This case has been taken up in pursuance of judgment dated 1-11-2000 passed in Writ Petition No,1088 of 1990 by the Honourable High Court vide which the case was remanded to the Member (Colonies), Board of Revenue for fresh decision treating the revision petition filed. By the respondents to be pending adjudication.
2. Briefly, the facts of this case are that Jhanda, predecessor-in- interest of the petitioners and respondents was allotted land measuring 77 Kanals and 4 Marlas comprising Khasras Nos.59/13/2, 14, 17, 18, 19/1, 21/1, 21/2, 22 to 25 situated in Chak No,18/RB Bahoru, Tehsil and District Sheikhupura under Ejected Tenants Scheme. The proprietary rights of this land were conferred on him by the D.C./District Collector, Sheikhupura on 12-3-1974 and the price was fixed as Rs,12,310. Karam Din, the predecessor-in-interest of respondents Nos.1(i) to (viii) and Bashir Ahmad respondent No,2 were in cultivating possession of the land in question since 1971. After the death of original allottee Jhanda on 22-8-1968, they applied for grant of proprietary rights on 12-7-1972. After receipt of report from the Tehsildar, the E.A.C. (R), recommended the transfer of tenancy under section 19-A of the Colonization of Government Lands (Punjab) Act, 1912 to all the legal heirs. The D.C./District Collector, after hearing the parties, transferred the land in question in favour of five sons and one daughter, the legal heirs of original lessee, under section 19-A of the Act vide order dated 12-5-1986. Feeling aggrieved by this order, Karam Din, predecessor-in-interest of respondents Nos.1(i) to (viii) and Bashir Ahmad respondent No,2 filed an appeal before the Additional Commissioner on the ground that they are the actual cultivators and were paying Lagan and instalments towards the price of land even in the lifetime of original lessee and are entitled to the transfer of entire land in their names. The Additional Commissioner vide order dated 3-11-1986 accepted the appeal and set aside the District Collector's order dated 12-5-1986. The present petitioners challenged this order in Revision Petition No,3453 of 1986 before the learned Member (Colonies), Board of Revenue, who vide order dated 11-2-1988 accepted the same, set aside the order dated 3-11-1986 and ordered the transfer of impugned land in favour of all the legal heirs of Jhanda (deceased), the original allottee. A Petition No,91 of 1988 for review of order dated 11-2-1988 filed by the present respondents was rejected by the learned Member (Colonies) vide order dated ,1-6-1989 with the observation that the present respondents Karam Din and Bashir Ahmad submit choice of retaining, in one block, portion of impugned grant according to their share. The respondents filed a civil suit which was later on withdrawn on 10-2-1990 to file fresh proceedings competent under the law.
Consequently, the respondents filed Writ Petition No,1088 of 1990 in the Honourable High Court, Lahore which was accepted vide judgment dated 1-11-2000 and the case remanded to the Board of Revenue for fresh decision after perusing the original record without being influenced by the observations of the Court. Resultantly, this case has been taken up for hearing.
3. I have heard the learned counsel for both the parties and have examined the record. It was contended by the learned counsel for the petitioners that the allotment was made in favour of Jhanda, father of Lal Din, Jamal Din, Muhammad Sharif (deceased), the petitioners and Karam Din (deceased) Bashir Ahmad and Mst. Hanifan Bibi, the respondents. He contended that after his death, the respondents Karam Din and Bashir Ahmad submitted application dated 17-7-1972 to the Deputy Commissioner for transfer of succession in their favour being actual cultivator of the land in question, but the D.C./District Collector ordered the succession of deceased allottee in favour of five sons and one daughter, i,e, all the legal heirs under the Shariat Law on 12-5-1986, the Additional Commissioner set aside the order without appreciating the contention of the petitioners. He further contended that the learned Member (Colonies), vide order dated 11-2-1988, allowed the inheritance in favour of all the legal heirs of the Jhanda allottee under the Shariat Law. He argued that due to cultivation of land by Karam Din and Bashir Ahmad, the other legal heirs cannot be deprived of their legitimate rights. The succession of the deceased had to be decided under the Shariat Law and this fact was correctly decided by the D.C./District Collector and the learned Member, Board of Revenue. On the other hand, learned counsel for the respondents contended that Karam Din (deceased), predecessor-ininterest of the present respondents Nos.1(i) to 1(v iii) and respondent No,3 were in continuous cultivating possession of the land in dispute even in the lifetime of original allottee. They have paid all Government dues and have made total payment of price of the land.
He stated that the petitioners are not in physical possession of the land and thus the other legal heirs have no right to claim the land in dispute. He argued that the learned Additional Commissioner correctly passed the order and allowed the transfer in their favour. He argued that the Honourable High Court had remanded the case to this Court for decision by accepting their plea. According to him, the revision petition is devoid of force and the same was liable to be dismissed by maintaining the order of the Additional Commissioner.
4.Arguments advanced by the learned counsel for the parties have been considered and the relevant record has been examined. The lease under the Ejected Tenants Scheme was granted to one Jhanda (deceased) predecessor-in-interest of the present parties. Karam Din (deceased), predecessor-in-interest of present respondents Nos.1(i) to 1(viii) and respondent No,2 applied to the District Collector for transfer of the tenancy held by the deceased allottee in their favour being legal heirs and. On account of being in physical possession of the land in question even in the lifetime of the allottee but their request was declined . However, in appeal, the same was transferred to them. Anyhow, in revision petition, the learned Member, (Colonies) on 11-2-1988, allowed the inheritance of (deceased) allottee in favour of all the legal heirs. The writ petition filed by the respondents against this order was remanded to the Board of Revenue by the Honourable High Court vide judgment dated 1-11-2000. The case has been taken up in compliance of this judgment.
5. As per policy letter dated 20-1-1960 issued by the Board of Revenue the tenancy under Ejected Tenants Scheme had to devolve on the heirs of a deceased allottee provided (i) they did not cultivate any other areas in the lifetime of the original allottee; (ii) the family entirely lived on the allotted area; and (iii) no other land was acquired by them. It was further decided that the head of the family will be responsible for the maintenance of the other family members of the deceased allottee. In subsequent policy letter dated 30-11-1963 issued by the Board of Revenue, it was further decided that the proprietary rights had to be conferred on all the heirs of the deceased allottee. In the instant case, only two heirs of the deceased allottee had applied for inheritance in their A names. Their request was not acceded to by the District Collector who ordered the inheritance in favour of all legal heirs on the basis of policy of the Board of Revenue referred to above. Under the Shariat Law, the succession of a deceased devolves on all the legal heirs. The D.C./District Collector has correctly passed the order by allowing the inheritance in favour of all legal heirs. The Additional Commissioner had erred in setting aside the order of the District Collector against the policy instructions referred to above. My learned predecessor, after hearing the parties, had also allowed the inheritance in favour of all the legal heirs. And set aside the order of the Additional.
Commissioner. All the legal heirs are equally entitled to the inheritance of the deceased allottee.
The order of the learned Additional Commissicmer transferring the inheritance to Karam Din and Bashir Ahmad depriving the other legal heirs vide impugned order cannot be upheld on the contention that they were actually cultivating the land comprising the tenancy even during the lifetime of 'the predecessor or that they had been paying the Government dues/Lagan. This contention has no force in terms of the policy letter of Board of Revenue dated 20-1-1960, that tends to exclude only those legal heirs who had other land available with them to cultivate.
Subsequently, policy letter dated 30-11-1963 made the policy of the Board of Revenue still clearer by deciding that the tenancy under the Ejected Tenants Scheme would devolve on all the legal heirs.
The Ejected Tenants Scheme was launched vide Notification No,650, dated 17-7-1952. The concept of conferment of proprietary rights on the tenants under this Scheme was introduced on 8-10-1960 vide Policy Letter No, Col./8/2457(4167). Thus the rights to own the property accrued to the tenant or his legal heirs from the day it was decided to confer proprietary rights of the tenancy on the tenants. It would be against the provisions of the Constitution of the Islamic Republic of Pakistan, 1973 to draw any discrimination between the legal heirs regarding their right to own property inherited by them under the Shariat Law. The petition is accepted and the impugned order of the Additional Commissioner is set aside. The inheritance of Jhanda (deceased) allottee shall, therefore, devolve on all of his legal heirs.