ORDER MIAN MUHAMMAD AKRAM, MEMBER (CONSOLIDATION) BOARD OF REVENUE, PUNJAB. - Aggrieved by the order dated 14-6-1989 of the Additional Commissioner(Consolidation), Bahawalpur Division, Bahawalpur whereby the revision of the petitioners was dismissed thereby upholding the order of the Collector(Consolidation), Bahawalpur dated 2-7-1987, this revision under Section 13 of the Consolidation of Holdings Ordinance 1960 has been preferred with a prayer for setting aside the impugned order.
2. Brief facts of the case are that some of the wandas of Village Tibbi Data Khan Tehsil & District Bahawalpur were re-confirmed under the review orders of the Additional Commissioner.
(Consolidation), Bahawalpur by the Consolidation Officer. In pursuance of the above review orders dated 13-5-1981 various schemes of the parties were confirmed by the Consolidation Officer on 7- 2-1987. This order was challenged in appeal by the respondents before the learned Collector (Consolidation) who by his order dated 2-7-1987 turned down the prayer of the petitioners for the restoration of impugned land in Khasra No.319/3 killa No. 17(3K-13M). It was held that the same had been allocated to the wanda No. 2 of Haji Muhammad under the review orders of the Additional Commissioner (Consolidation) dated 13-5-1981 and he i.e. The Collector (Consolidation) was legally incompetent to make any amendment in the same. The revision against the said order was also rejected by the Additional Commissioner(Consolidation) on the same ground. The petitioners have now sought legal remedy before this Court.
3. Counsels for the parties were heard at length. Relevant record produced by Munis Ashiq Muhammad Patwari was also perused.
4. It was contended by the learned counsel for the petitioners that originally impugned land in Killa No.17 (3K-13M) was owned by one Muhammad Nasir according to the Record of Rights of 1962-63 Khautuni No.504 and was included in his wanda No.318. One Haji Muhammad holder of first wanda No.195 did not include the disputed Khasra No. After the death of aforesaid Muhammad Nasir, some area was alienated to Mst. Bakhtan respondents No.20 through fo different mutations by the descendants of Muhammad Nasir. However, prior t these mutations, one Allah Wasaya, the predecessor-in-interest of the present petitioners had purchased a part of land from wanda No. 318 of aforesaid Muhammad Nasir and was thus a cosharer in the said Khata. On this basic aforesaid Allah Wasaya filed four different pre-emption suits against Ms Bakhtan respondent No.20 and obtained a decree which even on appeal up fo th level of High Court was last upheld by order dated 2-12-1984. After this ci litigation, the petitioners obtained possession and raised houses, shop, mosque and orchard in the impugned land. Later on, these wandas were ordered to reviewed by the Additional Commissioner (Consolidation) on 13-5-1981 and we taken up for confirmation. It is alleged that under this order of the Addition Commissioner(Consolidation)
Manzoor Ahmad son of aforesaid H Muhammad and Mst. Bakhtan got the impugned Killa No.17 (3K-13M) include in the new wanda No. 2 of Haji Muhammad. An area of 1K-17M of the impugn killa was allowed to remain intact in the wanda of the petitioners. It was point out that this fraud happened subsequently at the time of reconfirmation of t respective wandas by the Consolidation Officer, after having been sent to him the Additional Commissioner after passing review orders on these Wandas, contention of the petitioners was turned down by the Collector(Consolidation) the ground that he was legally incompetent to make any amendment in the reviced order of the Additional Commissioner (Consolidation) dated 13-5-1981, and t decision was upheld in revision' by the learned Additional Commission (Consolidation) vide his impugned order on exactly the same ground. In the of the above facts, it was contended that the impugned order was unsustainable first because the learned Additional Commissioner(Consolidation) by his e~ order dated 13-5-1981 after passing review orders had sent them to Consolida Officer for reconfirmation. In pursuance of this, the Consolidation Officer reconfirmed these wandas on 7-2-1987. Legally Collector (Consolidation) competent to make any amendment in these wandas and the prayer of Muhammad Munawar petitioner could not be rejected on the ground that these wandas had been remanded to the Consolidation Officer after review by the Additional Commissioner(Consolidation). The same is applicable to the impugned order of the learned Additional Commissioner(Consolidation). It was also contended that the impugned land was purely residential in nature, and as held in PLD 1992 page 333, this land could not be subjected to consolidation proceedings.
3. Refuting these contentions, it was pointed out by the learned counsel for the respondents that the predecessor-in-interest of the respondents was also a co-sharer in the aforesaid Khata according to the entries of the Jamabandi 1962. After the alienation of some area from Wand I No.318 of aforesaid Muhammad Nasir to Mst. Bakhtan, it was not challenged either by Muhammad Nasir deceased, or by any other of his cosherers. The civil decree through which Allah Wasaya, predecessor-in-interest of the present petitioner was stated to have become a co-sharer in this Khata, did not particularly specify the claim of aforesaid Allah Wasaya on impugned Killa No. 17(3K- 13M). It was claimed that the khata of Haji Muhammad was prepared separately under the orders of the Additional Commissioner(Consolidation) in 1981 and the impugned land was included in his Wanda No. 2. The possession warrant issued by the Civil Judge, a photo copy of which was produced as a proof was also hot in respect of the impugned Killa No. 17(3K-13M), but it related to the joint khata. It was also pointed out that the petitioner filed a civil suit for the possession of disputed killa along with some other land which was dismissed on 22-5-1989. An appeal against the same was also rejected by the District & Sessions Judge on 18-7-1993. In view of these facts, the learned counsel for the respondents pointed out that even when Bashir Ahmad son, Naziran Bibi daughter of aforesaid Muhammad Nasir were not allocated or owned this particular Khasra number, they were simply cosharer in the joint Khata. As regards the present petitioners, they were never a party in the lower Courts and had no locus-standi to feel aggrieved. Under the circumstances, the present revision was stated to be without merit and substance and, therefore, liable to dismissal.
6. Having considered carefully all th< se contentions, it is not difficult to conclude that it was basically wrong on the p rt of the Collector(Consolidation) and Additional Commissioner(Consolidation | to hold that they were legally incompetent to interfere with the Wandas of the parties which were sent to the Consolidation Officer for re-confirmation, alter having been reviewed by the Additional Commissioner (Consolidation) under his order dated 13-5- 1981. This direction of the Additional Commissioner(Consolidation) did not divest the lower authorities of their inherent powers and the orders passed by the Consolidation Officer were challengeable before higher forums.
7. Of the petitioners on the ground that he was legally incompetent to make any amendment in these wandas, because these were remanded to the Consolidation Officer after having been reviewed by the Additional Commissioner(Consolidation). The same applies to the finding of the learned Additional Commissioner (Consolidation) which he gave in his impugned order
8. As regards the facts of the case, it is obvious that impugned land in Killa No.17 was recorded in Khautuni No.504 of Jamabanbi for 1962-63 in favour of Muhammad Nasir. This was included in his wanda No.318 at the time of the preparation of his consolidation scheme. At that time, Haji Muhammad predecessor-in-interest of the respondent was allocated wanda No.195 wherein the impugned killa was not at all included. It was only through the review order of the Additional Commissioner (Consolidation) dated 13-5-1981 that it was included in the wanda of aforesaid Haji Muhammad which was now No. 2. Obviously this was at the back of the petitioners who had in the meantime become cosherers through their predecessor-in-interest Allah Wasaya who by mutation sanctioned on 18-2-1973 had become a co-sharer in the khata of Muhammad Nasir deceased. It was for this reason that he was successful in getting favourable decrees in four different pre-emption suits which he filed against Mst. Bakhtan respondent No.20 who had purchased some land from this wands No318 of Muhammad Nasir. These pre-emption suits, decreed in favour of Allah Wasaya, predecessor-in-interest of the present petitioners were upheld even up to High Court by the final order dated 2-12-1984. The document relating to the possession warrant produced by the Counsel for the respondents does not in any way affect the rights of the petitioners as the disputed land is a part of this joint khata. Similarly subsequent suit of the petitioners which was filed for the restoration of land along with this killa and which was stated to have been dismissed on 22-5- 1989 by the Civil Judge has no hearing with this revision, because of the exceptor made in regard to this particular killa in the said order. On an application submitted by the petitioners to the Tehsildar, the spot was inspected by the Civil Officer in the company of the Patwari and local respectables. According to report dated 14-12-1992 (placed on i.e) it was concluded that the disputed kill contained pucca residential houses, a mosque, few shops and an orchard. This w~ found to be under the possession of Muhammad Munawar petitioner.
9. All the above facts, clearly go to prove that the petitioners have preferential right for the restoration of land comprising Rectangle No.319/3 Kill No. 17(3K-13M). The impugned order is not legally sustainable. The same I therefore, set aside. Resultantly the impugned land in killa No. 17(3K- 13M) sh stand included in the wanda of the petitioners. The case is remanded to Collector (Consolidation), Bahawalpur for implementing this direction and allocate land in lieu thereof from the wanda of the petitioners to the respondents.