' MUNIR A. SHEIKH, J.---This petition for leave to appeal is directed against the judgment of the Lahore High Court, Lahore dated 17-4-2002 whereby Constitution Petition No,2014 of 1993 filed by the petitioners has been dismissed.
2. This case has a chequered history but we need not repeat the facts as this petition can be disposed of after taking into consideration the facts subsequent to the judgment passed by this Court regarding partition of the Shamlat Deh.
3. This Court in the previous round of litigation held that partition of Shamlat Deh shall be made on the basis of Shart-Wajib-ul-Arz 1891-92. Allah Yar and Muhammad Yar, deceased made an application under section 152, C.P.C. Before the learned Additional District Judge praying that the decree dated 12-10-1967 may be corrected in the terms that measure of partition should not be Shart Wajib-ul-Arz 1891-92. This application was dismissed by the learned Additional District Judge on 23-1-1985 against which revision petition was allowed by the High Court vide its order dated 19- 5-1986, which was challenged by the respondents before this Court in Civil Petition No,712 of 1986, which was allowed on 16-12-1986. The petitioners filed a civil suit to claim the relief on the same basis which too was dismissed by holding that the judgment of this Court was binding.
4. During consolidation operation the Consolidation Officer made Scheme according to the spirit of the judgment of this Court on the basis of relevant record available. The Additional Commissioner in this round of litigation in paras. 9 to 12 of his order dealt with the matter in detail, which is reproduced below:-- ' "The problem in the consolidation is only to implement the decree passed by the Civil Court up to the Supreme Court. Zari-Khawet and Zar-i-Tirini has to be taken for the settlement of 1891-92. There is no dispute regarding the Zar-i-Tirini of the village. Both the parties agree that. In the settlement of 1891-92, which is Rs,165. There is also no dispute regarding the total amount of Zar-i-Khawet according to the settlement of 1891-92 which iS Rs,85. The total amount of. Zar-i-Khewat and Zar-i- Tirini which is Rs,250 is also not disputed. However, the dispute is regarding allocation of Rs,85 among the owners of the village. The learned counsel for the petitioner, has raised objection that allotation of Zar-i-Khewat to each individual has not been done according to Misal-e-Haqiat or settlement of 1891-92 but it has been done on different formula which is against the spirit of decree.
10. The factual position regarding allocation of Zar-i-Khewat among the right holders as done by the Consolidation Officer has been examined. The Consolidation Officer did not take Column No,12 which is regarding Zar-i-Khewat in the Misal-i-Haqiat of 1891-92. He has taken Columns Nos.8, 9 which provide Khasra number and are of each Khasra number. The category of each Khasra number is also given. In Shart Wajib-ul-Arz the Zar-iKhewat was levied as two Antis per Bigha of Lagan and one Anna per Biglia for WARI and no Zar-i-Khewat for Banjar land. He took this kind of land and the calculated Zar-i-Khewat on the basis of Lagan Wari and Banjar. The total amount by this method come out to be Rs,79 (sic) Annas and 9 Paies. Bt.t trying to make up the deficiency from the total amount of Zar-iKhewat Rs,85 he distributed on all owners on prorate basis Rs,5, 2 Annas 3-1/8 Paies. Thus he made up the total as Rs,85. The confusion in the mind of the Consolidation Officer and in the minds of the parties existed because if the kind of land and the Zar-i-Khewat mentioned in Column No,12 do not tally in several Khewat then he took the kind of land which is given in Column No,9.
11. According to the order of the District Collector dated 28-2-1893, the new assessment according to the Shart Wajib-ul-Arz for the year 189142, the assessment of Zar-i-Khewat and Zar-i-Tirini, will be done on Rabi, 1893. The Mujmal Jamabandi on this assessment had to be prepared. But unfortunately, Mujmal Jamabandi is not available. The correct position would have been the Zar-i- Khewat and Zar-i-Tirini should have been taken from the Mujmal Jamabandi of 1893.
12. In this Court, strenuous and long efforts have been made to trace the kind of land and Zar-i- Khewat for Rabi, 1893. The Mujmal Jamabandi 1893 is not available. The other Jamabandis and relevant record has also been searched to find out the Zar-iKhewat prepared in Rabi, 1893 has also not been found. Therefore, the only alternative left with this Court is to assess the Zar-i-Khewat on the basis of the available record. The first proposition is that Zar-i-Khewat mentioned in Misal-e- Haqiat of 1891-92, should be taken into account and Shamlat should be distributed on this. It cannot be done because in the Misal-eHaqiat, it is recorded that Zar-i-Khewat is regarding the year 1889-90, which is based on the previous settlement. According to the decisions of the Courts the Zar-i-Khewat of the settlement of 1891-92, is to be considered. In fact in this settlement, the Lagan was imposed on Wari kind of land which was not in the previous settlement. Therefore, the Zar-i-Khewat given in the Misal-e-Haqiat 1891-92, should be taken and Lagan should be assessed on the basis of Shart Wajib-ul-Arz of settlement 189192. This has been done by the Consolidation Officer but it is short by Rs,5, 2 Anna and 3-1/8 Paies. The Zar-i-Tirini of Rs,165 which is given in the Misal-e-Haqiat 1891-92 is accepted by the parties. In fact, till today Zar-i-Tirini of Rs,165 is recorded in the Jamabandis. The owners of the village have been selling and purchasing Zar-i-Tirini from Rs,165. Therefore, no change in the Zar-i-Tirini can be made and it has to be kept as Rs,165 because it is accepted by both the parties and till today, it is on the record. Therefore, the Consolidation Officer kept Zar-i-Khewat as Rs,85 and the shortage of Rs,5, 2 Annas and 3-1/8 Paies has been distributed among all the owners on prorate basis. Probably this is the nearest possible solution for distribution of Shamlat on Zar-i-Khewat and Zar-i-Tirini. The correct record of Rabi 1893, is not available anywhere in the record. Therefore, the kind of land given in the Misal-e-Haqiat has been made basis by the Consolidation Officer. There is no better alternative before this Court to suggest that how Zar-iKhewat should be calculated."
5. The revision petition filed by the petitioners against the order of the Additional Commissioner was dismissed by the Member, Board of Revenue against which Constitution Petition filed by them has been dismissed by the Lahore High Court, Lahore against which leave to appeal is sought.
6. In paragraph (d) and (e) of the revision petition filed by the petitioners before the Member, Board of Revenue the case made out by them was as under:-- "(d) That the Shart Wajib-ul-Arz of 1891-92 was recorded on 28-2-1893. This Shart will be valid and operative till the next settlement i.e, 1913-14 and the revenue levied under this Shart will be reflected in the Misal-e-Haqiat of 1913-14. Therefore, the Zar-i-Khewat and Zar-i-Tirini recorded in the said Misal-eHaqiat (1913-14) could be the only basis for partitioning the Shamlat in accordance with the decision of the Civil. Court as affirmed up to the Honourable Supreme Court of Pakistan.
(e) That at the time 1865 settlement, the total land revenue demand for the estate was Rs,250 out of this, Zar-i-Khewat was Rs,7/1 and a few Annas and the rest was Zar-i-Tirini. In accordance with the Shart Wajib-ul-Arz of 1865, the total revenue of Rs,250 was converted at Rs,85 as Zar-i-Khewat and Rs,228 (Zar-iTirini and Haboob) which included Rs,63 and 6 Annas as cesses (Haboob)."
It is clear from this that the petitioners had been agitating that the basis for partition should be Misal-e-Haqiat 1913-14. According to the judgment the basis of partition of Shamlat Deh was Shart Wajib-ulArz 1891-92 against which application made by the petitioners under section 152, C.P.C.
Had already been dismissed and their suit had also been dismissed by holding that Shart Wajib- ul-Arz 1891-92 was to be made the basis and not Misal-e-Haqiat 1913-14.
7. The learned Judge has rightly come to the conclusion that after dismissal of the suit of the petitioners they could not agitate that Misal-eHaqiat 1913-14 should be made the basis for partition.
' So far as the Consolidation Authorities are concerned after examination of the orders passed by them, we have come to the conclusion that they had substantially complied with the judgment of this Court in its letter and spirit on the basis of nearest record available with them. After finding that there was some difference, it was distributed among the owners of the Shamlat Deh which is not only just and proper order but complete justice has been done.
8. The impugned judgment of the High Court and the orders passed by the Consolidation Authorities do not suffer from any illegality, therefore, this petition has no merits which is accordingly dismissed and leave refused.