Through this single order I intend to dispose of Writ Petition No. 10979 and Writ Petition No. 11962 of 1997 as through both the petitions, petitioners i.e. Walayat Shah, Inayat Shah sons of Akbar Shah and Qasim A.I Shah alongwith his sister namely Mst. Rasool Bibi have challenged the order of the Member, Board of Revenue, Punjab, Lahore, dated 25-2-1997 whereby Member, Board of Revenue, Punjab Lahore has set aside the order of Additional Commissioner (Consolidation), dated 23-1- 1994 and has upheld the order of the Additional -Deputy Commissioner (Consol.), dated 23-10- 1993, whereby Mutation No.4124 attested on 14-1-1993 has been cancelled.
2. Brief facts of the case as given out in Writ Petition No. 10979 of 1997 are that Umar Shah, predecessor-in-interest of the respondent No.1 namely Bootay Shah, filed a suit for declaration before the Civil Judge claiming to be owner of the 3/4 share in the suit Khata while the present petitioners/defendants alongwith private respondents Nos.6 to 12, are owners to the extent of 1/4 share on the basis of entries of the Revenue Record. The suit of Umer Shah, predecessor-in-interest of respondent No.1, was decreed by the trial Court and the decree was also upheld by the learned Additional District Judge. However, 2nd appeal against judgment and decree filed by Karam Shah and Walayat Shah was allowed by the High Court on 11-3-1935 and resultantly suit of Umer Shah was dismissed vide judgment, dated 11-3-1935. In 1993, when the village was under consolidation proceedings the present petitioners, as successors of Karam Shah and Walayat Shah, approached the Consolidation Authorities for change of entries in the Record of Rights on the basis that suit filed by Umer Shah claiming 3/4 share in the suit Khata stood dismissed by the High Court vide judgment, dated 11-3-1935. The Assistant Collector/Consolidation Officer, assuming an executable decree of dismissal of suit of Umer Shah in Civil Appeal No.2085 of 1934, entered the Mutation No.4124 and attested the same, without notice to the present respondents; resultantly changed the share of the respondents from 3/4 in the suit Khata to 1/2 and the share of petitioners from 1/4 to 1/2 The respondents being aggrieved of the ex parte attestation of Mutation 4124, filed an appeal before the Additional Deputy Commissioner (Consolidation)/Collector, who accepted the appeal vide order, dated 23-10-1993 and set aside the mutation. The present petitioners filed appeal before the Additional Commissioner (Consolidation) who accepted the appeal vide order, dated 23-1-1994. The respondents filed a revision before the Member, Board of Revenue, Punjab, Lahore against the order of the Additional Commissioner (Consolidation) and learned Member, Board of Revenue Punjab, Lahore accepted the revision vide order dated 25-2-1997 and set aside the mutation by upholding the order of the Additional Deputy Commissioner (Consolidation), dated 23-10-1993; hence this Constitution petition by the petitioners in this Court.
3. Learned counsel for the petitioners has argued that mutation 4124 was entered and attested by Assistant Collector on 4-1-1993 on the basis of the decree of dismissal of the suit for declaration of 3/4 share in the suit Khata, by the plaintiff Umer Shah, by the High Court; hence the learned Member, Board of Revenue Punjab, Lahore as well as the Additional Deputy Commissioner (Consolidation) erred in law in rejecting the mutation; further argued that the petitioners have been in possession of the suit-land since 1911 on the-basis of the compromise between the parties; hence the order of the Member, Board of Revenue, Punjab, Lahore, dated 25-2-1997 as that of the Additional Deputy Commissioner (Consolidation), dated 23-10-1993 are illegal and not maintainable in law and liable to be declared as without lawful authority.
4. On the other hand learned counsel for the respondent No.1 has argued that the order of Member, Board of Revenue, Punjab, Lahore is in accordance with law, and Mutation No.4124 has been rightly cancelled as the mutation was attested without notice to the respondents and long-standing entries of the shares of the parties in Jama Bandi were changed without providing opportunity of hearing to them; further argued that there is no decree in favour of the petitioners while only the suit filed by Umer Shah for declaration was dismissed by High Court; further argued that Consolidation Officer in violation of section 42(7) of Land Revenue Act attested the mutation while otherwise there is no decree in favour of the petitioners ever passed by the any Court to the effect that they are owners to the extent of 1/2 to the suit Khata; hence the orders of the Member, Board of Revenue as well as Additional Deputy Commissioner (Consolidation) have been passed in accordance with law.
5. I have heard the arguments of the learned counsel for the parties and have perused the record attached with this petition. Admittedly; the petitioners have neither been declared by any Court of competent jurisdiction to be the owners to the extent of 1/2 share in the suit Khata nor impugned Mutation No.4124 had been attested by the Consolidation Officer, after providing opportunity of hearing to the respondents whereby the long--standing entries in the Record of Rights, regarding their respective shares in the Khata have been changed.