The orders dated 18.5.1999 passed by the Additional Deputy Commissioner (General)/Collector, Lahore City has been assailed in this Constitutional petition which arises out of the following circumstances.
2. The two petitioners herein purchased total land measuring 5 marlas each through two sale- deeds out of Khasra No, 2020/691 and 1063/696 registered on 25.5.1999 and 28.5.1999 respectively from Mian Mehmood-ur-Rashid and Mst. Nasreen Gul followed by Mutations Nos, 8580-8581, 8582 and 8583 attested on 26.7.1999. The dispute in this case relates to land in Khasra No, 1063/696 out of which the petitioners had purchased 7 marlas of land. Their case is that they had raised construction of one room one shop, a kitchen and bath room on the aforesaid land.
3. Meanwhile on 3.3.1997 and 16.1.1996 Mst. Nasreen Gul Respondent No, 5 made application before the D.C./Collector, Lahore for demarcation of her plot. According to the first demarcation report dated 16.12.1996, on the plot of Respondent No, 5 one Mst. Fozia Saleemi wife of Nazir Ahmed was in possession who was owner of land measuring 3 Kanals. This demarcation report remained inconciusve. According to the second demarcation dated 5.3.1997 it was reported that no area of Khasra No, 1063/696 was vacant, the vendees were in possession of some area while a part of it was under the streets. Another demarcation was done by a retired (Naib Tehsildar) as Local Commission. According to his report dated 23.5.1997, no area/plot was vacant on the spot. The last demarcation was conducted by Naib Tehsildar City on 26.2.1999. According to this report one Muhammad Rafique Shad, was in possession of the land of Respondent No,
5. It was recommended that possession of the said land should be delivered to Respondent No, 5 under Rule 67-B of the Punjab Land Revenue Rules. The Tehsildar, Lahore City, vide order dated 6.3.1999 consigned the file to the record room with the observation that the demarcation had already been done. Based on the aforesaid order, the learned Additional Deputy Commissioner (General)/Collector, vide order dated 18.5.1999, directed Muhammad Rafique Shad to deliver possession to her within a period of 30 days. However, on 26.6.1999, the petitioners were ejected by the revenue officer. The petitioners filed an appeal against the order dated 18.5.1999 which was dismissed by the learned Additional Commissioner vide order dated 28.12.1999.
4. The primary contention of the learned counsel for the petitioners is that the revenue authorities had no jurisdiction to direct ejectment of the petitioner from the disputed property because according to the demarcation reports, the entire area had been built upon and thus had ceased to be "land" for the purpose of the Punjab Land Revenue Act", and Section 3 thereof excludes applicability of the said Act to such an area. It is next submitted that perusal of various demarcations reports shows that seriously disputed questions of fact were involved for which summary jurisdiction of ejectment of the petitioners could not at all be exercised by the learned Collector. It is further submitted that Mst. Nasreen Gul had only purchased 10/308 share in Khasra No, 1063/696 and, was, thus not entitled to possession of specific area without getting specific area, determined in a partition suit. He next maintains that the land owner from whom the petitioners had purchased the land i,e, Mst. Nasreen Begum was the prior vendee than Mst. Nasreen Gul, Respondent No, 5, who derived title through a subsequent vendee.
5. The learned counsel for Respondent No, 5, submits that even according to the application dated 31.3.2000 filed by Rehmat Ali-petitioner, he was defrauded by Mst. Nasreen Begum, and a prayer was made to the Deputy Commissioner for restoration of the plot or the price thereof. This application did not refer to the construction allegedly made by the petitioners on the spot. It is next maintained that Respondent No, 5 has already filed suit for perpetual injunction' while the petitioners have also filed suit for prohibitory injunction and, therefore, the writ petition is not maintainable as the resolution of the controversy involves factual inquiry which can more appropriately be done by the Civil Court. As to the jurisdiction of the revenue authorities for conducting demarcation under Rule 67-A of the Punjab Land Revenue Rules, he maintained that during pendency of this writ petition the petitioners also got the plot demarcated by getting an ex- parte report from the revenue agency against which the said respondent has filed an appeal. He next submitted that the basic order was passed by the Additional Deputy commissioner on 18.5.1999 whereas the petitioners had purchased the land in dispute on 25.5.1999 & 28.5.1999.
Therefore, on the date of the aforesaid order, the petitioners were not necessary party to the applications brought by Respondent No, 5 before the learned Collector. He maintains that against the order dated 28.12.1999 of the learned Additional Commissioner, the petitioners should have approached the Board of Revenue instead of resorting to the Constitutional jurisdiction of this Court. Reliance was placed on Allah Bakhsh and another vs. Muhammad Ismail and others (1987 SCM R 810).
6. I have considered the submissions made by the learned counsel for the parties and have perused the record. Vide order dated 1.10.2001, the District Officer Revenue, Lahore was directed to produce the record. On 10.6.2003 detailed separate statements of the transactions made from Khasra Nos, 1063/696 and 2020/691 have been placed on the record. A perusal thereof shows that one Din Muhammad had purchased the entire area measuring 15 kanal 8 marlas of the Khasra Number 1063/696 from one Karamat Ali on 19.4.1961 through a registered sale-deed on which Mutation No, 706 was attested in his favour on 23.11.1962. From 19.8.1981, onwards said Din Muhammad started making alienations from the aforesaid Khasra number which included sale of 17 marlas in favour of Mst. Nasreen Begum on 19.8.1981 and 24 marlas in favour of Mst. Jamila Begum on 10.11.1981, both through registered sale-deeds. On 14.7.1982 Mst. Jamila Begum sold 21 marlas to Muhammad Usman and on 13.8.1986, vide registered sale-deed, said Muhammad Usman sold land measuring 10 marlas in favdur of Mst. Nasreen Gul Respondent No, 5 followed by Mutation No, 6559 attested on 11.10.1986. Nasreen Begum sold land Measuring (3/1) marlas each to the two petitioners from Khasra No, 1063/696 vide registered sale-deeds dated 25.5.1999 and 28.5.1999. As far as Mehmood Rashid, the other vendor from whom the petitioners had purchased the land is concerned, Jhandoo etc. had, vide registered sale-deed dated 8.5.1990, sold an area measuring 13 marlas from Khasra No, 2020/691 to Mehmood-ur-Rashid who had sold one and half marla each from the said Khasra number in favour of the two petitioners. As noted above, land of Khasra No, 2020/691 is not in dispute.
7. Perusal of the statement in respect of Khasra No, 1063/696 shows that till 10.11.1981 Din Muhammad, the first vendee from Karamat Ali had already sold an area measuring 15 kanals 18 marlas (as against his title to 15 kanals 8 marlas) in favour of different vendees, including Mst.
Nasreen Begum and one Jamila Begum. However, as noted above registered sale-deed dated 10.11.1981 in favour of Jamila Begum was later in point of time than the registered sale-deed dated 19.8.1981 in favour of Mst. Nasreen Begum. The petitioners derived title to the land in Khasra No, 1063/696 through Mst. Nasreen Begum while Mst. Nasreen Gul-Respondent No, 5 claimed through Mst. Jamila Begum. Mst. Nasreen Begum was the prior vendee than Mst. Jamila Begum as far as the land in Khasra No, 1063/696 is concerned. On this score alone the Revenue Officer had no jurisdiction to eject the petitioners. The matter does not end here.
8. According to the certified copy of the report of demarcation 16,12.1996 Mst. Nasreen Gul had purchased a plot of 10 marlas which was described by boundaries: However, according to Mutation Nos, 6298, 10/308, share of the land in Khasra No, 1063/696 was transferred in favour of Mst.
Nasreen Gul, who had never entered into possession of the plot purchased by her, the entire area was built upon, and according to the boundaries given in the registered sale-deed plot of Respondent No, 5 was situated on the edge of the Nullah which was in possession of one Mst. Fozia Saleemi. It may be noted that said Mst. Fozia Saleemi had purchased an area measuring 1 kanal from the aforesaid Khasra Number from one Muhammad Iqbal through registered sale-deed dated 17.7.1983 while Muhammad Iqbal had purchased the area of one Kanal from Din Muhammad, through registered sale-deed dated 14.9.1981. Mst. Fozia aforesaid had purchased another area measuring 2 kanals through registered sale-deed dated 11.7.1988 from Shaukat Ali who had purchased it from Din Muhammad vide registered sale-deed dated 14.9.1981.
9. According to the demarcation report dated 5.3.1997 of the Naib Tehsildar, the applicant (Nasreen Gul) may contract her vendor to get the land measuring 10 marlas from his remaining holding or to take appropriate proceedings before the Court and that the application may be consigned to the record. On this report, the learned Collector, directed Revenue Officer to conduct another demarcation. The order dated 7.5.1997 of the Tehsildar, Lahore City, shows that with the consent of Respondent No, 5, Barkat Ali retired Naib Tehsildar was appointed as Local Commission. According to his report dated 23.5.1997, the plot of Respondent No, 5 was towards the Nullah as identified by her, there was a boundary wall constructed by Mst. Fozia Saleemi and adjacent to it one Ch. Rehmat Ali, property dealer, was in possession of land measuring 10 marlas who had also constructed a boundary wall. He also reported that land from Khasra No, 1063/696 was covered either by boundary walls or the houses. On this report the Revenue Officer i,e, the Tehsildar on 9.9.1997, directed that demarcation should be carried out in accordance with the boundaries i,e, given in the sale-deed or the "Tattima Shajra". Thereafter Respondent No, 5 could have recourse to the appropriate proceedings for recovery of possession.
10.This time the demarcation was conducted by Naib Tehsildar City, Lahore. According to his report dated 26.2.1999, a vacant plot of land in the aforesaid Khasra No, was in possession of Abdul Ghafoor s/o Rehmat Ali. For the first time before him, it was stated that one Rafique Shad was in possession of the plot of Respondent No,
5. He was summoned by the Naib Tehsildar but he did not appear before him. This report was placed before the Tehsildar Lahore City on 6.3.1999 on which the order passed was that demarcation has been done and the file be consigned to the record. On the basis of the said demarcation, the learned ADC(G)/collector. Lahore city passed the order dated 18.5.1999 under Rule 67-B of the Punjab Land Revenue Rules, 1968. Perusal of the report dated 23.5.1997 of the retired Naib Tehsildar (Local Commission) shows that Mst. Nasreen Gul had pointed out the plot which was in possession of Mrs. Fozia Saleemi and it was on the basis of the oral assertion of some persons who appeared before the Naib-Tehsildar in the last demarcation proceedings came to the conclusion that Muhammad Rafique Shad was in possession of the plot of Respondent No,
5. The oral assertion before the Naib Tehsildar is inconsistent with the earlier reports of demarcation. In any case the question was whether in the facts and circumstances of the case the revenue officer, while exercising summary jurisdiction under the Punjab Land Revenue Rules could at all direct eviction of the petitioners. The plain answer is in the negative. In fact, it is a case in which Revenue Officer, while exercising summary jurisdiction under the Punjab Land Revenue Rules, exercised the jurisdiction of a Civil Court by granting to Respondent No, 5, a decree for possession which could not at all be done and as recorded in the order dated 9.9.1997 of the Revenue Officer, Respondent No, 5 should have been left to seek appropriate remedy from the Court of competent jurisdiction.
11.The perusal of the record shows that although Mst. Nasreei, Gul, Respondent No, 5 had purchased a plot described only by the boundaries yet, the mutation sanctioned in her favour only reflected transfer of 10/308 share. Demarcation under the Punjab Land Revenue Rules 1968 could only be done on the basis of the entries in the revenue record. According to the revenue record no specific area of Khasra No, 1063/696 was B purchased by Respondent No, 5, therefore, the revenue authorities had no jurisdiction because a share of a Khasra number could not be demarcated nor it is capable of actual physical possession except through partition.
12. The objections of the learned counsel for the contesting respondent have been considered. In fact the learned A.D.C.(G)/Collector usurped the jurisdiction of the Civil. Court. Thus, it is a case of total absence of jurisdiction and in such a case availability of alternate remedy or pendency of civil suits filed by the parties does not stand in the way of this Court to exercise discretionary Constitutional jurisdiction and thereby rectifying patent injustice done to the petitioners.
13.Accordingly, this writ petition is allowed. The impugned orders of the Collector and the Additional Commissioner are declared as without lawful authority and the successor in office of the A.D.C.(G)/Collector City, Lahore is directed to restore possession of the area to the petitioners from which they were evicted under the order dated 18.5.1999.