1. ' Consolidation scheme of Mauza Cholani of Dera Ghazi Khan District was confirmed on 31-8-1992.
2. While separate Wanda for the land of respondent Taggia was created under Scheme No,331, 8 Kanals, 7 Marlas land comprising Khasra Nos.36/21/2, 65/1/3, 65/10/1, 66/3/1 and 66/3/2 was allocated to the appellant and the respondent with half half shares under joint Scheme No,331/1. On 3-4-1996 i.e, after lapse of over 3-1/2 years, the respondent filed an appeal before the Additional Deputy Commissioner (Consolidation), Dera Ghazi Khan. Therein, he alleged that with the connivance of the Consolidation Staff, the petitioner had manoeuvered the sanction of Scheme No,331/1 in which both of them were wrongly made co-sharers. He further asserted that in Khasra Nos.66/3/1 (measuring 1 Kanal, 9 Marlas) and 66/3/2 (measuring 3 Kanals, 1 Marla), his house and a turbine installed by him existed and therefore, this land may be allocated to him and in lieu Sawan be compensated from the land of Scheme No,331. This appeal was dismissed by the Collector Consolidation vide his order, dated 8-12-1996 with the observations that while the same was time- barred and the Mauza already stood transferred to the Revenue side; Scheme No,331/1 had been approved with the consent of the appellant.
3. ' Respondent Taggia having filed a revision petition against the said order (wrongly shown by the Additional Commissioner as dated 5-12-1996,) the same was accepted by the Additional Commissioner Consolidation, Dera Ghazi Khan Division vide his order, dated 16-6-1997. For the logic only known to him, the Additional Commissioner withdrew 4 Kanals, 10 Marlas land of Khasra Nos.66/3/1 and 66/3/2 from the joint Scheme No,331/1 of the parties and allocated the same to Scheme No,331 of respondent Taggia and withdrawing 4 Kanals, 10 Marlas land from Scheme No,331 of Taggia allocated it to scheme No,331/1. This order of the Additional Commissioner has been assailed in the present appeal.
4. I have heard the learned counsel for the parties. The learned counsel for the appellant argued that 8 Kanals, 7 Marlas of land was allocated jointly to the appellant and the respondent under Scheme No,331/1 with fifty fifty shares. That, this was done for the reason that both of them having jointly installed an expensive turbine in the land covered by this scheme, they had consented to the allocation of the said land jointly to them. That the respondent having challenged this Scheme after a period of about 4 years, his appeal was rightly dismissed by the Collector Consolidation.
5. According to the learned counsel, the disputed land of Khasra Nos.66/3/1 and 66/3/2 having turned into land of commercial type because of its being located on the Indus Highways, the respondent attempted to grab it because of its higher value and the Additional Commissioner unlawfully allocated this land to the respondent to the extreme disadvantage of the appellant. The learned counsel maintained that both the appellant and the respondent having already sold out parts of the disputed land through various agreements of sale the Patwari had reported to the Additional Commissioner that the turbine existing on the land was owned jointly by both of them. The learned A counsel added that if the respondent wanted to separate his share from the Common Scheme, then he should have had applied for partition of the land. With these arguments, the learned counsel pleaded for setting aside the impugned order of the Additional Commissioner, Dera Ghazi Khan.
6. ' The learned counsel for the respondent argued that the appellant and the respondent being cousins, the respondent had paid money to the appellant with regard to his share in the turbine and that the electricity bills were being paid by the former. According to the learned counsel, the Consolidation Officer having visited the site, he had reported that the disputed land was under cultivation of the respondent. The learned counsel submitted that while residential construction of the respondent was located nearby the appellant had got Scheme No,331/1 sanctioned by keeping the respondent in the dark. That, the disputed land having been rongly kept in the joint Wanda, the appellant had made some sale from the same. With these arguments the learned counsel contended that the impugned order having been rightly passed by the Additional Commissioner the appeal may be dismissed.
7. ' I have considered the respective contentions of the parties in the light of the relevant record and the Site Plan produced by Mr. Ghulam Farid, Consolidation Patwari. The very fact that the Consolidation Scheme of the Mauza was confirmed on 31-8-1992 and the respondent filed appeal against the same in 1996 i.e, after a lapse of over 3 years 6 months when the Mauza stood transferred to the Revenue side clearly proves that Scheme No,331/1 involving 8 Kanals, 7 Marlas land of Khasra Nos.36/21/2, 65/1/3, 65/10/1, 66/3/1/ and 66/3/2 was created with the consent of both the parties. Had it not been so, how is it believable that claiming'his turbine in this land, the respondent remained in dark for almost four years and in 1996 it suddenly dawned on him that the scheme had been kept common between him and the appellant. The Scheme having been kept common due to the existence of an expensive turbine jointly installed by the appellant and the respondent in the land of their co-ownership under the previous Khasra No,1, the fact of the turbine having been installed jointly by them stands admitted by the learned counsel for the respondent in his arguments. On the other hand, in the memorandums of the appeal and the revision petition filed by the respondent before the Collector, Consolidation and the Additional Commissioner (certified copies brought on the record of this case), he had taken a contradictory stand and had claimed that the turbine had been installed by him exclusively. Conversely in the pleadings made on his behalf before the Additional Commissioner, this stand was contradicted by his learned counsel who asserted that the turbine had been jointly installed by the two parties. Similarly, while in the memorandums of his appeal before the Collector and the revision petition, the respondent had taken the stand that Scheme No,331/1 was got approved by Sawan clandestinely by keeping him in dark, in his argument before the Additional Commissioner, the learned counsel for the respondent took a stand to the contrary by asserting that the respondent and the appellant were co-owners in Scheme No,331/1 {{URDU TEXT}} and that Sawan (the present appellant) had received Rs,2 lacs of his share in the turbine. This assertion clearly connoted that the creation of Scheme No,331/1 as a joint scheme was with the consent of both the parties. Contrary to the stand taken in the appeal before the Collector Consolidation for asserting claim on the disputed land of Khasra Nos.66/3/1 and 66/3/2, before the Additional Commissioner, the respondent came up with a different basis for the said claim i.e, that the appellant having received the cost of his share in the turbine, the disputed land may be allocated to him i.e, the respondent.
8. Thus, while the hollow and bogus claim of the respondent stood falsified by his own contradictory stands and while his request was badly time-barred as he had come up against the order of the Consolidation Officer after an inordinate and uncondonable delay of over 3 years and 6 months, it is understandable as to under which dictum of law or justice, the Additional Commissioner acceded to his unlawful demand.
9. ' Besides, on the very face of it, the demand of the respondent for allocation to him of the more valuable land of Common Scheme No,311/1 and in lieu allocation of alternate land to the appellant from the distantly located and inferior land of Scheme No,331 owned exclusively by the respondent was totally meritless and unlawful. On the other hand, while this demand was made in the memorandum of the revision petition before the Additional Commissioner, a contradictory plea was made by the leaned counsel for the respondent in his arguments before the Additional Commissioner. Therein, he asserted that the appellant had sold his whole share from the Common Scheme No,331/1. If it was so, then on what grounds it was prayed in the memorandum of the revision petition that the appellant be allocated alternate land of Khasra Nos.66/24/1 and Khasra No,66/25/2 by withdrawing the same from Scheme No,331 exclusively owned by the respondent.
10. ' Thus, while the demand of the respondent had no merits and legality at all and while it was based on self-contradictions and shifting of stands one after the other, the same was unlawfully acceded to by the Additional Commissioner (Consolidation), D.G. Khan Division who allocated 4 Kanals, 10 Marlas valuable land to the exclusive Scheme of the respondent i.e, Scheme No,331 by withdrawing the same from the Common Scheme No,331/1 of the two parties. However, the Additional Commissioner explained nothing to substantiate this decision. How could he do it when there was absolutely no rationale for the same. Resultantly, the impugned order of the Additional Commissioner is totally devoid of any footing, logic or justification. This order was ridiculous even on the account that in lieu of the said land withdrawn from Common Scheme No,331/1 and allocated to the respondent, 4 Kanals, 10 Marlas land of Khasra Nos.66/15/2, 66/16/2/ and 66/25/1 was withdrawn from the exclusive Scheme of the respondent i.e, Scheme No,331 and allocated to the Common Scheme No,331/1. Thus, the petitioner's totally unlawful and unjustified demand of obtaining the highly valuable land situated on the Indus Highway was acceded to by the Additional Commissioner. Presumably, even if the Additional Commissioner had relied on the plea of the respondent about sale of land from the Common Scheme No,331/1 by only the appellant, even then there was absolutely on justification for acceding to the unlawful demand of the respondent. On the other hand, while this plea was made without any supporting proof, had it been correct then corresponding shortfall in the area of Scheme No,331/1 was to occur and in such a case the Additional Commissioner was required to reduce the area of Scheme No,331/1. However, nothing of this sort was done by him, and on the other hand, he simply exchanged 4 Kanals, 10 Marlas highly valuable land of Common Scheme No,331/1 with equivalent but inferior and distantly located land of Scheme No,331 owned exclusively by the respondent. By doing this, while the Additional Commissioner kept the extent of the area of both the schemes unchanged, through his dirty tactics, he outrightly benefited the respondent to the extreme determent of the appellant by allocating to the former the 4 Kanals, 10 Marlas highly valuable land of Khasra Nos.66/3/1 and 66/3/2 covered by the irrigational facility of the common installed turbine and situated on the Indus Highway by withdrawing the same from the joint ownership of the two.
11. Similarly, if it is presumed that the Additional Commissioner acted on the plea of the respondent that the petitioner had received money for his share in the turbine, while this plea was unsubstantiated by any proof, for the foregoing reasons, on this ground as well, the petitioner could not be deprived of his lawful rights in the more valuable land of Scheme No,331/1. Thus, while on no account the respondent was entitled to exclusively obtain any portion from the precious land of Common Scheme No,331/1, acting in a totally dishonest and highhanded manner, the Additional Commissioner allocated him 4 Kanals, 10 Marlas area from the said land.
12. ' In view of what has been discussed above, the impugned order of the Additional Commissioner having been passed in total disregard of law and the dictates of justice, the same is unsustainable under law and is accordingly set aside.