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1999 S C M R 168

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Munawar Ahmed Mirza and Ch. Muhammad
Arif, JJ

Mst. RAZIA JAFAR --- Petitioner

versus

GOVERNMENT OF BALPCHISTAN and others --- Respondents

Civil Petition No.815 of 1998, decided on 8th October, 1998.

(On appeal from the judgment dated 30-4-1998 passed by the High Court of Balochistan,
Quetta in C.P. No.509/97).

West Pakistan Land Revenue Act (XVH of 1967)--

---- Ss. 40 & 116 --- Constitution of Pakistan (1973), Arts, 185(3) & 199)--Notification
--- Legality --- First settlement was prepared long ago --- Board of Revenue issued
Notification under S. 116 of West Pakistan Land Revenue Act, 1967 directing that survey
and settlement of all unmeasured lands in the District be carried out and record of rights
prepared --- By notification issued under S.40 of West Pakistan Land Revenue Act, 1967
subsequently Settlement Officer, was allowed to carry on settlement --- Petitioner who
was purchaser of land in the area having been adversely affected by such process,
challenged same in Constitutional petition before High Court but same was dismissed---
Validity---Rights of petitioner duly recorded by Competent Authorities according to law,
having been affected from date of issuance of the notification, leave to appeal was
granted to consider question raised in relation to undoing of entire process of survey and
settlement with effect from date of issuance of notification in question.

Karachi Metropolitan Corporation, Karachi v. Messrs S.N.H. Industries (Pvt.) Limited,


Karachi and 2 others 1997 SCMR 1228 ref.

M. Ashraf Khan Tanoli, Advocate-on-Record for Petitioner Nemo for Respondents.

Date of hearing: 8th October, 1998.

ORDER

CH. MUHAMMAD ARIF, J. ---Leave is, claimed against judgment dated 30-4-
1998 passed by a learned Division Bench of the High Court of Balochistan whereby
Constitution Petition No.509 of 1997 brought by the petitioner was dismissed with the
result that her claim to various parcels of agricultural land, acquired by her through
purchase from previous owners or by adhering to the process of 'Nautor' in respect of
unmeasured lands situated in proximity to the lands purchased by her as above, was
denied and order dated 13th September, 1997 passed by the Board of Revenue,
Balochistan, in Review Application No. 17 of 1997, was upheld.

2. It is pleaded that the petitioner had purchased some parcels of land located in Mouza
Saddat Khushkaba, Tappa Shadenzai, Tehsil Quetta which were entered in the names of
the previous owners. After the purchase of lands, appropriate mutations were attested in
her favour on 10-10-1990, 12-2-1991, 18-5-1991 and 26-9-1991 and she was put in
possession thereof. The purchase of this 'ownership land' was spread over 20 survey
numbers and, except for the area which had been acquired from her and had been brought
under the link road, she is the owner of the same.

3- Khasra Nos.103, 104, 106, 107, 1160, 1161 and 1083 adjoin ownership land'; were
'Ghair Munikin Ragha' and were acquired through processor Nautor'. This process
succeeded the acquisition of rights by the petitioner in 'ownership land' above. Nautor'
lands were also mutated in her favour.

4. It appears that the first settlement of Quetta Tehsil was prepared in the year 1908 and
redone in 1944-45. The respondent-Board issued couple of Notification on 28-10-1986,
under section 116 of the West Pakistan Land Revenue Act, 1967, hereinafter referred to
as the Act of 1967), on 8-11-1987 (under section 40 of the Act of 1967), and 16-12-1991
(under section 116 of the Act of 1967) to direct that survey and settlement of all
unmeasured (Baroon-as line/ ) land in Quetta District be carried out and record of rights
prepared. Later, by Notification dated 12-11-1992 (under section 40 of the Act), the
Settlement Officer, Quetta was allowed to carry on settlement under section 40 of the Act,
as already directed in Notifications dated 8-11-1987 and 16-12-1991.

5. Settlement record was prepared by the Settlement Officer in 1989 and both, 'ownership
land' and 'Nautor', were duly reflected in the same, However, with a view to reviewing
the work of settlement operation, a meeting was held on 18-12-1994 under the
Chairmanship of Senior Member, Board of Revenue in which MBR II/Mr. Muhammad
Af7al and Deputy Commissioner, Quetta participated. The issue of transfer of land to
Zarnindars on the basis of 'Nautor' was considered. It was decided that the Settlement.
Officer, Quetta shall supply all documents to the Deputy Commissioner for scruit1hy and
action for seeking redress of irregularities of transfers by resorting to judicial proceedings
at higher forums. The requisite material was supplied by the Settlement Officer to the
Commissioner, Quetta Division, Senior MBR and Deputy Commissioner, Quetta on 12-1-
1995. Contrary to the decision dated 18-12-1994, the respondent MBR 11 issued
Notification dated 6-12-1995 directing cancellation of all titles, rights, interests acquired
directly or indirectly through the process of settlement work undertaken under
Notifications dated 28-10-1986 and 8-11-1987 and for resumption of State land, in
accordance with the relevant record prior to issuance thereof.
6. The petitioner filed C.P. No.73 of 1996 before the High Court on 21-3-1996 against
respondent-Government through Secretary, Revenue and MBR. Deputy Commissioner,
Quetta joined as intervener and filed counter affidavit dated 18-11-1996. During the
pendency of C.P. No.73 of 1996 it was stated by the then learned counsel for the
respondents that on 26-2-1997 a judicial order had been passed by respondent MBR III in
favour of the petitioner and therefore, the said C.P. had been rendered infructuous which
was filed accordingly, when petitioner made a C.M. to that effect in the said C.P. No.73
of 1996, successfully reserving her right to file another, as and when necessary. This
happened on 6-5-1997.

Present dispute

7. The Senior Member, Board of Revenue, under signatures of the Deputy Commissioner,
filed an application before the Senior MBR seeking review of orders dated 26-2-1997 of
MBR 111. This was accompanied by another application under section 5 of the
Limitation Act, 1908. Both, the review petition and the application under section 5 of the
Limitation Act, were contested with the contention that the Deputy Commissioner was
not 'Government' therefore, his resort to the remedy was incompetent. The
objections/arguments in respect of maintainability of the review petition were heard by
the same learned Members of the Board of Revenue, Balochistan, namely, Syed
Muhammad Hussain, Senior Member and Muhammad AfzaI, MBR 11, and rejected by
interim order dated 13-9-1997. After the dismissal of C.P. No.73 of 1996 as withdrawn by
order dated 12-5-1997, the petitioner submitted application in the High Court of
Balochistan on 6-6-1997, seeking restoration of the said C.P., but the same was dismissed
on 3-9-1997. This necessitated the institution of C.P. No.509 of 1997, out of which the
instant petition for leave has arisen.

8. Mr. M. Ashraf Khan Tanoli, learned Advocate-on-Record for the petitioner, has
objected to the impugned judgment dated 30-4-1998 by contending that neither section 5
of the Limitation Act is applicable in relation to the submission of review petition in
question under section 8 of the Board of Revenue Act (No.XI of) 1957 nor the order
dated 13-9-1997 deals with the prescribed conditions for undertaking a review under
section 8 of the Act of 1957 by the Board. He was also critical of the order dated 13-9-
1997, having been made by resorting to the process of rehearing of the entire matter
without even so much as referring to any mistake or error of law or fact being apparent
on the face of the record. According to the learned AOR, the resolution of intricate
questions of fact has been gone ahead in prima facie, incompetent proceedings and that
too without issuance of any show-cause notice to the affected parties at a stage when 3rd
party interests had matured into vested rights during the interregnum. The very issuance
of Notification dated 6-12-1995 by MBR 11 was objected to by referring to Karachi
Metropolitan Corporation, Karachi v. Messrs S.N.H. Industries (Pvt.) Limited, Karachi
and 2 others (1997 SCMR 1228), in support of the plea that Notifications cannot take
effect unless and until the same are published in the official Gazette in terms of section
2(41) of the West Pakistan General Clauses Act (No.VI of 1956). In this particular case
the Collector, Printing and Stationery Department, Government of Balochistan, Quetta
has issued Certificate No.886, dated Ist August, 1998 to the effect "that the Notification
No. 180-14/93/Rev. dated Quetta the 6th-December, 1995 issued by Muhammad Afial,
Member-11, Board of Revenue has not yet been published in the Official Gazette of
Balochistan."

9. The questions raised in relation to the undoing of the entire process of survey and
settlement with effect from 28-10-1986 by denuding the persons, similarly placed as the
petitioner, of their rights duly recorded by the competent authorities according to law
without any one of the public functionaries being accused of any malpractice whatsoever
in the completed process of survey and settlement in Tehsil Quetta, excluding Quetta-
Town, for acquisition of rights by purchase and by process of 'Nautor' , which is
inextricably linked with ownership rights, need examination. Accordingly, we grant leave
to consider the above questions with permission to the parties to place on record
additional documents.

10. Status quo, as obtaining on the spot, shall be maintained during the pendency of the
appeal.

H.B.T./R-31/S Leave to appeal granted.


1990 M L D 1907

[Lahore]

Before Fazal Karim, J

MUHAMMAD BASHIR--Petitioner

Versus

LAL DIN and others--Respondents

Civil Revision No. 2291 of 1989, heard on 21st May 1990.

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----Ss. 122, 116, 117 & 118---Powers of Collector to order removal of construction
Assistant Commissioner, in his capacity as Collector is competent to order demarcation
of Khasra number and after carrying out the demarcation proceedings direct the
demolition of a part of the house which was found to stand wrongly in the said Khasra
number.

(b) West Pakistan Land Revenue Act (XVII of 1967)---


----S.172---Exclusion of jurisdiction of Civil Court---Eviction of a person who had
encroached upon a certain Khasra being a matter which the Collector was empowered by
the Act to dispose of, suit before Civil Court was expressly barred---Such suit did not lie
because before invoking the Civil Court's jurisdiction, the plaintiff had not availed
himself of the remedy of appeal and revision under the Land Revenue Act,
1967.--[Jurisdiction].

Mian Muhammad Latif v. Province of West Pakistan P L D 1970 S C 180 and Abdul Aziz
v. Arif Ali P L D 1978 Lah. 441 ref.

Ali Ahmad Malik for Petitioner.

Ch. Ghulam Rasool Sindhu for Respondent No.l.

Nemo for Respondent No.2.

Date of hearing: 21st May, 1990.

JUDGMENT

By this revision petition, under section 115 of the Code of Civil Procedure, the plaintiff,
Muhammad Bashir, seeks the revision of the judgment and decree of the learned
Additional District Judge, dated 28-10-1989, by which and decree of the learned Civil
Judge, Sialkot, dated 25-10-1987, judgment dated 25-10-1987, all District Judge, by
accepting.

2. The suit of the plaintiff, Muhammad Bashir, was a suit for a perpetual injunction
restraining the defendant, Lal Din, and the Assistant Commissioner, Sialkot, from
dispossessing him unlawfully and forcibly from a part of his house in pursuance of the
Assistant Commissioner's order, dated 22-5-1986. It was said that Lal Din, defendant, had
made an application before the Assistant Commissioner praying for the demarcation of
Khasra No. 358 and the Assistant Commissioner had after carrying out the demarcation
proceedings, by his order dated 22-5-1986, directed the demolition of a part of the
plaintiff's house, that part having been found to stand on Khasra No. 358. Khasra No.
358, it appears to be common ground between the parties, was a passage. It was the
plaintiffs case that the order of the Assistant Commissioner, dated 22-5-1986, was against
law, without jurisdiction and collusive. The facts, basis of those allegations, were
however not mentioned in the plaint. Lal Din, defendant, contested the suit by filing a
written statement; according to him the plaintiff had trespassed into a part of Khasra No.
358 by raising construction and this he had no right to do. It was pleaded that he had not
come to Court with clean hands and was therefore, not entitled to the protection of the
Court. According to the defendant, the demarcation proceedings had been carried out in
accordance with law and the Assistant Commissioner was fully competent to make the
order dated 22-5-1986.

3. On the parties' pleadings, the learned Civil Judge, formulated the following issues:--

(1) Whether the order dated 22-5-1986 was collusive between the defendants and as such
is liable to be set aside? OPP.

(2) Whether the plaintiff is owner-in-possession of the suit property? OPP

(3) Whether the suit is not maintainable in its present form? OPD

(4) Whether the suit property is a public way? OPD.

(5) Whether the plaintiff has not come to the Court with clean hands? OPD.

5-A. Whether the report of the Local Commissioner is liable to be set aside? OPP.
(6) Relief.

For the purpose of demarcation. Abdul Shafiq, Tehsildar, Sialkot (D.W.4) was appointed
as Local Commissioner. He stated that he had served notices upon the parties,
Muhammad Bashir, plaintiff and Lal Din., defendant, for the date he inspected the spot
and carried out the demarcation; that the plaintiff had refused to accept notice and that he
had demarcated the boundaries of Khasra No. 358 and made report, EX.D.1, He also filed
with his report copy of Aks Shajra. Ex. D.2. It also appears that on the application of Lal
Din, the Naib-Tehsildar. Sialkot, had carried out demarcation of Khasra No. 358 on
9-3-1986; that he had found that the plaintiff had encroached upon a part of Khasra No.
358. After the receipt of the Naib-Tehsildar's report the Assistant Commissioner in his
capacity of Collector, issued notices to the plaintiff and other persons who too, according
to the Naib-Tehsildar's report, dated 9-3-1986, had encroached upon Khasra No. 358. The
plaintiff had appeared before the Assistant Commissioner and made a statement that if
Feroz Din, a brother of Lal Din, defendant, removed the encroachment on a part of
Khasra No. 358 and that the other encroachers also removed their encroachment, he
would be prepared to remove the encroachment provided Lal Din, defendant, paid him
Rs. 50,000. Lal Din's statement was also recorded and it was then that the Assistant
Commissioner had made the order, dated 22-5-1986.

4. The Local Commissioner appointed by the learned Civil Judge had also found that the
plaintiff had encroached upon a part of Khasra No.358.

5. The learned Civil Judge found that the plaintiff was not present when the Local
Commissioner had carried out the demarcation; he also noticed that the Local
Commissioner had "fixed two undisputed points for demarcating the disputed property.
Whereas he was required to demarcate the property from three undisputed points." He,
therefore, thought that the Local Commissioner's report (EX.D.1) was not reliable and
was liable to be set aside. On issue No. 4, the learned Civil Judge found that Khasra No.
358 is a public passage. Defendant had failed to prove that the disputed property was part
of Khasra No. 358. As to the Naib-Tehsildar's report, dated 9-3-1986, (Mark 'B'), the
learned Civil Judge was of the opinion that report "has not been proved formally by
examining the concerned witnesses, therefore, it cannot be considered in evidence". The
finding recorded by the learned Civil .fudge on issue No. 1 was that the order of the
Assistant Commissioner, dated 22-5-1986 (Ex.P.2) had been made by the Assistant
Commissioner after "obtaining the report of demarcation of the disputed property". In his
opinion, however, even if the constructions raised by the plaintiff were unlawful "the
defendant No.2 was not authorised to order for the demolition of the constructions
because only a Civil Court is competent to make such orders." In his view "even if the
entire evidence produced by the plaintiff be excluded from the record, the disputed order
stands void because the defendant No.2 was not competent at all to make an order for the
removal of the constructions and the proper course for the defendant was to seek his
remedy through a civil suit".

6. In reversing the order of the learned Civil Judge, the learned Additional District Judge
held that the plaintiff had not produced any evidence "that he is owner of suit property";
that it was proved that Khasra No.358 was a passage; and that the learned Civil Judge
was not justified in setting aside the Local Commissioner's report, Ex.D.2, for the
plaintiff had served and had not appeared before the Local Commissioner. In the view of
the learned Additional District Judge the finding of the learned Civil Judge, that the
report of the Local Commissioner was not in accordance with law, was not justified
"because two demarcations were made, one by the Revenue Department and second by
the Local Commissioner, appointed by the Court and the result of these demarcations is
the same that the plaintiff respondent No.l has encroached upon a thoroughfare upto 9
karam x 2 karam. "The learned Additional District Judge concluded that as the plaintiff
had failed to prove that he was owner of the suit land, he cannot get the decree prayed for
because law does not help the usurper".

7. It appears that neither the learned Civil Judge nor the learned Additional District Judge
had his attention called to the provisions of Chapter X of the Punjab Land Revenue Act,
1967. That chapter provides for surveys and boundaries. By its section 117,"a Revenue
Officer may, for the purpose of framing any record or making any assessment under the
Act or on the application of any person interested, define the limits of any estate, or of
any holding, field or other portion of an estate, and may, for the purpose of indicating
those limits, require boundary marks to be erected or repaired." Section 118 provides that
"when any land is being surveyed in pursuance of rules under section 116, any Revenue
Officer directing the survey may, by notice or proclamation, require all persons having
rights or interests in the land to attend personally or through authorised agent, and
indicate, within a specified time, by temporary marks of a kind to be described in the
notice or proclamation, the limits of those rights or interests." Section 122 is important. It
enacts that the settlement of a boundary under any of the foregoing .provisions of Chapter
X "shall, subject to the provisions of Chapter XIII, (which chapter provides for appeals,
reviews and revisions) be determinative (a) of the proper position of the boundary line or
boundary marks, and (b) of the rights of the land-owners on either side of the boundary
fixed in respect of the land adjudged to appertain, or not to appertain, to their respective
holdings," It further provides that "where a boundary has been so fixed, the Collector
may, under rules to be framed in this behalf by the Board of Revenue with the previous
approval of Government, evict any land-owner who is wrongfully in possession of any
land which has been adjudged in the settlement of a boundary not to appertain to his
holding.
8. Reference may also be made to section 172 of the Punjab Land Revenue Act, 1967; it
excludes the jurisdiction of the Civil Court "in any matter which Government, the Board
of Revenue, or any Revenue Officer, is empowered by this Act to dispose of, or take
cognizance of the manner in which Government, the Board of Revenue, or any Revenue
Officer exercises any powers vested in it or him by or under this Act".

9. Now the dispute between the parties was whether the plaintiff's construction stood on a
part of Khasra No. 358. The parties were not at issue on the point that Khasra No.358 was
a public passage; this fact was fully borne out by the entries of the record of rights also.
The dispute being as to the limits of Khasra No.358, it obviously lay within the
jurisdiction of the Revenue Officer under section 117. The plaintiff did say in his plaint
that the order of the Assistant Commissioner, dated 22-5-1980, was without jurisdiction
and illegal; he did not, however, mention the grounds going to the validity of the order. In
his statement as P.W.4, Muhammad Bashir, plaintiff, admitted that the defendant had
approached the Assistant Commissioner for defining the limits of khasra No.358 and that
the Tehsildar had visited the spot. He, however, denied that any demarcation had taken
place or that he was present at the time of demarcation. His statement appeared to receive
a lie from the report of the Naib-Tehsildar, dated 9-3-1986, which shows that he and the
defendant, Lal Din, and many others were present when the Naib-Tehsildar had
demarcated khasra No.358 and had found that the plaintiff and a number of other persons
had encroached upon khasra No. 358. After having received the Naib-Tehsildar's report,
dated 9-319,36, the Assistant Commissioner issued notice to the plaintiff and others and
before him in his statement (Ex.D.6) Muhammad Bashir, plaintiff, had agreed to remove
the encroachment if others agreed to do so. The Naib-Tehsildar's report dated 9-3-1986
was part of the official record and was admissible in evidence without formal proof and
the learned Civil Judge was wrong in excluding it from consideration. It is also plain
from the provisions of sections 116,117,118-and 122 of the Land Revenue Act that the
Assistant Commissioner, in his capacity of Collector, was competent to make the order,
dated 22-5-1986. It follows, therefore, that the learned Civil Judge's view that the
Collector was not competent to make that order, was not correct.

10. It is noteworthy that in the repealed Punjab Land Revenue Act, 1887, Section 101,
there was power in the Revenue Officer, on the application of any person interested, to
define the limits of any estate or of any holding, field or other portion of an. estate but
there was no provision in that Act such as Section 122 of the 1967 , Act, declaring that
the settlement of a boundary under the provisions of Chapter X thereof shall be
determinative (al of the proper position of the boundary line or boundary marks, and (b)
of the rights of the land-owners on either side of the boundary fixed in respect of the land
adjudged to appertain, or not to appertain, to their respective holdings or empowering the
Collector to evict any land-owner "who is wrongly in possession of any land which has
been adjudged in the settlement of a boundary not to appertain to his holding or to the
holding of any person through or under whom he claims." Had the learned Civil Judge
had his attention invited to the provisions of Section 122, he would not have held, as he
did, that the Collector was not competent to "make an order for the removal of the
constructions and the proper course for the defendant was to seek his remedy through a
civil suit".

11. The plaintiff's suit, it further appears, was expressly barred, by Section 172 of the
Land Revenue Act, for the matter of eviction of the plaintiff, as a person who had
encroached upon khasra No. 358, was a matter which the Collector was empowered by
the Act to dispose of. Even if the suit was not 1 expressly barred, it did not lie because
before invoking the Civil Court's jurisdiction, the plaintiff had not availed himself of the
remedy of appeal and revision under the Land Revenue Act. See Mian Muhammad Latif
v. Province of West Pakistan P L D 1970 Supreme Court 180 and Abdul Aziz v. Arif Ali P
L D 1978 Lah. 441.

12. In this view of the matter, I do not think that it is necessary to decide the question
whether the Local Commissioner's report was rightly set aside.

13. Consequently, the revision petition is dismissed but as the ground on which the
revision petition fails is different from the ground on which the learned Additional
District Judge had dismissed the appeal, the parties are left to bear their own costs.

M.B.A./M-2123/L Revision dismissed.


1989 C L C 1571

[Peshawar]

Before Wali Muhammad Khan, J

ALLAH DAD--Petitioner

versus

GOVERNMENT OF PAKISTAN and 53 others--Respondents


Civil Revision No.4 of 1987, decided on 5th April, 1989.

(a) West Pakistan Land Revenue Act (XVII of 1967)--

----Ss.52 & 116--"Settlement record" and "Jamabandi"--Entries in--Mode of


preparation--Extent of presumption to be attached--Much stronger presumption was
attached to the entries of Settlement record than to the entries of `Jamabandi'. The
`Jamabandi' is prepared by the Patwari Halqa, taking assistance from the mutations
attested during the intervening 4 years and the entries of the Khasra Girdawari
immediately preceding the preparation of the `Jamabandi' in question. No independent
inquiry is made by the Patwari regarding the title or possession of the parties concerned
whereas the record of rights is finalized after physical measurement is made by the
Settlement Officer on the spot, proper inquiry is conducted regarding the ownership and
possession of the respective fields on the spot and the entire populace of the estate have
knowledge and are supposed to associate themselves with the settlement operations.
Consequently much stronger presumption is attached to the entries of Settlement record
than the entries of the `Jamabandi'.

(b) West Pakistan Land Revenue Act (XVII of 1967)--

---S.53--Limitation Act (IX of 1908), Art.120--Suit by person aggrieved of entries in


record of rights--Limitation--Persons claiming to be recorded in possession of land prior
to Settlement operations of 1905 where after entries were varied, against them--Two
Settlement operations having been carried out in the. year 1905-6 and in 1948-49 at the
conclusion whereof, record of rights prepared, showed the land as having been recorded
in the ownership of Government and in the possession of the Military--Aggrieved persons
including plaintiffs could file a suit for declaration to challenge the entries within six
years from the time of first entry, which having not been availed of, suit filed after the
statutory period of limitation was patently time-barred.

(c) Witness-
--- Party producing a witness was bound by whatever deposition was made by him--Such
party cannot turn round to say that the adverse statement given by his witness may be
excluded from consideration--Plaintiff's witness having not been declared hostile he was
bound by his statement.

Alhaj Sardar Bhahadur Khan for Petitioner.


Kh. Nazir Ahmad for Respondent No.l..
Syed Muhammad Daud Shah for the Remaining Respondents.
Dates of hearing: 29th March and 5th April, 1989.

JUDGMENT

The instant dispute has a chequered history. Allah Dad plaintiff petitioner herein sued the
defendants-respondents for declaration that he and the proforma defendants Nos.26 to 49
were mortgagees of the suit land measuring 149 Kanals and 12 Marlas comprised in
Khasra No.27, on behalf of defendants Nos.l to 22 and that the latter having not redeemed
the mortgage with the statutory period of 60 years, have ceased, to be the owners of the
suit land and the plaintiff and defendants Nos.26 to 49 have acquired prescriptive title, on
account of time-barred mortgage. A further declaration was also sought whereby the
entries of the record of rights, right from the Settlement record of 1904-5 till the current
`Jamabandi', were challenged as wrong, illegal and ineffective on their rights. In the
alternative, prayer for possession of the suit land was also solicited. Defendants Nos.l to 5
and 7 to 22 confessed judgment while the other defendants were proceeded against ex
parte. The learned Additional Civil Judge, Abbottabad who was then seized of the case,
vide his judgment and decree dated 12-9-1978 decreed the suit of the plaintiff-petitioner.
However, on the application of Government of Pakistan through Secretary, Ministry of
Defence and Military Estate Officer, Abbottabad, defendants Nos.23 and 24, respondents
Nos.l and 2 herein, the ex parte decree was set aside and the defendants-respondents were
allowed to contest the suit. Only defendant-respondents Nos.l to 2 contested the suit and
in their written statement denied all the allegations contained in the plaint and also raised
certain legal objections including limitation as well. Issues were framed, evidence pro
and contra the said issue, was recorded and the learned Civil Judge Ist Class, Abbottabad,
vide his judgment and decree dated 1911-1979 decreed the suit of the plaintiff-petitioner,
but on appeal the case was remanded by the learned Additional District Judge,
Abbottabad at Haripur vide his judgment and decree dated 8-11-1980. It was again
dismissed by the trial Judge on 31-1-1982 and remanded for second time by the District
Judge, Abbottabad vide his order dated 20-3-1984 with a direction that, a commission,
well versed in the measurement and demarcation, be appointed for the inspection of the
spot and the elucidation of certain material points in, issues between the parties.
Consequently Allah Dad District Qanoongo, District Abbottabad was entrusted with the
task and he after visiting the spot and complying with the directions issued to him,
submitted his detailed report which is Exh.C.W.l/1 on the file. He was also examined as
CW to explain the salient feature of his conclusion arrived at by him and a result of his
inspection of the spot. The learned Senior Civil Judge, Abbottbad vide his judgment and
decree dated 31-7-1985 passed by the declaratory decree prayed for in the plaint in favour
of the plaintiff-petitioner against the defendants-respondents. The defendants
-respondents Nos.l and 2 and herein, dissatisfied with the same preferred an appeal before
the learned District Judge, Abbottabad who vide his judgment and decree dated
18-12-1986 accepted the same and by setting aside the judgment and decree of the
learned Senior Civil Judge dated 13-7-1985, dismissed the suit of the plaintiff-petitioner.
Hence the instant revision petition by Allah Dad plaintiff.

2. I have heard the learned counsel for the parties for sufficient length of time and
have perused the record of the case with their valuable assistance.

3. The gravamen of the learned counsel for the plaintiff-petitioner is that during the initial
settlement operation carried out in this District in the year 1872 the suit land bearing
Khasra No.27 was included in the `Khewat' owned by Madad Shah and Nadar Shah and
under mortgage with Munir, predecessor-in-interest of the plaintiff-petitioner and pro
forma defendants Nos.26 to 49, as is evident by the entries of the Settlement record of
1872 Exh.PW 3/2 on the file. According to him, this entry continued in the subsequent
`Jamabandi' for the year 1891-1892 Exh.PW-3/1, 1899-1900 Exh.PW-3/3 wherein Sher
Zaman son of Munir was shown as the mortgagee of the suit land, but curiously enough,
without any mutation the said number Khasra was shown as forming part of the estate of
Rakh Civil/Military in the subsequent Settlement operation carried out in the year 1904-5
and was recorded as the ownership of `Sarkar' and in possession of Military which entry
is continued upto date. Relying on the judgments of the Lahore High Court in cases Allah
Dad v. Muhammad Ali and others PLD 1956 Lahore 245, Azam Khan v. Azad Khan and
others PLD 1986 Lahore 275, the learned counsel for the petitioner argued with
vehemence that the subsequent entries right from the Settlement record of 1904-5, being
without basis and illegal, the previous entries in the name of plaintiff-petitioner as
mortgagee would be deemed to subsist and the possession having remained with him
intact, he was within his rights to claim declaration of title on account of time-barred
mortgage and to challenge the subsequent entries referred to above as wrong, illegal and
ineffective on his rights. The learned counsel for, defendant-respondents Nos.l and 2
herein, on the contrary, submitted that the entries of the first Settlement of 1872,
allegedly in the name of predecessor of petitioner and defendants Nos.2649, were finally
found incorrect and that, at that time too, the suit land was in the ownership of the
Government and was in the possession of the Military.

4. I have given my anxious consideration to the arguments of the learned counsel for
the parties.

5. The first settlement in this area was carried out in the year 1872. It is not denied that
two distinct estates known as the estate of `Jhangi' and the estate of Rakh Civil/Military
were carved out at that time. As is clear from the `Musavi' pertaining to the estate of Rakh
Civil/Military, copies available on the record, a compact block bearing several Khasra
numbers starting from one and inclusive of number Khasra 27 was earmarked as forming
estate of Rakh Civil/Military and shown as the ownership of the Government, some of
which were shown in possession of the civil and the rest in the possession of the Military.
Number Khasra 27 is shown in the middle of the said compact block. However, the
perusal of entries of the Settlement record of 1872 pertaining to the estate of `Jhangi'
copy Exh.PW-3/2, reveal that the certain Khasra numbers, namely, 588 to 591, 595 and
596 were entered in `Khewat' No.21 of the said estate and recorded as the ownership of
Madad Shah and Nadar Shah while Teer and Faqir sons of Sher were shown as
mortgagees for a sum of Rs.25 over an area of about 37 Kanals. In the `Jamabandi' of
1899-1900 suit Khasra number is independently entered in the ownership column as the
mortgagee of Sher Zaman son of Sher without any entry in the name of any one as
mortgagor. There is reference, purportedly to redemption and mortgage mutation in the
said `Jamabandi' but they are not placed on file to clarify as to whether they related to the
suit land or not. The reference made in the remarks column reveal that they do not bear
the order of any Revenue Officer. There is a mortgage mutation No.28 Exh.PW-3/6 on
the file attested on the basis of registered deed dated 9-2-1989 but the said document has
not been produced and the entries of the mutation are ambiguous. However, this much is
clear that right from the Settlement record of 1904-5 the suit land is consistently recorded
as forming part of the estate of Rakh Civil/Military, in the ownership of Government and
in the possession of Military. Needless to stress that each estate has its independent
boundaries and the fields carved therein bear distinct Khasra numbers commencing from
one and ending on the total number of fields situated therein. Each estate has separate
record of rights showing respective owners. and persons in possession of each Khasra
number comprising in the said estate. It is admitted that the suit land was situated in the
midst of the area earmarked as the estate of Rakh Civil/Military, and I fail to understand
how, this distinct field No.27 was taken out of this estate and included in the estate of
`Jhangi' so far as the preparation of record of rights of the two estates was concerned. If it
had been found that the said area was the ownership of other persons than the
Government, then in that event, it should have been entered in a separate `Khewat' of the
estate of Rakh Civil/Military. It is not understandable how a Khasra number admittedly
situated in one estate was included in the record of-rights of another estate. The only
conclusion that can be drawn is that the initial entry of the Settlement record 1872
pertaining to the estate of `Jhangi' whereby Khasra number 27 Rakh Civil/Military was
entered, is wrong and without any basis. It was the ownership of the Government and
under the possession of the Military and its incision in the estate of `Jhangi' could not
deprive the Government of its ownership. Nevertheless the error was corrected in the
subsequent settlement of 1904-5 wherein the suit land was recorded as the ownership of
the Government and in the possession of Military which was not only repeated in the
subsequent `Jamabandi' but was also incorporated in the subsequent settlement record of
1948-49 after physical measurement on the spot by the Settlement Officers and necessary
inquiries on the spot regarding its ownership were made.

6. The authorities cited by the learned counsel for the petitioner, I am afraid, are not
strictly applicable to the facts of the present case. In both the cited cases there were
variations between the entries of `Jamabandis' and the entries of the subsequent
`Jamabandi' having been proved wrong, the entries of the `Jamabandi' prior thereto, were
held to be holding the field. There is much difference between the entries of `Jamabandis'
prepared by the Patwari and the record-of-rights prepared on the conclusion of the
settlement operation. The `Jamabandi' is prepared by the Patwari Halqa, taking assistance
from the mutations attested during the intervening 4 years and the entry of the Khasra
Girdawari immediately preceding the preparation of the `Jamabandi' in question. A No
independent inquiry is made by the Patwari regarding the title or possession of the parties
concerned whereas the record of rights is finalized after physical measurement is made
by the Settlement Officer on the spot, proper inquiry is l conducted regarding the
ownership and possession of the respective field on the spot and the entire populace of
the estate have knowledge and are supposed to associate themselves with the Settlement
operation. Consequently much stronger presumption is attached to the entries of
Settlement record than the entries of the `Jamabandi'. In this respect I am fortified by the
judgment of Peshawar High Court in case Muhammad Shah and others v. Mir Zaman and
others reported as AIR 1943 Peshawar 83. In the instant case two settlement operations
have been carried out, one in the year 1905-6 and the other in the year 1943-49 and in the
record of rights prepared at the conclusion of .both the aforesaid settlements the suit land
was recorded as the ownership of the Government and in the possession of the Military.
The aggrieved persons, including the plaintiff-petitioner and the defendants Nos.l to 22
and 26 to 49, could file a suit for declaration to challenge entries within six years from
the time of first entry, which they have not availed of and the instant suit is patently
time-barred.

7. Nonetheless, the learned counsel for the petitioner, submitted that the
plaintiff-petitioner remained in possession of the property and consequently he was not
bound to feel aggrieved so long as his possession was not disturbed or there was no
attempt at ousting him from possession. There is no force in this contention either. The
land is undisputedly grassy and as per the statement of his own witness, namely, Mir
Abdullah PW.6 the suit land is in the possession of the defendants respondents herein and
that he had been purchasing the grass in open auction from them. By now it is an
established law that the party producing a witness is bound by whatever deposition is
made by him and he cannot turn round and say that the adverse statement given by his
witness may be excluded from consideration. The witness had not been declared hostile
and the plaintiff petitioner was rightly held bound by it by the learned appellate Court.

8. In view of what has been discussed above, there is no merit in the instant revision
petition and the same is accordingly dismissed. However, complicated points being
involved in the case, the parties are left to bear their own costs.
A.A./761/P Revision dismissed,
P L D 1962 W. P. (Rev.) 27

Before Nasir Ahmed, Member Board of Revenue, West Pakistan

MUHAMMAD AJMAL KHAN AND ANOTHER Appellants

Versus

MOMIN KHAN AND OTHERS-Respondents

Revision Side No. 287 of 1960-61, decided on 7th September 1961, District Peshawar.

(a) Partition-Question of title to be decided by Revenue Officer, constituting himself


into Civil Court, according to civil procedure-Parties to get maximum opportunity
permitted by statutes-Punjab Land Revenue Act (XVII of 1887) Ss. 116, 117.

(b) Punjab Land Revenue Act (XVII of 1887), S. 16--Revision-Power not limited.

ORDER
The respondents Momin Khan and others applied to the Assistant Collector 1st Grade for
partition of the land in dispute which is situated in village Tungi, District Peshawar.
Before the partition proceedings could conclude Muhammad Ajmal Khan etc., the
petitioners preferred an appeal to the Collector in which two main issues were raised.
Firstly: that the petitioners had raised a question of title namely the existence of a private
partition between the parties. Further that as a result of this private partition the various
share-holders had dealt with the land falling to their shares as if it were their exclusive
property. Secondly: that the parties held several other joint holdings which had been
taken into account in this family partition. Thus unless the entire property were pooled
together the matter in issue, i.e., the partition could not be determined justly. The
Collector accepted the appeal and directed that the Assistant Collector should proceed in
accordance with the provisions of section 117 of the Land Revenue Act and determine the
question of title raised, i.e., the alleged private partition of all the joint holdings of the
parties before proceeding further. He accordingly remanded the case. The learned
Additional Commissioner, however, intervened in revision. Somehow it escaped his
notice that a question of title had been raised and the mendatory provisions of section 117
of the Land Revenue Act had to be followed. He merely held that it was not necessary
that all the joint holdings of the parties should be dealt with together and a partition of
one of their joint holdings could proceed independently of others. He accordingly set
aside the order of the Collector and directed the partition proceedings to continue.
Muhammad Ajmal Khan and others have now come up in second appeal.
A preliminary objection has been taken by the respondents namely ; that under the
provisions of section 13 of the Land Revenue Act a second appeal is not competent In
this case. Mr. Pir Bakhsh the learned counsel for the petitioners has requested that in the
particular circumstances of this case the appeal may be treated a revision and I have
accepted this request for the reasons which follow.

It is contended on behalf of the respondents that the provisions of section 116 of the Land
Revenue Act give some discretion to the Revenue Officer to decide whether a question of
title is in fact Involved or not; so that according to the learned counsel for the respondents
if the question of title raised seems prima facie frivolous on the strength of the revenue
record, the Revenue Officer need not comply with the provisions of section 117 and may
proceed with the partition. This view is contrary to what has without exception been
accepted as the correct procedure in partition proceedings. It has been laid down by the
Financial Commissioners and by the Board of Revenue that even if a question of title,
when raised, is prima facie untenable, it shall not be decided by the Revenue Officer as
such unless he constitutes himself into a Civil Court. The main reason why the law makes
it incumbent to follow this procedure is that the proceedings of Revenue Officer
(Partition proceedings are a Revenue Officer's case) are summary in character and no
statutary law or rules lay down how these proceedings are to be conducted. A question of
title in property is of such importance as to warrant a decision in accordance with the
procedure laid down by the C. P. C. so that the parties have an opportunity to lead
evidence in accordance with the Evidence Act, cross examine witness etc. etc. It is really
in the interest of the parties themselves that a question of title should not be decided in
the summary manner which is followed by Revenue Officers and the parties should get
the maximum opportunity permissible under the civil law of the land to state and prove
their case. In this particular case the question of a private partition had definitely been
raised. It had also been stated that this private partition embraced all the joint holdings of
the parties and as a result of this private partition the parties had dealt with the land which
fell to their share as their exclusive property that is sold, mortgaged or gifted it away etc.
etc. This was not a frivolous plea and it was incumbent on the Revenue Officer either to
constitute himself into a Civil Court and determine this question of title or decline to
grant the partition until the matter in issue had been determined by a competent Civil
Court.

The powers of interference in revision are not limited by the Land Revenue Act, but even
following the provisions of section 115 of the C. P. C. the Revenue Officer below have
exercised jurisdiction which did not vest in them. It is just a case of this kind in which
interference in revision is in fact required. I would accordingly accept this petition, set
aside the order passed by the learned Additional Commissioner and restore that of the
Collector, i.e., that the Assistant Collector should determine the question of title before
proceeding with the partition.

S. B.

Petition accepted.
P L D 1962 W. P. (Rev.) 27

Before Nasir Ahmed, Member Board of Revenue, West Pakistan

MUHAMMAD AJMAL KHAN AND ANOTHER Appellants

Versus

MOMIN KHAN AND OTHERS-Respondents

Revision Side No. 287 of 1960-61, decided on 7th September 1961, District Peshawar.

(a) Partition-Question of title to be decided by Revenue Officer, constituting himself


into Civil Court, according to civil procedure-Parties to get maximum opportunity
permitted by statutes-Punjab Land Revenue Act (XVII of 1887) Ss. 116, 117.

(b) Punjab Land Revenue Act (XVII of 1887), S. 16--Revision-Power not limited.

ORDER
The respondents Momin Khan and others applied to the Assistant Collector 1st Grade for
partition of the land in dispute which is situated in village Tungi, District Peshawar.
Before the partition proceedings could conclude Muhammad Ajmal Khan etc., the
petitioners preferred an appeal to the Collector in which two main issues were raised.
Firstly: that the petitioners had raised a question of title namely the existence of a private
partition between the parties. Further that as a result of this private partition the various
share-holders had dealt with the land falling to their shares as if it were their exclusive
property. Secondly: that the parties held several other joint holdings which had been
taken into account in this family partition. Thus unless the entire property were pooled
together the matter in issue, i.e., the partition could not be determined justly. The
Collector accepted the appeal and directed that the Assistant Collector should proceed in
accordance with the provisions of section 117 of the Land Revenue Act and determine the
question of title raised, i.e., the alleged private partition of all the joint holdings of the
parties before proceeding further. He accordingly remanded the case. The learned
Additional Commissioner, however, intervened in revision. Somehow it escaped his
notice that a question of title had been raised and the mendatory provisions of section 117
of the Land Revenue Act had to be followed. He merely held that it was not necessary
that all the joint holdings of the parties should be dealt with together and a partition of
one of their joint holdings could proceed independently of others. He accordingly set
aside the order of the Collector and directed the partition proceedings to continue.
Muhammad Ajmal Khan and others have now come up in second appeal.
A preliminary objection has been taken by the respondents namely ; that under the
provisions of section 13 of the Land Revenue Act a second appeal is not competent In
this case. Mr. Pir Bakhsh the learned counsel for the petitioners has requested that in the
particular circumstances of this case the appeal may be treated a revision and I have
accepted this request for the reasons which follow.

It is contended on behalf of the respondents that the provisions of section 116 of the Land
Revenue Act give some discretion to the Revenue Officer to decide whether a question of
title is in fact Involved or not; so that according to the learned counsel for the respondents
if the question of title raised seems prima facie frivolous on the strength of the revenue
record, the Revenue Officer need not comply with the provisions of section 117 and may
proceed with the partition. This view is contrary to what has without exception been
accepted as the correct procedure in partition proceedings. It has been laid down by the
Financial Commissioners and by the Board of Revenue that even if a question of title,
when raised, is prima facie untenable, it shall not be decided by the Revenue Officer as
such unless he constitutes himself into a Civil Court. The main reason why the law makes
it incumbent to follow this procedure is that the proceedings of Revenue Officer
(Partition proceedings are a Revenue Officer's case) are summary in character and no
statutary law or rules lay down how these proceedings are to be conducted. A question of
title in property is of such importance as to warrant a decision in accordance with the
procedure laid down by the C. P. C. so that the parties have an opportunity to lead
evidence in accordance with the Evidence Act, cross examine witness etc. etc. It is really
in the interest of the parties themselves that a question of title should not be decided in
the summary manner which is followed by Revenue Officers and the parties should get
the maximum opportunity permissible under the civil law of the land to state and prove
their case. In this particular case the question of a private partition had definitely been
raised. It had also been stated that this private partition embraced all the joint holdings of
the parties and as a result of this private partition the parties had dealt with the land which
fell to their share as their exclusive property that is sold, mortgaged or gifted it away etc.
etc. This was not a frivolous plea and it was incumbent on the Revenue Officer either to
constitute himself into a Civil Court and determine this question of title or decline to
grant the partition until the matter in issue had been determined by a competent Civil
Court.

The powers of interference in revision are not limited by the Land Revenue Act, but even
following the provisions of section 115 of the C. P. C. the Revenue Officer below have
exercised jurisdiction which did not vest in them. It is just a case of this kind in which
interference in revision is in fact required. I would accordingly accept this petition, set
aside the order passed by the learned Additional Commissioner and restore that of the
Collector, i.e., that the Assistant Collector should determine the question of title before
proceeding with the partition.

S. B.

Petition accepted.
P L D 1959 W. P. (Rev.) 98
Before A. K. Malik, Member, Board of Revenue, West Pakistan

ABDULLAH and others-Petitioners

Versus

HABIB ULLAH-Respondent.

Appellate Side No. 6.9 of 1956-57, decided on 12th December 1957, District Multan.

(a) Punjab Land Revenue Act (XVII of 1887),

S. 13---Appeal not preferred from order sanctioning mode of partition-Revision


entertained by Commissioner who remanded case-Order upheld by Board.

(b) Punjab Land Revenue Act (XVII of 1887),

S. 116---Plea of private partition---Question of title to be decided under S. 117.

Hussain Muhammad Naqvi for Petitioners.

Muhammad Akram for Respondent.

ORDER
The petitioners and respondent purchased certain Crown land in Chak No. 358/W.B.,
Tehsil Lodhran, District Multan in auction in the year 1940. Proprietary rights of the land
in question were secured in 1945 and the petitioners applied to the Collector, Nili Bar
Colony on 6-5-55 for the partition of the land. The Assistant Collector 1st Grade
sanctioned the mode of partition on 2-2-56. No appeal was lodged against this order but
the respondent preferred a revision petition before the Additional Commissioner
(Revenue) Multan, who by his order dated 5-7-57 set aside the order of the Assistant
Collector 2nd Grade and remanded the case for fresh disposal on the ground that since
the respondent had raised the plea that private partition had taken place between the
parties this amounted to a question of title within the meaning of Section 116 of the Land
Revenue Act and instead of proceeding with the 'partition proceedings the Revenue
Officer should have proceeded to determine the question of title in accordance with law.
It has been argued before me by the counsel for the petitioner that in fact no partition has
taken place 1 between the parties. The plea having been taken by the respondent that a
partition had actually been effected, whether or not this had been done was a question of
title, which should have been determined in accordance with Section 117 of the Land.
Revenue Act and the instructions contained in Land Records Manual Paragraph 18.9. The
Revenue Officer should proceed according to these instructions. I see no force in the
revision petition and dismiss it.

A. H. Petition dismissed.