Revision petition before the Board of Revenue against an order of the Land Commissioner, Bahawalpur Division, upholding the District Land Commissioner's decision to include 33 acres 7 kanals 16 marlas of land in the petitioner's holding for purposes of the West Pakistan Land Reforms Regulation (M.L.R. 115). The petitioner contended that a private partition in 1945 had allocated the disputed land to his brothers, who had since been in possession and paying land revenue, and that a subsequent civil court consent decree dated 3 May 1972 confirmed their ownership. The core legal question was whether land transferred by a consent decree passed after the determining date of 20 December 1971 could be excluded from the declarant's holding, and whether post-determining-date loss of land affected the obligation to surrender surplus area. The Board dismissed the revision, holding that under M.L.R. 115 the determining date for ownership and possession is 20 December 1971; any consent decree or loss of land subsequent to that date cannot override the Regulation's provisions or affect the surplus land to be surrendered. The key principle laid down is that both ownership and possession as they stood on the determining date govern the calculation of a declarant's holding and any surplus liability under M.L.R. 115.
' This is an appeal which may be treated as a Revision from the order dated 5-7-1972, passed by the Land Commissioner, Bahawalpur Division, whereby he rejected the petitioner's appeal against inclusion in his holding of 33A-7K-16M of land situated in village Mianwali Sheikhan, Tehsil and District Rahimyar Khan.
' The alleged facts of the case are that the petitioner was affected by M.L.R. 115 and he tiled declarations which were scrutinised by the D.L.C. Rahimyar Khan who by his order dated 28-5-1972 treated 33A-7K-16M of land in Khewat No, 6 of village Mianwali Sheikhan as part of the holding of the petitioner in view of his share of ownership in his Khata. The petitioner appealed to the Land Commissioner and took the plea that there had been a private partition in the year 1945 under which the disputed land fell in the share of his brothers Abdul Samad and Abdul Razzaq who had been in possession of it since then and paying the land revenue. Moreover Abdul Samad etc. Had filed a civil suit against the petitioner and had obtained a civil decree in their favour on 3-f-1972 under which 181K-11M of land was declared as the property of the decree-holders. The Land Commissioner by his order dated 5-7-1972 did not accept this plea and rejected the appeal on the ground that the petitioner was in possession of 1049K-6M of land as against 460K-15M which was his share after 20-12-1972 and was hit by paragraph 7(1) (a) of M.L.R.
115. Hence this revision.
3. The case was referred by me to the Legal Adviser who has submitted his report dated 28-9-1972 which I have seen.
4. I have heard the learned counsel for the petitioner and have also seen the order of the DLC dated 28-5-1971 and that of L.C. Dated 6-7-72.
5. According to the order of L.C. The appellant objected to the inclusion of 33A-7K-16M of land in Khewat No, 6 of Register Haqdaran Zamin for the year 1969-70 in respect of village Mianwali Sheikhan. The contention of the petitioner is that this area was in possession of his brothers Abdul Samad and Abdul Razzaq and was confirmed by the decree of civil Court dated 3-5-1972.
According to the records this was a consent decree against the appellant, Abdul Qadir.
6. An interesting feature of possession in this case is that according to the ownership rights, the share of the appellant in this Khewat comes to 460K-15M while his actual possession in this Khewat is 1,049 kanals and 16 marlas which shows that his possession is 588 kanals and 11 marlas, more than his entitlement on the basis of his share of ownership. This would show that in the case of the appellant and the brothers, the possession does not follow the recorded ownership but apparently is divergent from their shares. But so far as the land reforms regulations are concerned in respect of the aspect as to how much area would be surrendered by the declarant, it is the total holding of the ownership of the declarant, that has to be determined. Any area in addition to ownership that a declarant may have under his possession either, legitimate or adverse, has then also to be taken into account. In this case, the total ownership of the declarant in all the villages has been worked out by the DLC to be 477 acres, 1 kanal and 12 marlas of land (reference paragraph 5 of DLC's order dated 28-5-72). The question to be determined, therefore, is whether the additional area of 33 acres, 7 kanals and 16 marlas, under dispute, is to be treated as ownership of the appellant or his brothers.
7. Mr. Abdus Samad one of the brothers who is present and has been heard, also contends that the two brothers namely Abdus Samad and Abdur Razzaq are in possession of the area in question since 1945.
8. I have given thought to all the arguments and facts adduced by the learned counsel for the petitioner and by Abdul Samad, the affected brother. As would be clear from the above narration of facts there is a lot of confusion and discrepancy between ownership and possession in the case of the three brothers concerned, namely Abdul Qadir, Abdus Samad and Abdur Razzaq. According to the entry against Khewat No, 6 in the Register Haqdaran Zamin, for 1969-70 in this village, the share of Abdul Qadir comes to 7019250/66009600 and his entitlement of the area according to his share comes 182K-16M but the area actually in his possession comes to 181K-10M. According to the provisions of MLR 115 a person has to submit declarations in respect of the area either owned or possessed by him or both. Similarly, g vide paragraph 8 of MLR 115 a person is not allowed to own or in any capa city possess land in excess of the ceiling prescribed therein. M.L.R. 115 thus takes into account not only the ownership but also possession of the area. In this case if the appellant is anxious to refute the ownership of 33 acres 7 kanals 16 marlas, he will have to account for the possession of the excess area of 588 kanals and 11 marlas. The consent decree dated 3-5-72 whereby the ownership of the disputed area of 33A-7 kanals 16 marlas was passed on to the two brothers Abdus Samad and Abdur Razzaq was passed on or after 20-12-1972. It cannot, as has been rightly held by the L.C., override the C provisions of MLR 115 and be taken into account for depriving the ownership of the appellant. The learned counsel for the petitioner has further pointed that since filing the declaration an ex parte decree has also been passed against the petitioner in civil case filed by his wife whereby he is going to lose about 100 acres of land and therefore even if these 34 acres (Approximate) are accounted for as his share, his holding would fall below the ceiling prescribed in para. 8 of M.L.R. 115 after taking into account the reduction of 100 acres on account of the ex parte decree. Here again, the provisions of MLR 115 are very clear.
' The determining date for the ownership or possession is 20-12-1971 and any person owning or possessing on 20-12-1971 an area exceeding the permissible ceiling will have to surrender the surplus land. If at any tim subsequent to 20-12-71 he loses any of the land on account of any factor 9 that will not affect the surplus for purposes of surrender under para. 13 o M.L.R.
…and 113 more citing cases