ORDER.
Aggrieved by the order dated 29-6-1992 of the Additional Commissioner (Consolidation), Bahawalpur Division, Bahawalpur, whereby he dismissed the revision of the petitioners thereby maintaining the order of the Collector (Consolidation), Bahawalnagar, dated 13-11-1991, this revision petition under section 13 of the Consolidation of Holdings Ordinance, 1960 was preferred with a prayer for setting aside both the impugned orders and the concurrent findings of the two lower Courts.
2. Briefly, the Consolidation Scheme of Mauza Habibka, Tehsil Minchinabad, District Bahawalnagar was confirmed under section 10(3) of the said Ordinance by the Consolidation Officer on 25-9- 1982. This was challenged -in a time-barred appeal by the petitioners before the Collector (Consolidation) who by his order dated 13-11-1991 dismissed it. The petitioner in his appeal had claimed his prepossessed land in Rectangle No. 271/7-Killa No. 17(4k-6m) in lieu of Killa No. 13 in Rectangle No. 271/6 (4k-0m) which was stated to be owned and prepossessed by th8 respondents and wag included in his Wanda without any justification. His revision before the Additional Commissioner (Consolidation) met the same fate. Hence the present revision petition.
3. Counsels of the parties were heard at length. Relevant record and sketch map explaining the pre and post-Consolidation position produced by Iqbal Ahmad Ghauri, Naib-Kanungo Office, Minchinabad were also examined.
4. Arguing on behalf of the petitioners, it was pointed out by their counsel that there was absolutely no justification or valid ground for allocating the pre-owned and prepossessed land of the petitioner in Rectangle No. 271/7 Killa No. 17 (4k-6m) as it contained their residential houses and cattlesheds. In support of this contention, my attention was drawn to the entries in Register Khasra Girdawri placed on the file which indicated the possessions of the petitioners from Rabi 19$2. The fact that the petitioners were utilizing the impugned land for the residential purpose, was further established by the report of the Halqa Patwari, dated 21-8-1992 which was made on the application submitted by the petitioners to the Tehsildar. My attention was also drawn to the photographs P.I, P.II, P.111 showing the structure of residential houses and cattlesheds which were verified by Muhammad Yousaf, Lambardar, Ghulam Muhammad, Vice-Chairman, Union Council and other respectables of the village as being residential houses and cattlesheds of the petitioners on the impugned land. It was therefore, contended that in view of this overwhelming evidence there was no valid ground to allocate the above prepossessed land of the petitioner to the respondents. It was unjustified to allocate the land of the respondents in Rectangle No. 271/6, Killa No. 13 which according to the entries in Register Khasra Girdawari (copy placed on the file) was clearly stated under the ownership and possession of the respondents from Kharif 1989 onward.
5. Mutations No. 478, dated 10-8-1971 and No. 521, dated 12-2-1979 were also placed on record by the petitioners, for establishing their preferential right over the impugned land on the ground that Killa No. 17, Rectangle No.271/7 had been purchased by them. It was, therefore, argued that as the impugned land had been allocated to the respondents unlawfully and unjustly therefore, the acceptance of their scheme by the petitioners being unjust and offensive to the principle of Consolidation was liable to be rejected. Reliance was placed on PLD 1987 Supreme Court 16 wherein it was held that a Consolidation scheme which is offensive to the requirement of law and prima facie appears to be unjust and unfair' must be rejected by the Consolidation authorities. On this ground, the learned counsel for the petitioner further pointed out that the basic order confirming the Wanda of the petitioners being illegal and void was a sufficient ground in itself for condoning the delay, as no limitation could run against an illegal and void order.
6. All these contentions have been refuted and controverted0 with equal force by the learned counsel for the respondents. It was argued that the Wanda No. 9 of the petitioners was prepared with their consent and it was duly accepted by them. It was also pointed out that the earlier Girdawari entries of the impugned land were in favour of the respondents, but these were subsequently changed from 1988 onward in connivance with the Revenue authorities. Accordingly application had been moved by the respondents for its correction. It was further pointed out that the petitioners were legally not competent 'to challenge a consent order which was hopelessly time-barred by over six years and one month. It was rightly held by the Collector (Consolidation) that the Wanda of the petitioners was fully in their knowledge which had been a subject of litigation between one Ahmad Yar and the petitioners. It was pointed out that the petitioners had purchased a part of impugned land from Killa No. 17 of Rectangle No. 271/7 to the extent of 2k--lm by a registered deed, dated 2-12-1978 from one Falk Sher. It was reclaimed by one Ahmad Yar through pre-emption suit which was decided en 10-7-1982. In implementation of this pre-emption decree, Ahmad Yar obtained a warrant of possession which was resisted by the petitioners. As the impugned land during Consolidation proceedings had been included in the Wanda of the respondents, therefore, the petitioners in their written reply to the contempt of Court's proceedings which were initiated against them by aforesaid Ahmad Yar clearly admitted that they had handed over the possession of the impugned land to the respondents as it was included in their Wanda No. 74 on 8-9-1982. It was, therefore, argued that in the face of this documentary evidence, the petitioners were legally defined from making any claim for its restoration. In addition to this, aforesaid Ahmad Yar challenged Wanda No. 74 of the respondents before the Collector (Consolidation) wherein the petitioners were also impleaded as respondents. This appeal was dismissed by the Collector . (Consolidation) on 25-10-1987 which was duly defended by the petitioners alongwith respondents. Subsequently, the revision of Ahmad Yar before the Additional Commissioner (Consolidation) was also disposed of on the ground of having been withdrawn by a subsequent order. As the impugned land had been kept in the Wanda of the respondents even as a result of the revision filed by aforesaid Ahmad Yar by the order of the Additional Commissioner (Consolidation), therefore, now the petitioners were legally incompetent to challenge it in a separate appeal before the Collector (Consolidation) which was hopelessly time-barred by over six years. It was, therefore, emphasised by the counsel for the respondents that the present revision petition being legally unsustainable should be dismissed.
7. Having given careful consideration to the contentions raised by the counsels of the respective parties and the facts of the case, it is obvious that the petitioners have claimed their preferential right for the allocation of impugned land on the basis of ownership and possession. Their contention both before the Collector (Consolidation) and the Additional Commissioner (Consolidation) was based on the ground that the impugned land was a part of Khatas Nos. 3 and 9 in which the respondents were not at all co-sharers. This contention fords support from Mutation No. 478, dated 10-8-1971 which the petitioner have been shown to have purchased a share equivalent to 3/1-2/240 measuring 2k-6m from Khata No. 3 from one Muhammad son of Alia.
Subsequently they further purchased a share equivalent to 41/641 from Khata No. 9 measuring 2k- lm from one Falk Sher vide Mutation No. 521, dated 12-2-1979. The entries of these mutations were duly incorporated in the relevant Jamabandis which were prepared subsequent to the aforesaid transactions. Under the circumstances it can be safely concluded that the petitioners were co- shares in the aforesaid Khatas Nos. 3 and 9 at the time of Consolidation proceedings. It was not permissible for the Consolidation authorities to go beyond the entries in the Jamabandi Zer-e-kar which were in favour of the petitioners and allocate the impugned land to the respondents.
Undoubtedly the imugned land was included in the Wanda of the respondents No. 74 on 8-9-1982, but the ground or justification entitling the respondents for inclusion in their Wanda on the basis of superior right is not at all forthcoming or available from the record. It is not understood that under what circumstances and on what specific ground this was allocated to the respondents in lieu of their land in Rectangle No. 271/6 Killa No. 13 which according to the entries in Register Khasra Girdawari was clearly shown as owned and prepossessed by the respondents. This land of the respondents therefore, could not be allocated to the petitioners when it has been found in their physical possession even in Kharif 1989 onward. Moreover, the copies of the Register Girdawari Exhs.
PD, PE, PF and PG make an interesting reading. All along the entire impugned land in Killa No. 17 has been shown as "L v-G~' " (4k-0) except an area of 6 Marlas only. It is reasonable to conclude that the structure shown in the photographs P.1, P.2 and P.3 are really the residential houses and cattlesheds of the petitioners as verified by the respectables at the back of these photographs.
Furthermore, this conclusion is further strengthened by the spot inspection report of the Patwari, dated 21-8-1992 which has been further verified by a number of respectables including Lumbardar and Vice-Chairman of the Union Council. It has been totally overlooked by the Consolidation authorities and the lower Courts that the impugned land had changed its character and it was no longer agricultural in nature. Under normal Rules, this land should not have been subjected to 8 Consolidation proceedings and instead it was liable to be allocated to the owners in occupation of these structures.
8. Undoubtedly, one Ahmad Yar had claimed a part of the impugned and by filing a pre-emption suit which had been purchased by the petitioners from one Falk Sher, but he failed to obtain its possession despite a possession warrant which was obtained by him from the Civil Court. This is clearly understandable, because the subject deal of the petitioners with Falk Sher related to the purchase of a share equivalent to 41/641 from Khata No. 9 and not any specific Khasra number. It was primarily for this very reason that the appeal and the revision filed by aforesaid Ahmad Yar before the Collector (Consolidation) and the Additional Commissioner (Consolidation) were dismissed. The fate of this appeal and revision of aforesaid Ahmad Yar was a foregone conclusion, because no specific Khasra number had been indicated to have been purchased by the petitioners from Falk Sher in the Mutation No. 521 sanctioned on 17-2-1979. The inclusion of the impugned land in Wanda No. 74 of the respondents on 8-9-1982 in the light of these facts was required to be justified on the basis of preferential right or superior claims. This was possible only, provided the respondents were co-shares in the Khatas Nos. 3 and 9 in the particular Jamabandi Zer-e-kar which was the basis for the presedt Consolidation proceedings.
9. In view of the above discussion, I am led to conclude that the allocation of the prepossessed land of the respondents in Rectangle Ne. 271/6 Killa No. 13 to the Wanda of the petitioner No. 9 was unjustified and unfair. It was, therefore, offensive to the Consolidation proceedings. This allocation by the Consolidation Officer on 25-9-1982 being void, is therefore not sustainable. The same, is, accordingly set aside with the result that subsequent orders of the Collector (Consolidation), dated 13-11-1991 and that of the Additional Commissioner (Consolidation), dated 19-6-1992 are now a nullity in the eye of law. This being so, no limitation would run against an illegal and void order.
Although the petitioners have better claim for the allocation of the impugned land on the ground of its utilisation for residential purposes, but the factum of ownership and title requires to be established beyond doubt. Accordingly by accepting this revision, the case is remanded to the Collector (Consolidation), Bahawalnagar with the direction to examine the entries in Khatas Nos. 3 and 9 of Jamabandi Zer-e-Kar to as certain whether the respondents are recorded as C owners or co-shares as against the claim and evidence produced in the form of two mutations by the petitioners on this very basis. He should then dispose of the case accordingly after giving an opportunity of hearing to both the parties. In case the respondents are found. as owners or co- sharers in the said Khata, he may then decide the allocation of the impugned land on the basis of its character and preferential claim of the either of the parties.