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Official Citation: 2024 PLJ 537
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-04-22
Parties: Ashiq Ali, & others vs Ghulam Ali (deceased) through legal heirs, etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-04-22, officially reported as 2024 PLJ 537. In this matter between Ashiq Ali, & others and Ghulam Ali (deceased) through legal heirs, etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLJ 2024 Lahore 537
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad Title: Ashiq Ali, & others vs Ghulam Ali (deceased) through legal heirs, etc Case No.: Civil Revision No.68828 of 2023 Date of Judgment:2024-04-22 Reported As: 2024 LHC 2058, PLJ 2024 Lahore 537 Result: Revision Dismissed
Judgment ORDER This Civil Revision, filed under Section 115 of the Code of Civil Procedure, 1908, is directed against the judgment and decree of learned appellant Court, whereby, the appeal preferred by respondents was allowed and resultantly dismissed the petitioners' suit for declaration with permanent injunction. 2. Facts in brevity are that the petitioners/ plaintiffs (hereinafter referred to as 'plaintiffs') instituted a suit for declaration with permanent injunction on 25.02.1996 against the respondents/defendants (hereinafter referred to as 'defendants'), on the grounds that the plaintiffs and defendant No.1 are real brothers; that suit property measuring 98 kanals 08 marlas situated in khewat No.4 khatoni No.79 Chak No.6/4-L, Tehsil Okara (hereinafter referred to as "the suit property") was owned by the Provincial Government; that their father was in cultivating possession of the same as a tenant since 1956-57 till his death; that after the demise of their father, all the four brothers jointly cultivated the suit property as tenants; that defendant No.1 with the help and connivance of revenue officials got entered his name as a tenant in the crops Kharif 1971 and Rabi 1972; that in the year 1974 the Provincial Government launched a scheme to grant proprietary rights to the cultivators who were in possession of the property; that the plaintiffs and defendant No.1 applied to get the proprietary rights and also paid the expenses; that after completion of legal proceedings defendant No.1 assured the plaintiffs that proprietary rights have been granted to all the four brothers but in the year 1995 the plaintiffs came to know that defendant No.1 has got proprietary rights of the suit property in his name vide order dated 15.07.1974 passed by the Deputy Land Commissioner followed by mutation No.317 dated 25.04.1989; that defendant No.1 in connivance with the revenue staff fraudulently obtained the order dated 15.07.1974 from Deputy Land
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commissioner; that the suit property had been in their possession being legal heirs of Ghulam Muhammad, therefore, the impugned order wherein the suit property was allotted only to defendant No.1 excluding the plaintiffs, is illegal, against facts and law having no effect upon their rights and sought declaration that being legal heirs the plaintiffs and defendant No.1 are owners of the suit property according to their legal share. Defendant No.1 and defendants No.2 & 3 resisted the suit through separate contested written statements wherein while raising certain preliminary objections defended the impugned order and refuted all the allegations/averments made in the plaint. Defendant No.1 in his written statement maintained that he was in possession of the suit property as a tenant from Kharif 1971 to Rabi 1971-72, hence, the suit property was allotted to him by the Deputy Land Commissioner vide order dated 15.07.1974 after observing all formalities in accordance with law; that earlier the suit property was owned by Anjuman Ahmadia Ishaat Islam Trust which was resumed by the Land Commission and the same was allotted to him as he was in possession of the suit property as tenant at the relevant time; that the plaintiffs were not in possession of the suit property, therefore, they have no concern with the suit property. The learned trial Court, out of divergent pleadings of the parties, framed necessary issues on 10.09.1996, subsequently fresh issues were framed and invited them to produce their respective evidence and after recording evidence of the parties pro and contra, oral as well as documentary decreed the suit vide judgment and decree dated 30.09.2022. Being aggrieved, the legal heirs of defendant No.1 preferred an appeal which was allowed by the learned appellate court vide judgment and decree dated 31.07.2023. Being dissatisfied the plaintiffs approached this Court through instant Civil Revision. 3. I have heard preliminary arguments advanced by the learned counsel for the petitioners and perused the record with his able assistance. 4. The plaintiffs basically assailed the vires of order dated 15.07.1974 passed by the Deputy Land Commissioner followed by mutation No.317 dated 25.04.1989 whereby, resumed suit property, consisting upon 98 kanals 08 marlas, from Anjuman Ahmadia Ishaat Islam Trust was allotted to Ghulam Ali (defendant No.1) on the grounds that after the demise of their predecessor namely Ghulam Muhammad (father of the plaintiffs and defendant No.1) who was original tenant of the Trust, the suit property had been in their joint possession being his legal heirs, therefore, the impugned order wherein the suit property was only allotted to defendant No.1 excluding the plaintiffs, other sons of Ghulam Muhammad, is illegal, against facts and law having no effect upon their rights and sought declaration that being legal heirs plaintiffs and defendant No.1 are joint owners of the suit property according to their legal share. Whereas, the stance of the defendant No.1 is that he was in possession of the suit property during crucial harvest i.e Kharif 1971 to Rabi 1971-72 and being land less tenant he applied for allotment of the resumed land (suit property) through adopting proper procedure and after scrutinized his claim, the suit property was allotted to him. 5. Before discussing further it is better to see the law and rules applicable for allotment of resumed/surrendered land. 6. The land resumed or surrendered under paragraph No.13 & 14 of the Land Reforms Regulation, 1972 (Martial Law Regulation No.115 of 1972) (hereinafter referred to as "MLR.115 of 1972") is settled to be granted free of charge to the tenants who are shown in the Revenue Records to be in cultivating possession of it in Kharif 1971 and Rabi 1971-72 under Paragraph No.18 which reads as under: - 18. Grant of land to tenants. Land which vests in Government under the provisions of paragraph 13 or paragraph 14 shall subject to the other provisions of this paragraph, be granted free of charge to the tenant who are shown in the Revenue Records to be in cultivating possession of it in Kharif 1971 and Rabi 1971-72 or in the case of land vesting in Government on the basis of a declaration made pursuant to clause (ee) of sub-paragraph (1) of paragraph 12, to the tenant who is shown in
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the Revenue Record to be in cultivating possession of it in the year immediately preceding such declaration: Provided that no land shall be granted to tenants who, but for the making of this Regulation, would have entitled to inherit land from any of the persons from who land has been resumed under this Regulation. (2) Where a tenant who is entitled to the grant of land under the said sub-paragraph (1) already owns any land, he shall be granted only so much land under the said sub-paragraph which together with the land already owned by him equals an area of a subsistence holding. (3) Where any land is not shown in the Revenue Records to be in cultivating possession of any tenant, during Kharif 1971 and Rabi 1971-72 it shall be granted to such tenant or other persons, owing less than a subsistence holding, and on such terms and conditions as the Government may determine; [provided that Government may utilize any such land for such public purpose as it may deem fit]. (4) Nothing in this paragraph shall apply to orchards, or to any state-land granted on instalments where any instalment in respect of such land remains unpaid". In exercise of the powers conferred on Punjab Land Commission through Notification No.DSH- 1076/72/6514-LC(II) dated 5th April, 1973 promulgated "The Punjab Land Reforms Rules, 1972" (hereinafter referred to as "the Rules, 1972). Rule 8 describes the procedure for applying the allotment and maintained that every application filed under MLR-115 of 1972 shall be drawn up and verified in the manner provided for drawing up and verification of a plaint or written statement in Code of Civil Procedure, 1908, in respect of Civil Suits. In the said Rules remedies of appeal (Rule 10 & Rule 11), Review (Rule 12) and Revision (Rule 13) are also provided to the aggrieved parties. 7. The Government of the Punjab Colony Department through Notification No.DSL-16/73/363 LC(II) dated 27th January, 1972 as amended by Notification No.1633-73-986-CLI dated 21st March,, 1974 issued "Statement of Terms and Conditions" for grant of land vest in it under the provision of paragraphs 13 and 14 of MLR-115 of 1972. The criteria of Eligibility is defined in Section 4 which provides that:- 4-Eligibility-(1) Subject to the provisions of the Regulation and this statement, a self-cultivator in a revenue estate where the land proposed to be granted is situate shall be eligible for grant of land if he is:- (a) A tenant who is shown in the revenue records of the estate to be in cultivating possession of a tenancy during a period of not less than four harvests ending Rabi 1971-72; or (b) a grantee of land under sub-paras (1) and (2) of para 18 of the Regulation, in the estate whose total holding in the estate and anywhere else is less than a subsistence holding; or (c) a small landowner in the estate whose total holding, inclusive of the holding of his family, in the estate and anywhere else, is less than a subsistence holding. (d) Subject to the provisions of the Regulation, such other person as may be specified by the Government from time to time shall also be eligible for grant of land under this statement (2) If after satisfying the claims of tenants and other eligible persons of the estate where the land is situated, some land is left for disposal, it shall be granted in such manner as the Government may determine. Section 5 describes Priorities which are as under: - 5-Priorities- While considering the claims of eligible persons the following order of preference shall be observed:- (a) A tenant who owns no land anywhere, such a tenant in cultivating possession of a tenancy in the revenue estate, for a larger number of harvests shall have a prior claim over one for a lesser
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number of harvests. (b) A tenant and other eligible person who owns anywhere an area less than a subsistence holding. One owning less area shall have prior claim over another owing more area: Provided that one whose previous holding is contiguous to the land proposed for grant shall be given preference over other. (c) A tenant and other eligible person who has a tenancy of 12 % acres of more, or owns some land as well as has a tenancy the aggregate of which is 12 % acres or more, shall be considered only after the claims of other tenants and other eligible persons mentioned in the above two categories have been satisfied. Section 6 describes scale of area to be granted. 6-Scale of area to be granted. Subject to its availability, land should not be granted to person made eligible under this statement of conditions exceeding maximum of a subsistence holding and if entitled person already owns any land, he should be granted only so much land which together with the land already owned by him does not exceed an area of a subsistence holding. Section 7 describes the procedure how to apply which read as under: - 7- Application for grant of land. (1) Application for grant of land under this statement shall be made in Form LR-XI-A by a date to be notified by the Chief Land Commissioner or the Deputy Land Commissioner of the district. (2) The application shall be sent either by registered post acknowledgement due to the Sub- Assistant Land Commissioner (Tehsildar) of the Tehsil or presented to him in person and receipt thereof obtained from him. (3) As soon as an application is received, it shall be entered in a Register to be maintained in the office of the Sub-Assistant Land Commissioner separately for each village where the land applied for is situate. Section 8 provides the procedure for grant of land which reads as under:- 8-Procedure for grant of land. The Chief Land Commissioner shall prescribe the procedure for the grant of land and the application for grant of land shall be processed in the manner prescribed by him. 8. Through Notification No.DSH-473/72/6514 LC(II), dated 11th May, 1972 as modified by Notification No.DSL-946-72/3320-LC(II), dated 18th August, 1972 declared that tenants claiming allotment of surrender and resumed land under sub-paragraphs (1) & (2) of paragraph 18 of MLR 115 of 1972 shall submit declaration in the From LR-XI at any time before the allotment and the allotment shall depend upon the information supplied by the tenant in the said form and said form should be accompanied a certificate that the information is accurate and complete in all respect. If the tenant fails to provide the required information or willfully furnishes incomplete or false declaration shall liable to action under paragraph 30 of MLR-115 of 1972 which provides rigorous imprisonment for a term which may extend to 07 years in addition to forfeiture of all or part of his immovable property to Government. From LR-XI should be submitted personally or through authorized agent to the Deputy Land Commissioner of the district, where the surrendered and resumed land in the cultivating possession of the applicant is situate In case the applicant is illiterate, should affix his thumb impression while furnishing the certificate at the end of the Form, which should be attested by a literate person. It was also directed that statement LR-XIV showing the name and full particulars of the tenants in cultivating possession during the harvests and statement LR-XV showing the particulars of land that was not in cultivating possession of a tenant are to be prepared. These statements are to be verified and certified personally by the Revenue Officer of the Haqla, and the Assistant Commissioner. Not less than 25% of the entries in the statements are to be checked personally by
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the Deputy Land Commissioner to ensure that mistakes have not been incorporated in the statements. In order to safeguard against any possibility of names of genuine cultivating tenants being excluded and names of undeserving tenants not qualified for allotment being included, it has, further been directed that the statement LR-XIV and LR-XV should be verified and certified personally by the Revenue Officer of the Halqa and the Assistant Commissioner concerned in the revenue estate itself in a 'Jalsa-e-Aam'. Before this verification seven days advance notice should be given to the villagers that an inquiry is to who were in cultivating possession of the resumed land during Kharif 1971` and Rabi 1971-72 would be made by the Revenue Officer/Assistant Commissioner on the date to be indicated in the notice and that objections would be invited from person disputing the entitlement of the tenants claiming allotment. To answer a question with regard to "joint tenancies", through Letter No.DSL-1186072/6227-LC(II) dated 27.11.1972 observed that a question has also arisen whether in case of joint tenancies the tenants should be allotted the land jointly or individually. According to the provisions of paragraph 18(1) and (2), the land resumed is to be granted free of charges to the tenants who are shown in the revenue records to be in cultivating possession of it in Kharif 1971 and Rabi 1971-72 and declared that the names of all the tenants should be shown together in the allotment order along with their respective shares. 10. From careful study of paragraph 18(1) and (2) of the MLR-115 of 1972, the rules framed thereunder, Statement of Terms and Condition, the Notifications and Instructions issued through letters from time to time, it appears that a special procedure was prescribed for grant of resumed/surrender land free of cost to the landless tenants. The tenant who required such grant had to apply through application duly verified and supported by a declaration given in the Form No.LR-XI. Said Form should be accompanied a certificate that the information is accurate and complete in all respects. If tenant fails to provide the required information or willfully furnishes incomplete or false declaration then he was liable to action under paragraph 30 of MLR-115 of 1972. It was also Standing Instructions to the concerned Patwari to provide information through preparing Statement LR-XIV showing the names and full particulars of the tenants in cultivating possession during the harvest and through statement LR-XV showing particulars of land which was not in cultivating possession of a tenant. Said statements were required to be verified by the concerned Revenue Officer and the Assistant Commissioner. Through an inquiry in a Jalsa-e-Aam held in the concerned estates by giving notices to the villagers that an inquiry as to who were in cultivating possession of the resumed land during Kharif 1971 and Rabi 1971-72 and inviting the objections from persons disputing the entitlement of the tenant claiming allotment scrutinized the claim of a tenant. In case of any dispute to ascertain the actual cultivating possession, then Canal Girdwari and Khatoni can also be checked and compared for verification. The Revenue Officer was also bound to ensure that the entries in LR-XVI and LR-XVII were fully corroborated with the entries in the Khasra Girdwari for the relevant period. In case of joint tenancies, the resumed land was to be allotted in the names of all the tenants according to their shares. It was not necessary that the tenant was actually cultivating the land. If he was shown cultivating possession in the revenue record then he was entitled for allotment. Right of appeal, revision and review was also available to the aggrieved party. 11. When case of the plaintiffs is examined in the light of procedure for allotment as discussed above, it is found that neither they applied for allotment through submitting application supported by declaration Form LR-XI nor raised any objections at the relevant time with regard to wrong entries of Khasra Girdwari in the name of defendant No.1. Their stance that they are in joint cultivating possession of the suit property is not verified from the Khasra Girdwari. If there were joint tenancies then the suit property should have been allotted to all of them according to the shares in
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their possession. The criteria for grant of resumed land under para 18(1) is not actual cultivation but cultivating possession of the land shown in the revenue records for Kharif 1971 and Rabi 1971-72 is enough for allotment. A tenant in cultivating possession of resumed land during these two harvests would be entitled to its allotment even though it may not have actually been cultivated during these harvests. But plaintiffs failed to prove that they were in cultivating possession in the revenue records for Kharif 1971 and Rabi 1971-72. 12. The plaintiffs' allegation that defendant No.1 manipulated the Register Girdwari by interpolating his name in the crucial crops with the help and connivance of the revenue officials is concerned, it is suffice to say that a procedure for preparing the Register Girdawri is prescribed in the Land Revenue Rules, 1968 and in Chapter 9 of the Land Record Manual. Rule 39 of the Land Revenue Rules, 1968 describes that for each estate a crop inspection register (Girdawari) shall be maintained, in Form XXIV and similarly for each estate a register of changes in cultivation, possession and rent to be known as the "Register Taghayyurat-e-Kasht" shall also be maintained by the Patwari in Form XXIV-A in which he will enter such harvest-wise changes as are not disputed and will incorporate the same in the "Register Girdawari" after due checking and attestation thereof by the Field Kannugo and the Circle Revenue Officer. The inspection of each harvest shall commence, as follow:- Kharif1st October Rabi1st March
The crops will be entered in the Register Girdawari as the inspection proceeds. The changes in rights, rents and possession will be noted in the appropriate column. To prevent any error, the Patwari enter his diary a list of all field numbers in which any change of cultivating occupying or rent has occurred and place this list before the field Kannugo at his next visit for verification. Similarly in the Register Taghayyurat-e-Kasht he will enter harvest-wise all changes of cultivating possession, rent, etc. which are undisputed. Whenever a Patwari has to alter an entry once made in the Register Girdawari, he must enter it in his diary but no such alteration should be made after the 'Dhal Bachh' of the harvest have been drawn up or corrected except with the sanction of the Collector which may be given for the correction of clerical or patent mistakes only. The field Kannugo is bound to inspect the Patwari's diary and he should check the alterations which have been made in the Register very carefully. Said entries of Register Girdawari would be enter in the Register Haqdarana Zamin. If at the time of preparation of the Register Haqdaran Zamin an entry in the Register Girdawari is found to be incorrect, it will nevertheless be retained unaltered, but the correct entry will be noted in red ink and will be attested by the Kannugo. The Patwari will bring the Register Haqdaran Zamin to the Tehsil at the beginning of September alongwith Register Girdawari, work books consisting of counterfoils and notes of inspection in his possession that are more than twelve years old. These papers except Register Haqdaran Zamin will be destroyed at once by the office Kannugo ((Para No.3.99 of Land Record Manual). A proper procedure is provided for maintaining and preparing the RegisterGirdawari. The concerned Patwari is bound to enter the Girdawari after inspection. Any change in the existing Girdawari is also entered in a separate Register and duly verified. Said entries of Register Girdawari are entered in the Register Haqdaran Zamin and after preparation of the Register Haqdarana Zamin, the Register Girdawari will be destroyed after twelve years. The plaintiffs challenged the entries of Register Girdawari of the years 1971-72 through instituting the suit in the year 1996. The plaintiffs challenged said entries after 25 years when the relevant record had already been destroyed.
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13. From scanning of evidence, it appears that initially plaintiffs produced Anwar Masih as PW-1, Muhammad Din as PW-2 and Muhammad Ibrahim as PW-3. Said witnesses during cross- examination admitted that property was allotted to whom in whose name girdwari had existed. PW-2 admitted it correct that management of Anjuman Ahmadia used to live in their village and tenancy was settled through its Manager. He further deposed that his father also got the tenancy from the said Manager and admitted it correct that office of the Anjuman situated in their village. He also admitted that suit property was allotted by Deputy Commissioner in an open assembly. After settlement of fresh issues, the petitioners produced Muhammad Anwar from the office of Kanungo as PW-1. He brought himself record of mutation No.317 and during cross-examination maintained that in the column of ownership name of Provincial Government through Land Commissioner Lahore is existed and in the column of cultivation name of Ghulam Ali is incorporated. One of the plaintiffs, namely, Ashiq Ali got recorded his statement as PW-2 on 29.08.2002. He narrated the same facts as pleaded in the plaint. He deposed that his father was died in the year 1968. He maintained that defendant No.1 got entered the property in his name which was not in their knowledge. Muhammad Ibrahim again got recorded his statement as PW-3 on 29.08.2002. During cross-examination he deposed that he was present at the time of allotment. Further deposed that Deputy Commissioner and Assistant Commissioner made the allotment. Abdul Aziz got recorded his statement as PW-4 and maintained that at the time of allotment all the brothers were present. He deposed that the property which was in the name of his father was allotted to him and thereafter inherited to all legal heirs. During cross-examination he maintained that at the time of allotment, all the tenants were called up and Parwari placed the 'Chant' before Assistant Commissioner and land was allotted to those tenants who were deserving. He further deposed that land was allotted to those persons who were in possession of land as tenants. Mehboob Alam, Land Reforms Clerk, appeared as PW-5 and produced allotment record as Exh.P-1. Muhammad Ismail Patwari Halqa got recorded his statement as PW-6 on 14.11.2002. He deposed that according to the Jamabandi Zearkar owner of the land is Ghulam Ali son of Ghulam…
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