HAFEEZULLAH ISHAQ, MEMBER.- Brief facts of the case are that land in dispute measuring I00 kanals 1 maria situated in Chak No. 499/EB, Tehsil Burewala, District Vehari was allotted to Burhan-ud-Din son of Qasim Ali (father of the petitioner and respondents) under the Co-operative Farming Scheme. Burhan-ud-Din allottee died in the year 1957 and Muhammad Din petitioner occupied the land/and became member of the Cooperative Society. Shams-ud- Din respondent submitted an application before the Commissioner, Multan Division, requesting that the inheritance mutation of the deceased may be sanctioned. The Commissioner, Multan Division directed that the case should be decided according to the instructions contained in Board of Revenue's Memo: No. 6366- 84/3089-CL-II, dated 18.11.1984. The petitioner who had been declared eligible to get proprietary rights by the Collector vide order dated 11.6.1969, submitted an application for the execution of conveyance deed in his favour and on recommendation of the Chak Society, DC/Collector vide his order dated 15.6.1987 allowed allotment order subject to payment of penalty of Rs. 500/-.
Subsequently after getting permission for review from the Commissioner, the parties were summoned by the DC/Collector, Vehari, who after hearing them ordered that the inheritance mutation of Burhan-ud-Din (deceased) allottee should be attested in favour of all the legal heirs vide his order dated 22.1.1990. Aggrieved of the above said order the petitioner went in appeal before the Additional Commissioner (Revenue), Multan division, Multan who vide impugned order dated 17.6.1990 dismissed the appeal, hence this revision petition under Section 164 of the West Pakistan Land Revenue Act, 1967 read with Section 7 of the Colonization of Government Lands (Punjab) Act, 1912, against the order of DC/Collector, Vehari dated 22.1.1990 and Additional Commissioner (Revenue), Multan Division dated 17.6.1990.
2. The learned counsel for the petitioner contended that Burhan-ud-Din, father of the parties, was a refugee from India who migrated to Pakistan after Independence. Cooperative Societies were formed to accommodate the refugees with agricultural background on State land are Burhan-ud- Din was allotted approximately 100 kanals of land under Cooperative Farming Scheme in chek No. 499/EB. Against his evacuee claim, he was allotted 8 acres in Lodhran where he shifted abandoning the tenancy of land in dispute and he died in 1957. The petitioner has been cultivating the land in dispute all along which was barren and he brought it under cultivation with hard labour.
Since the land in dispute had become available it was allotted to the petitioner on temporary scheme. He became member of the Society and in due course the disputed land was allotted to him in his own right being tenant under the Cooperative Farming Society. As Burhan-ud-Din was owner of more than 4 acres and had also left the tenancy he was not eligible for allotment of this land under the instructions. The petitioner fulfilled all the conditions of the Notification issued in 1961 for grant of proprietary rights. He was held eligible for grant of proprietary rights and had paid to the Government total sale price and only formal sale deed remains to be issued. Shams-ud-Din respondent No.1 moved an application after 33 years that the land in dispute should be divided according to Shariat Law. The Deputy Commissioner/Collector therefore reviewed his order with the permission of the Commissioner and ordered to sanction mutation in favour of all the heirs of Burhan-ud-Din vide order dated 22.1.1990. The petitioner's appeal was dismissed by the Additional Commissioner (Revenue), Multan vide order dated 17.6.1990. The orders of the learned District Collector and the Additional Commissioner (Revenue) were illegal, void and against the instructions issued by the Government. Both the lower courts have ignored the fact that the land in dispute after being available was allotted to the petitioner as a sub-tenant of the Society on 22.5.1957 and he was duly made member of the Society, Since Burhan-ud-Din deceased was owner of more than 4 acres of land he could not have become allottee under the Cooperative Farming Society Scheme, the temporary allottee is considered to be an allottee of scheduled tenancy under section 4 of the Colony Act, 1912 and such tenancies are never heritable under section 27 of the Act. Ibid- Shariat Act was made applicable to such tenancies After 1977 and Shariat Act of 1962 did not have retrospective affect. Mohammad Din was not nominee of his father but an allottee in his own right. The learned counsel submitted that PLP 1974 SC 185 and 1987 SCMR 1395 on which the lower courts had relied were not applicable to the facts of this case. According to PLD 1956 Lahore 94 and 600, conveyance deed is a mere formality after payment of price of land.
The petitioner has been in possession of the land through out. The learned counsel cited precedent case ROR No. 2142/1987, Ghulam Muhammad S/O Walia Vs. Muhammad S/O Noora, decided by Member (Colonies), Board of Revenue on 6.7.1989 in which case Shariat Law was not applied and it was held inter-alia that the land had become available for allotment after the death of the original allottee. It was prayed that the revision petition may be accepted and the orders of the courts below set aside.
3. The learned counsel for the respondent contended that Burhan-ud- Din was a member of the Society and Muhammad Pin was his nominee. According to Register Memberan (Membership Register of the Cooperative Society) the resolution of the Managing Committee of the Cooperative Society dated 22.5.1957 clearly shows that he was recommended for allotment of the land in dispute in place of his deceased father. The Society's register "Taqsim Arazi" supports the same fact. Muhammad Din became member 31/20 in place of his lather, the learned counsel placed reliance on PLP 1974 SC ISS and Civil Appeal No. 139/1987 Mst. Aisha and others Vs. MBR (Colonies) etc. Decided by the Supreme Court on 21.11.1990 and posed the question whether the nomination can over-ride the Shariat Law?. According to him the Shariat Law was supreme and hence the revision was liable to dismissal.
4. I have considered the arguments and perused the case record carefully. The record maintained by the Cooperative Society shows that Muhammad Din was nominee of Burhan-ud-Din. According to Membership register he was made member of the Society vide resolution of the Committee dated 22.5.1957 in place of his father. According to Register Taqsim Arazi Muhammad Din became member after the death of his father. A perusal of khasra girdawari shows that even after Muhammad Din became a member of the Society, the respondent No.1, Shams-ud-Din had been cultivating Khasra Nos. 14/3, 1,8,9,10,12 and 13 etc., in 1959 and even upto Rabi 1963. Thus the contention of the learned counsel for the petitioner that Muhammad Din was a member of the Society independently after the death of his father Burhan-ud-Din and had toiled very hard to develop the land falls to the ground. In the precedent case cited by the learned counsel for the petitioner (ROR No. 2142/1987, decided by Member (Colonies), Board of Revenue on 6.7.1987) the facts were different in which it was held that allotment to the nominee was made independently after the land had become available on the death of the original allottee and that the son had no connection with the disputed land after the death of his father whose allotment was extinguished after his death in 1952. Section 19-A of the Colonization of Government Lands Act is applicable to this case and not section 4 ibid as contended by the learned counsel for the petitioner. The petitioner cannot invoke the ineligibility of his father for allotment of the subject land as the latter was owner of more than 4 acres, because he never brought this fact to the notice of relevant authorities at the the when his father had allegedly abandoned the tenancy. On the other hand, the revenue record shows that the petitioner and respondent No.1 had been jointly cultivating the land in dispute several years after the death of their father. Thus there is no illegality or irregularity in the concurrent findings of both the courts below, the revision petition is devoid of force and is accordingly dismissed. However, there will be no order as to costs in this case.
5. The order in this case was reserved which shall now be communicated to the parties.