MIAN MUHAMMAD AKRAM, MEMBER (CONSOLIDATION).-Aggrieved by the order dated 29.11.1988 of the Additional Commissioner (Consolidation), Sargodha Division, Sargodha whereby he dismissed the revision of the petitioner thereby maintaining the order of the Collector (Consolidation), dated 29.2.1988, this 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 present petitioner filed an appeal claiming the separation of his due share from the inheritance of his uncle Sher who had died issueless on 22.4.1980, whereas the Consolidation Scheme of the village Midh Pargana, Tehsil Bhalwal, District Sargodha was confirmed subsequently on 30.12.1980. This litigation went up to the Board of Revenue and ultimately the case was remanded by the Learned Member, Board of Revenue, vide his order dated 13.1.1987 on the ground that the respondent's party had contested this date of death by claiming it to be 22.4.1981. In this connection the learned Member, Board of Revenue in his aforementioned order observed that, "I have perused the record of the case which reveals that Consolidation Scheme of the village was confirmed on 30.12.1980. I am of the view that if Sher died before the confirmation of Consolidation Scheme then the petitioner was entitled to get his due share from the deceased's propertied.
Otherwise the petitioner has no locus standi to demand that share. Obviously one death certificate is incorrect, the case is remanded to Collector (Consolidation) for fresh decision in the light of my above observation."
3. In pursuance of the above order, the Collector (Consolidation) vide his order dated 29.2.1988 concluded that Sher had in fact, expired after the confirmation of Consolidation Scheme of the village and his actual date of death was 22.4.1981. On the rejection of his appeal, the petitioner assailed this order of the Collector (Cons:) before the Additional Commissioner (Consolidation) who vide his impugned the revision of the petitioner, thereby upholding the findings of the Collector (Cons:). Hence the present revision.
4. Counsel for the respective parties were heard at length. Some of the respondents who failed to appear despite publication of proclamation in the newspaper were ordered to be proceeded against ex-pane. Record and relevant documents produced by Munshi Manzoor Ahmad, Patwari were also examined.
5. Arguing on behalf of the petitioner, it was pointed out by his counsel that Khasra No.922,632 & 633 were prepossessed by the petitioners which being commercial in nature were extremely valuable. He was unlawfully deprived of his entitlement in the above land and instead he was allocated killa No.3 & 8 of Square No.96 and rest of the area was allocated in Square No.61.
Moreover, the petitioner was entitled to his share from the inheritance of his uncle Sher who died issueless on 22.4.1980 prior to confirmation of Consolidation scheme of the village which took place on 30. 12.1980.
6. All these contentions were refuted with equal force by the counsel for the respondents. It was argued that the petitioner was a co-sharer in joint khata and he was allocated land strictly according to his entitlement. It was also argued that the wanda of the petitioner was prepared with his consent and his scheme was in his knowledge from the very beginning. Therefore, there was no valid ground to condone the delay, as the first appeal of the petitioner was the-barred and he had failed to offer any satisfactory and cogent ground for filing a the- barred appeal on 13.3.1983 against the confirmation order of the Consolidation. Officer, dated 30.12.1980.
7. As regards the death of Sher, it was contended that the Learned Collector (Consolidation) in his order dated 29.2.1988 had clearly held that the exact date of death of Sher was 22.4.1981. This conclusion was drawn on the basis of examination of original record of the Union Council which was produced by the Secretary. There was no cutting or overwriting in respect of the date of death of Sher deceased which was recorded as 22.4.1981, on the said Register at serial No.9. It was held that Sher was still alive when Consolidation Scheme of the village was confirmed on 30.12.1980. This finding was even upheld by the Learned Additional Commissioner (Consolidation) in his impugned order which was passed on the revision filed by the petitioner. In the circumstances, it was urged that this petition being without any substance and merit was liable to be dismissed.
8. Having given careful consideration to the contentions raised by the counsel of the respective parties and the facts of the case, it is abundantly clear that the petitioner did not have a preferential right or superior claim for the allocation of his entire entitlement out of Khasra No. 922, 632 and 633 which were not under his exclusive possession. Prior to consolidation operations this village was in 'Kishtwari', and the petitioner being a co-sharer in the said land therefore, he could be allocated land from the aforesaid khasra numbers only according to his entitlement.
9. As regard the death of Sher, the uncle of the petitioner who had died issueless, his real date of death was verified as 22.4.1981, i.e. Subsequent to the confirmation of the Consolidation Scheme of the village, dated 30.12.1980. This fact was established on the basis of irrefutable documentary evidence, which was produced by the Secretary, Union Council before the Collector (Consolidation). It is also in evidence that the inheritance of aforesaid deceased Sher and the share of the petitioner was kept in Joint Scheme No.52 alongwith his real brothers Ghulam Muhammad, Muhammad Hayat and Muhammad Khail. This scheme was duly verified by the petitioner as his share from the inheritance of Sher deceased is duly entered alongwith his brothers in Wanda No. 52. He is entitled to get his share partitioned from rest of his brothers under normal procedure. In this connection it may be further observed that joint Khata can only be separated with the consent of all the co-shares at the the of the confirmation of the Consolidation Scheme.
When Sher deceased was still alive there was no occasion for such a consent. Thus the inheritance of Sher deceased was not liable to be separated during the Consolidation proceedings. Now on the conclusion of consolidation operations, this village has been returned to Mahal side and the Consolidation authorities have become functus officio. Therefore, the petitioner can only apply for partitioning of his share. Otherwise too, there was no merit and substance in the very first appeal of the petitioner against his wanda which was prepared on the basis of the consent and this consent order could not be legally challenged specially in a the-barred appeal as he had failed to offer any reasonable explanation or cogent ground for the condonation of delay.
10. In view of the facts stated above, there being no substance in this petition, the same is accordingly dismissed.