the village was confirmed on 30-12-1987, which as mentioned above was challenged by the petitioners before the Additional Deputy Commissioner (Consolidation) and Additional Commissioner (Consolidation) but without success. Hence the present revision.
8. I have heard the counsel for the parties at length. Relevant record produced by the Patwari has also been examined.
9. It has been contended by the learned counsel for the petitioners that the Consolidation Authorities have misconstrued and misunderstood the decree of the Additional District and Sessions Judge and the findings of the Civil Court given on it. While partitioning Shamlat land, the Consolidation Authorities were required to partition the same in accordance with the Shart Wajib- ul-Arz 1891-92 settlement and not in the Misal-e-Haqiat of 1891-92. Without properly appreciating the implications of the findings of the Supreme Court, it was pointed out, the Consolidation Authorities wrongly partitioned Shamlat according to the Misal-e-Haqiat of 1891-92. As a result of this action a large number of rightholders including the petitioners have been deprived of their valuable rights and their entitlements have been reduced without justification. It was contended that all the Civil Courts up to Honourable Supreme Court had clearly held that the measure of partition will be the Shart Wajib-ul-Arz (Exh.P.14) of 1891-92 Settlement. The civil suit of the respondents wherein a declaration had been sought for holding that measure of partition will be Misal-e-Haqiat of 1891-92 had not been specifically granted. Thus, it could be validly presumed that Misal-e-Haqiat of 1891-92 could not be the measure of partition of Shamlat. However the Consolidation Authorities acted totally against the findings of the High Court by holding Misal-e- Haqiat of 1891-92 as the measure of partition. The learned counsel for the petitioners further elaborated that in fact the entries in Misal-e-Haqiat of 1891-92 reflected the maturity of Shart- Wajib-ul-Arz (Exh.P.10) of the Settlement of 1865 as laid down in paragraphs 295-296 of the Settlement Manual. Therefore, adopting the figures recorded in 1891-92 Misal-e-Haqiat amounted to partitioning the Shamlat land in accordance with Shart Wajib-ul-Arz of 1865 which was obviously in violation of orders of all the Civil Courts. It was pointed out that the Shart Wajib-ul-Arz of 1891-92 was recorded on 28-2-1893 and this Shart Wajib-ul-Arz is valid and operative till the next settlement i.e. 1913-14. Accordingly, the revenue levied under this Shart Wajib-ul-Arz was reflected in the Misal-e-Haqiat of 1913-14. It was, therefore, obligatory for the Consolidation Authorities to adopt the Zare-e-Khewat and Zar-e-Tirni recorded in the said Misal-e-Haqiat of 1913-14 as a measure of the partitioning of the Shamlat which had changed from a total revenue demand for the estate from Rs,250 to Rs,400. My attention was also drawn to the fact that Misal-e Haqiat of 1891-92 contained a note that the new revenue will start from Rabi 1893. In the light of this note, the revenue recorded in 1891-92 Misal-e-Haqiat is not based on Shart Wajib-ul-Arz of 1891-92 and thus it was wrong to adopt it as a measure of partition. This step of the Consolidation Authorities had deprived a large number of right holders i.e. the petitioners who were paying the land revenue since 1865 on Lagan. In this context, it was further pointed out that Shart Wajib-ul-Arz of 1865 had provided that whosoever brings Shamlat under cultivation will have to pay 4 Annas per acre on Moth and Bajra and will be considered owner of the said land. If the measure of partition is based on Misal-e- Haqiat 1891-92, then all those who had been paying revenue under 1891-92 Shart Wajib-ul-Arz and had become owners on account of reclamation of the Shamlat, would he totally denied of any share in the partitioning of the Shamlat.
10. The Consolidation Scheme of the village was also stated to suffer from other serious drawbacks.
It was contended by the counsel of the petitioners that there were representations and written objections with regard to 33 consolidation schemes. Thus, the Scheme which was said to have been confirmed under section 10(3) of the said Ordinance was not based on the total and complete consent of the rightholders and was therefore, liable to be set aside. A number of other irregularities with regard to the wrong demarcation of the boundary of the village and inclusion of this area of village Shahwala in Rakh Shahwala and Rakh Mahmood Shaheed were also pointed out by the counsel for the petitioners. It was also stated that the Consolidation Staff instead of including the area within 200 Karams of the outer boundaries of Abadi Deh determined this area from the centre of the Abadi, for distribution according to the ownership. This action was obviously in violation of Musawada Scheme. In view of this, the impugned order was liable to be set aside. It was prayed that Zar-e-Tirni now claimed was Rs,87 and 14 Annas as per list of the Tirni attached to Misal-e-Haqiat of 1913-14 which reflected the maturity of the Shart Wajib-ul-Arz 1891-92 Settlement.
This must be made the measure for the partitioning of the Shamlat.
11. These contentions were refuted by the counsel for the respondents according to whom there is absolutely no misconception or misunderstanding on the part of the Consolidation Authorities while partitioning the Shamlat land. This has been done strictly according to the findings of the Civil Courts including the Honourable Supreme Court. It was urged that a plain reading of these findings clearly leads to the conclusion that Shamlat was to be partitioned according to the settlement of 1891-92 and in fact this measure was adopted by the Consolidation Officer while confirming the consolidation scheme vide order dated 30-12-1987. Aggrieved by this, the petitioners filed as many as 9 civil suits on the same point with a prayer that they were entitled to a share in the Shamlat land in accordance with Misal-e-Haqiat of 1913-14. As there was no substance in the suits, therefore, these were dismissed for non-prosecution. Having not been satisfied with this, the petitioners applied to the Board of Revenue whereupon a report was called for from the Commissioner on 10-1-1989. After considering this report of the Commissioner, the application was filed as having been found without substance. The appeal and revision of the petitioners against the consolidation scheme of the village were also rejected by the Additional Deputy Commissioner (Cons.) and Additional Commissioner (Cons.) vide orders dated 23-11-1988 and 22-9-1990 respectively. In view of the unanimous findings of various Civil Courts up to Supreme Court, and concurrent findings of the Additional Deputy Commissioner (Consolidation) and Additional Commissioner (Cons.) the contentions of the petitioners have been found baseless and without any substance. In view of these facts, the learned counsel for the respondents urged that the present revision being without merit and substance is liable to be dismissed.
12. Having given careful consideration to the arguments of the counsel of the parties and the record of the case, one thing is certain, that the measure of partition for the Shamlat land is to be the Shart Wajib-ul-Arz of 1891-92 Settlement. In order to fully appreciate the issue involved, it would be relevant to reproduce the findings of the Honourable Supreme Court dated 5-7-1983 once again which is to the following effect:-- "That the measure of partition shall be the one which is found in Shart Wajib-ul-Arz of the settlement of 1891-92."
13. Could the above findings be construed to refer to the Misal-e-Haqiat of 1913-14 to be adopted as measure for partitioning. According to the contentions of the learned counsel for the petitioners, the Shart Wajib-ul-Arz of 1891-92 was to be operative till next settlement and the revenue levied under this Shart Wajib-ul-Arz was to be the basis or the measure for the partitioning of the Shamlat. I am afraid that this is neither the intention nor such a meaning can be put on this finding.
By doing so, land revenue which was being claimed according to the Misal-e-Haqiat of 1913-14 for this revenue estate will have to be taken which had arisen from Rs,250 of the Misal-e-Haqiat of 1891-92 to Rs,400 by then. This had happened on account of the influx of large number of new comers who got added to the list of revenue payers on ground of reclamation of barren land. Such a step would not be compatible with the unanimous findings of the various Civil Courts including the Supreme Court. In coming to this conclusion, I am further supported by the observations recorded by the High Court in its order dated 27-6-1975 while dismissing the appeal of the predecessors-in-interest of the petitioners. After tracing out the history of Shamlat land in Tehsil Khushab, it was concluded by the High Court that so far as Shamlat land was concerned, it was not lying an unclaimed agricultural land. The rightholders even as far back as 1865 were asserting their ownership and were extremely jealous to safegaurd their entitlements against the new intruders who were settling in the revenue estate and were making a claim for reclamation of land and thus claiming their title on the basis of payment of land revenue for these freshly reclaimed lands. In order to preclude all such new comers from a share in the Shamlat, the original rightholders specifically agreed to safeguard their rights in the Shamlat land in respect of this village. The first settlement in the village took place in 1865 and a copy of Shart Wajib-ul-Arz prepared on the occasion is Exh.P.10 wherein the following principle was laid down with regard to the Shamlat:-- {{URDU TEXT}} ' With the above condition included in the Shart Wajib-ul-Arz, it is clear that the original rightholders had taken sufficient precaution to protect their rights and entitlements in the Shamlat land thereby clearly debarring the new comers to make any claim on the basis of occupation. The position regarding the eligibility or otherwise of making any claim abundantly becomes clear from the elaboration of this point in the said order of the High Court which runs as under:-- {{URDU TEXT}} "It was thus not a case where the Shamlat land was lying unclaimed so that any stranger who entered the village after 1865 could lay a claim to it on the basis of his occupation. The second Settlement as already mentioned, took place in 1891-92. Here again, an assertion was made by the agriculturists and Tirniguzaran that the Shamlat land belonged to them.
' This declaration clearly precluded the possibility of any one who did not derive his rights from the original proprietors and Tirniguzaran from becoming a sharer in the Shamlat land."
14. The above elaboration, therefore, leaves no doubt with regard to the rightholders who could be entitled to have a share in the Shamlat land. In this very context, it was further observed by the learned Judge:-- "Had the intention been to admit to a share in the Shamlat land those persons who did not draw their rights from the original proprietors and Tirniguzaran, but settled in the village after the second settlement of 1891-92 the Shart Wajib-ul-Arz prepared at the settlement of 1913-14 would have contained a clear statement to that effect. As already stated the entire Shamlat land had already been claimed by the original proprietors and the Tirniguzaran as their property; thus there was no question of any outsider's coming and taking it over as unclaimed property. I should therefore, think that on a proper interpretation of the Shart Wajib-ul-Arz of 1913-14 the new comers who settled in the village after the second settlement 1891-92 were not entitled to share in the Shamlat land."
15. Otherwise too, it is a matter of common experience that agriculturists in.Funjab are jealously conscious of their valuable rights in their lands and have taken sufficient safeguards for the protection of those rights as provided in various Shart Wajib-ul-Arz of revenue estates, be it with regard to Shamlat land, sources of irrigation, use of common path, or rights in the land reserved for common utility purposes. It is not only far-fetched but otherwise inconceivable that at the time of first settlement which took place in 1865, the rightholders would have left any lacuna or deficiency in claiming their entitlements in the Shamlat land or leaving it open for subsequent new corners who did not derive their rights from the original rightholders. The principle laid down for the partitioning of Shamlat land in the Shart Wajib-ul-Arz of 1865 (Exh.P.10) which was repeated in the Shart Wajib-ul-Arz 1891-92, was rightly adopted as the measure of partitioning by the Consolidation Authorities while confirming the consolidation scheme of Shahwala. There is absolutely no possibility of any misunderstanding on this point. The wording of learned Additional District Judge in his decree dated 12-10-1967 also makes this point abundantly clear wherein the suit of the plaintiff/appellant was decreed "as prayed for. As such the observation of the Honourable Supreme Court while dismissing appeal of the predecessors-in-interest of the petitioners on 5-7-1983, that the measure of the partition is to be the Shart Wajib-ul-Arz of Settlement 1891-92, obviously meant the Jamabandi which was in vogue at that time and not the one which was to be prepared after this second settlement and matured in 1913-14.
16. As regards the violation of section 10(3) of the Consolidation of Holdings Ordinance, 1960 for having ignored 33 written objections of the land owners, it has to be understood that before the final confirmation of a scheme, such objections and written representations are duly considered and disposed of. In case these are rejected or turned down on frivolous grounds, the parties have always a legal remedy available to them. Otherwise too, it can be easily claimed by any rightholder that his objection, right or wrong, though disposed of under the rules, is still an objection and it should be deemed to be pending, and therefore, the consolidation scheme is not entitled to be confirmed under section 10(3) of the said Ordinance. The contention of the learned counsel for the petitioners on this point has not been substantiated, as apart from the present revision no other appeals were filed by the rightholders in the Courts below.
17. As to the alleged demarcation of the area of 200 Karams from the centre of the Abadi Deh instead of the outer boundary of Abadi Deh, or inclusion of some area of Shahwala in other revenue estates, such errors, if so, against the Musawada Scheme can be rectified through appeal/revision.
18. From the perusal of the impugned order, I find that in the Settlement Record of 1891-92 total amount of Zar-e-Khewat and Zar-e-Tirni has been recorded as Rs, 250 which has been split up Zar-e-Tirni as Rs,165 and Zar-e-Khewat as Rs,
85. While distributing Zare-e-Khewat on Rs,85 the Consolidation Officer has not taken column 12 of Misal-e-Haqiat of 1891-92 into consideration but columns Nos. 8 and 9 in order to distribute the shortage of Rs, 5, 2 Annas and 3-1/2/8 pies which has been done on prorata basis. This course had to be adopted as Jamabandi of 1983 was not available and it appeared to be the best alternative under the circumstances.
19. In view of the above discussion, I find that that the petitioners have failed to make out any case. I do not find any merit and substance in this revision which is hereby dismissed.