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Petitioner: MUHAMMAD RAMZAN and another VS Respondent: MUHAMMAD SOOMAR and another
Court Name: Board of Revenue Judge(s): Muhammad Qasim Lashari Title: MUHAMMAD RAMZAN and another vs MUHAMMAD SOOMAR and another Case No.: Appeal No, S.R.O.A-203 of 1999 Date of Judgment:2002-09-07 Reported As: 2002 YLR 2615 Result: Order accordingly
Judgment ORDER This is an appeal preferred on 15-7-1999 against order dated 6-7-1999 passed by the Additional Commissioner-II, Hyderabad (defunct). The appeal is in time. 2. Facts in nutshell leading to this appeal are that Muhammad Soomar (respondent No,1) was granted agricultural land from unassessed No,1 piece L-2 admeasuring 24 Acres, Deh Lonia, Taluka Mirpur Bathoro from chaff, 1958-59 on harp conditions at the rate of Rs,200 per Acre. The land was granted under the provisions of Sindh Land Revenue Code, 1879 and rules made thereunder. The initial payment of Rs,240 was made vide Challan No,P/15, dated 15-8-1958. The remaining amount was to be paid in 20 equated instalments, the last instalment payable in the year 1983. Form-A bearing No,469 was issued under the sanction of Revenue Officer (defunct) vide No,241, dated 30- 9-1958. It is the contention of Muhammad Soomar (respondent No,1) that he took over the possession of the land granted to him from the Barrage Authorities as per sketch which was issued by the Revenue Officer (the then Collector) and was attached with Form-A. 3. It is alleged in para.2 of memo. of appeal that in the year 1965, the grant of Muhammad Soomar (respondent No,1) was cancelled due to infringement of terms and conditions. During the arguments of the case, Mr. Bhimraj, learned Counsel for the appellant produced a photostat copy of Order No,11310 dated 31-7-1965 of the then Revenue Officer, Ghulam Muhammad Barrage Project, Hyderabad alongwith photostat copy of list comprising Serial Nos,1 to 325 of cancelled grants/grantees but the name of Muhammad Soomar son of Muhammad Qasim Soomro was not visible in the said list. Moreover, no such cancellation note regarding the cancellation of grant in the year 1965, is recorded on Form-A N6.469. Thus the version of appellants that the grant of Muhammad Soomar was cancelled in 1965 is not supported by any substantial documentary
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evidence. If it is assumed that the grant was cancelled even then it will make no difference because by the acceptance of full. price, the land in question stood restored irrespective of the fact whether a formal re-grant or restoration order was issued or not which is quite immaterial at this belated stage. 4. The land granted to Muhammad Soomar (respondent No, 1) was subject to the provisions and on the terms and conditions laid dawn in the Sindh Land Revenue Code, 1879 and rules made there under and Standing Order No,10, Part I, section-B of the standing orders. The Sindh Land Revenue Code was repealed vide section 184(2) (Repealing and saving section) of the West Pakistan Land Revenue Act, 1967 (hereinafter referred to as the Act, 1967) (the words 'West Pakistan' were subsequently substituted by the word 'Sindh' vide Sindh adaptation of Laws Order, 1975). All the grants made under the repealed Code were saved vide subsection (4) of section 184 of the Act, 1967 and such grantees were declared to be the tenants of the Government under. the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred to as the Act, 1912) (the word 'Punjab' whs subsequently substituted by the word 'Sindh' vide Sindh Adaptation of Laws Order, 1975) on the same conditions on which the lands were granted to them. It was further laid down in sub-clause (ii) of clause (b) of subsection (4) of section 184 of the Act, 1967, that the grantee on paying the full price on which the land was granted to him in accordance with the conditions of land within the period provided in the grant, be deemed the owner of such land, and be subject to all the rights and liabilities of a proprietor under she Act, 1912. Later on, the whole Act 1912 was made applicable to the the .1 Province of West Pakistan vide section '(2) the Colonization of Government and (Punjab) (West Pakistan Amendmed Ordinance, 1969. 5. As per note recorded on Form-A, land granted to Muhurhmad Soomar (respondent No,1) was cancelled due to nonpayment of instalment vide Order No,MB/III/2058, dated 6-3-1983 but it was subsequently re-granted by the then Revenue Officer Kotri Barrage, Hyderabad vide his Order No, - MB/M. Batharo/5965, dated 19-8-1984. The Deh Lonia was block surveyed and block Nos,36/3,4 (8 Acres) and 87/1 to 4 (16 Acres) total area 24 Acres were formed at the same place of grant. The Revenue Officer KotriBarrage Hyderabad on the report No, 224 dated 2/-2-1984 of the Barrage Mukhtiarkar Sujjawal and with the consent of Muhammad Soomar (respondent No,1) issued the orders respecting revised sanction of the grant into block numbers as mentioned above vide his Order No,12/40/Rect/4051, dated 15-5-1984. Being aggrieved by the revised sanction order dated 15-5-1984, Muhammad Ramzan (appellant No.1) and Khushi Muhammad (appellant filed appeal No,13-1-162-Reader/85 before the Additional Commissioner-II, Hyderabad which was rejected being time- barred vide order dated 22-5-1989. There is no trace or any evidence to prove any further litigation in the matter as such it is presumed that order dated 15-5-1984 of Revenue Officer, Kotri Barrage Hyderabad regarding revised sanction attained finality. Subsequently, the grant was made fully paid and T.O. (Tear Off) form was issued in favour of grantee Muhammad Soomar (respondent No, 1) vide No, 65. dated 29-7-1984 and entry in his favour was also made in Village Form-VII vide No,.125 dated 5-9-1984 prescribed vide rule 72 (XXVII) of the Sindh Land Revenue Rules, 1968 as amended vide Notification No,1-46-78-Rev- I(ii)1687, dated 29th September, 1981 published in the Sindh Government Gazette (part IV-A) dated 18-2-1982. 6. The case of Muhammad Ramzan (appellant No,1) and Khushi Muhammad (appellant No,2) is that they both were also granted land under the terms and conditions notified vide No, COL-7/113- 57 dated 12-3-1959 for the grant of land to peasants in Ghulam Muhammad Barrage (now Kotri Barrage) area in the shape of Chaukri (square)/Field Survey numbers in the same dell from Rabi 1968-69, as follows:- (i) Muhammad Ramzan was allotted Chaukri/Field Survey Nos,855 to 858 total, area 16 Acres. (ii) Khushi Muhammad was allotted Chaukri/Field Survey Nos,825, 826, 827 and 854 total area 16
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Acres. 7. Form-A No,H-1687 and Form-A No,H-1693, dated 19th September, 1968 were issued to Muhammad Ramzan and Khushi Muhammad respectively. The grants of both the appellants were also fully paid and Tear Off (T.O) Forms were issued vide No,31 dated 20-5-1991 and No,32 dated 22- 5-1991 respectively and lands were mutated in V.F.VII in their names in June, 1991. Khushi Muhammad (appellant No,2) sold out his land comprising Chaukri/Field Survey Nos,825, 826, 827 and 854 (16.00 acres) to Muhammad Ramzan (appellant No,1) and the land was mutated in his favour in V.F.VII.B vide Entry No, 253 dated 13-6-1991. 8. On 6th October, 1997, Muhammad Soomar (respondent No,1) filed an Appeal (No .S-13-1-288- Reader/97) beforethe Defunct Additional Commissioner-II, Hyderabad against order (date not mentioned in the memo. of appeal) of the Revenue Officer, Kotri Barrage, Hyderabad. The facts and grounds mentioned by Muhammad Soomar in the memo. of his appeal were that:-- (i) He was allotted land from U.A No,1, Deh Lonia on harap conditions in 1958-59. The land was block surveyed and block Nos,36/3, 4(8 acres) and 87/1 to 4 (16 acres) total area 24 Acres, were formed. (ii)About one week back of his filing of his appeal (dated 6-10-1997), Muhammad Ramzan and Khushi Muhammad (appellants Nos,1 and 2 respectively)alongwith their supporters came to his land and after informing that Chaukri/Field S. Nos,855, 856, 825 and 826 had been granted to them and revised sanction had also been issued in their favour, demanded the possession of the land but due to intervention of Nekmards, they went away extending threats that they will come again. (iii) He rushed to the office of Revenue Officer, Kotri Barrage, Hyderabad and applied for certified copy of the impugned order and his application dated 4-10-1997 was forwarded to Barrage Mukhtiarkar, Sujjawal for report. 9. The aforesaid appeal was filed by Muhammad Soomar (respondent No,1) without attaching the copy of order assailed in the appeal. Even the date of order impugned in the appeal was not mentioned in the memo. of appeal. The appeal before the LearnedAdditional Commissioner-II, Hyderabad was, thus, not maintainable. 10.The learned Additional Commissioner-II, Hyderabad in para.5 of his order dated 6-7-1999 (impugned order) has mentioned that he has compared Deh map of block survey as well as field survey and have observed that most of the land which was granted. to Muhammad Soomar and subsequently allowed to him in revised sanction in shape of block survey, has been given to Muhammad Ramzan and Khushi Muhammad, in shape of survey numbers which is illegal. The learned Additional Commissioner-II, Hyderabad decided the appeal vide impugned order dated 6- 7-1999, as under:- "Considering the above factual position I have no option but to order that Assistant Commissioner, Sujjawal should constitute team of survey experts who may proceed to the site land compare deh map of field survey as well as block survey and also the actual position of the site. On the basis of survey report, the Assistant Commissioner should report to the Revenue Officer Kotri Barrage as to which S. Nos, are already granted to the appellant in shape of block survey numbers and subsequently allowed to the respondents in shape of field survey numbers. On receiving this report, the Revenue Officer, Kotri Barrage should exclude the S. Nos, which have been given to the respondents and were not actually available for the grant as having already been granted to the appellant and issue the corrected T.O. in . favour of respondents. With these observations, the appeal is disposed off." 11. The findings of the learned Additional Commissioner-II, Hyderabad are that certain block numbers granted to Muhammad Soomar (respondent No,1) in the year 1958-59, had also been granted to appellants in the year 1968-69 as duplicate grants. In order to know the factual position and ascertain the details of land given to appellants as duplicate grant, I have perused the maps and the record of survey lying in the Land Record Office Hyderabad and also the land grant papers
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of Kotir Barrage lying in the Office of Mukhtiarkar (Estate) Thatta produced by the concerned Tapedar. It revealed that in the year 1956-57 Delr Lonia Taluka Mirpur Bathoro was Surveyed and assigned Chaukri (square) survey numbers 393 to 999 (almost each Chaukri survey number consisted of 4 acres) as envisaged in section 9 of the Sindh Survey Manual. (Revised). These Chaukri numbers are also called as Field Survey numbers. Such map was issued by the Office of the Director Land Records, Hyderabad, and Chaukri/Field Survey numbers were entered in Ghatwadh forms and land register duly signed by the then Director Land Records, Hyderabad. The total area of Deh Lonia, as mentioned in the abstract of Deh area duly signed on 3-8-1962 by the then Director Settlement Survey and Land Records Southern Zone (West Pakistan) Hyderabad was 3947 Acres. 12. In the year, 1959, West Pakistan Survey and Rectangulation of Lands Ordinance, 1959 was promulgated and made applicable to the then Khairpur and Hyderabad Divisions vide Notification No,58/60-157-P-III issued by the West Pakistan Board of Revenue. Subsequently, West Pakistan (Southern Zone) Survey and Rectangulation Rules, 1960 were also framed and published vide No,58/60-153-P-III dated 16-1-1990. Under the directives of West Pakistan Board of Revenue, vide aforesaid notification, the survey and rectangulation of all lands in Khairpur and Hyderabad Division was carried out. The rectangulation of Deh Lonia was completed in the year 1963 assigning block survey numbers in place of Chaukri/Field survey numbers making entries in F-Forms which contained the details of old survey numbers and current survey numbers (rule 14 of the West Pakistan Survy and Rectangulation Rules, 1960) in Deh Form No, 1. On completion of block survey, map of block survey of Deh Lonia was issued and the old map of Chaukri/Field survey was cancelled by the then Director Settlement Survey and Land Records vide his Order No,7B.975 dated 4-6-1963 on the ground that the entire land was block surveyed. 13. The land granted in the year 1958-59. to Muhammad Soomar (respondent No,1) was out of U.A No,1 and it was subsequently assigned block numbers 36/3,4(8 Acres) and 87/1 to 4 (16 Acres) and such revised sanction was issued in the year 1984, Converting the land from old Chaukri/Field Survey numbers to new block survey numbers (Rectangulation). 14. The land granted in the year 1967-68 to Muhammad Ramzan (appellant No,1) and Khushi Muhammad (appellant No,2) were out of the old cancelled map of Chaukri/Field Survey comprising numbers 825, 826, 827, 854, 855, 856, 857 and 858 (32 Acres). This action on the part of granting Authority was illegal and unjustified for the obvious reason that Chaukri/Field Survey map was cancelled and was not in existence at the relevant time. The T.O. Form was also issued mentioning the said cancelled Chaukri/Field survey numbers which reveals that no revised sanction was issued to convert the land granted to both the appellants from old Chaukri survey numbers to new block survey numbers. It, therefore, concludes that the order impugned in Appeal No,5-13-1-228- Reader/97, before the learned Additional Commissioner-II, Hyderabad was fictitious. The issuance of T.O. Forms in cancelled Chaukri/Field Survey numbers was also illegal and such T.O. Forms are without any legal sanctity. 15. I have perused the cancelled map of previous Chaukri/Field Survey numbers and the existing map of block survey numbers of Deh Lonia. It is evident that Chaukri/Field survey numbers 825 and 826 (8 Acres) allotted to appellant Khushi Muhammad are over lapping Block vey number 36/3, 4 allotted to Muhammad Soomar (respondent No,1). Similarly, Chaukri Survey numbers 855 and 856 (8 Acres) allotted to appellant Muhammad Ramzan are also overlapping Block Survey numbers 87/1, 2 allotted to Muhammad Soomar. Such report along with map showing old Chaukri/Field survey numbers and existing block Survey numbers jointly signed by representatives of Survey Office and Barrage Office are available in the present case file as Exhs. A and B respectively. 16. Eventually, Chaukri/Field survey Nos,825 and 826 allotted to Khushi Muhammad (appellant No,1)and Chaukri/Field Survey numbers 855 and 856 allotted to Muhammad Ramzan (appellant
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No,2) were not, available for grant in the year, 1968-69. Obviously, the grants of these Chaukri/Field Survey numbers to aforesaid appellants are duplicate grants as has rightly been held by the learned Additional Commissioner-II, Hyderabad. Moreover, the allotment of land to appellants in the shape of cancelled Chaukri/Field Survey numbers was also illegal as the land was block surveyed and new block survey numbers were assigned which fact was in the knowledge of the then Barrage Authorities. Moreover, no revised sanction in respect of the land granted to appellants was issued by the then Revenue Officer Kotri Barrage, Hyderabad. That is why, in the T.O. Forms which were issued in May, 1991 in favour of appellants, the land was mentioned in cancelled Chaukri/Field. Survey numbers and not in Block Survey numbers. Had the revised sanction been issued by the R.O. Kotri Barrage mentioning block survey numbers therein, the same would have been incorporated in T.O. Forms. The issuance of T.O. Forms without revised sanction and not mentioning block survey numbers was void ab initio and such T.O. Forms No,31 dated 20-5-1991 and No,32 dated 22-5-1991 carry no legal weight and are deemed to had never been issued legally: 17. The crucial point which the learned counsel for the appellant (Mr. Bhimraj) has raised is that by the issuance of T.O. Form and mutation in she village Form VII-B, the land becomes Qabooli and then the Revenue Courts or Authorities are ceased with the jurisdiction to cancel or make any changes in the grant. In order to assess the legal vale of T.O. Form and entry in the mutation register VII-B, I would discuss the same hereunder in the light of relevant statutory provisions. 18. The abbreviation T.O. stands ' for "Tear off". The issuance of T.O. Form is described in paragraphs Nos,2 and 3 of section B, Part I of Standing Order No,10 published in the Standing Orders of the Revenue Department. The relevant portion of paragraph 2 is reproduced as under:-- "2.On receipt of sanction to a sale, the Barrage Mukhtiarkar should take the following steps in the order given:-- (i) Recover:-- (a) the full price when the installments are not ordered. (b) The value of trees, if any, and credit the amount in the treasury. (ii) Issue intimation of the grant in the Tear-off Form (specimen attached) and send two counterfoils of the form to the Taluka Mukhtiarkar, with the particulars of the S. Nos, in question, their areas, and the date (for the season or the year) from which the possession of the land is allowed. On receipt of these counterfoils the Taluka Mukhtiarkar will pass them on to the tapedar. The tapedar will enter the details of the grant in question for the recovery of malkano in case ,the area is more and for adjustment or refund, if the area is less. (iii) Get on agreement executed by the purchase in the prescribed form. (iv)Issue an Ijazatnama" 19. The paragraph No,3 of section B, Part I of Standing Order No,10 is also reproduced as under:-- "3.When the grants are fully paid, the Bandash is removed, and intimation in the Tear-off Form is issued the Barrage Mukhtiarkar and sent to the Taluka Mukhtiarkar through the Revenue Officer. The Accounts Branch of the Revenue Officer after verification with the Forms certifies that the grant is fully paid including the cost of trees and transmits two counterfoils to Taluka Mukhtiarkar. The Accounts Branch takes care to see that no serial number is missing and if any number is 'missing it is called for from the Barrage Mukhtiarkar. In case of lands disposed of form unassessed S. Nos, bhadas, etc. no T.O. Form is to be issued till the land is measured and difference of malkano if any recovery from the grantee. " 20. The T.O. Form is issued in the form which has been prescribed by the Government under an Administrative Letter No,443/F/50, dated the 6th January, 1951. The specimen of T.O. form is attached at the end of section-B, Part I of Standing Order No,10 and it is reproduced as under:--
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S. No, Date Month YearS. No, Date Month Year Intimation about removal of restriction after the grant is fully paid upIntimation about removal of restriction after the grant is fully paid up Tapedar Revenue Officer Return this counterfoil atter entry Form A From A Name of Deh. Block No,Name of Deh. Block No, Area grantee Area grantee Mukhtiarkar Barrage Mukhtiarkar Outward No, Date Month Year 195 Mukhtiarkar Entry No,Fortn VII MukhtiarkarIntimation is sent after verification for entry Entry No, in Form Vii. For Revenue Officer Barrage Return after entry TapedarDate Tapedar 21. It would thus be seen that T.O. Form is nothing but an intimation from Barrage Mukhtiarkar (now Mukhtiarkar Estate) to Taluka Mukhtiarkar (now redesignated as Mukhtiarkar Revenue) about removal of restriction after the grant is fully paid. It is neither a 'Transfer order' nor a "title deed". Therefore, a mere issuance of T.O. Form will not confer any proprietary rights upon a tenant until he, as laid down in section 15 of the Act, 1912, fulfills the other conditions set forth in the statement of conditions of sale issued by the Collector (Now District Officer Revenue) and such other conditions mentioned in the Act, 1912. After the grant is fully paid and T.O. Form is issued, the purchaser has to execute an agreement described in clause (iii), para.2, section B, Part I of Standing Order 10 (if the T.0 Form had been issued before 4-12-1989) or conveyance deed duly stamped and duly registered as envisaged in condition No,30 of the statement of conditions notified vide No,SB-III/1-279/P/1704/89, dated 4-12- 1989 (if the T.O. Form had been issued on or after 4-12-1989). An entry in V.F. VII-B of the aforesaid purchaser is to be based on the agreement/conveyance deed. If such an agreement conveyance deed which is one of the condition of the grant is not executed, then there will be no transfer of land within the meaning of sections 11 and 15 of the Act, 1912 read with section 3 of the Government Grants Act, 1895. It has been held in PLD 1987 Supreme Court 123, that both the sections 11 and 15 of the Act, 1912 ,are applicable to 'grant and by reason of section 3 of the Government Grant Act, 1895, which by reference, is in-corporation ii. section 11 of the Act, 1912, the terms and conditions of the grant itself pre-eminently would prevail so as to give them an overriding effect.
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23. As mentioned in section 15 of the Act, 1912, a purchaser from Government who has been placed in possession of the land by order of the District Officer Revenue (defunct Collector) shall be deemed to be a tenant of such land until:-- (i)the full 'amount of the purchase money with any interest due thereon has been paid, and; (ii)the other conditions set forth in the statement of the conditions of sale issued by the District Officer Revenue (defunct Collector) have been fulfilled. 24. Obviously, payment of full amount of purchase money with any interest due thereon alone is not sufficient to oust out a purchaser from the sphere of 'Tenant' unless he fulfills all the conditions set forth in the statement of the conditions of sale either issued by the Distinct Officer Revenue (defunct Collector) or contained in the Act 1912 or in any notification or circular concerning the, subject-matter issued under the said Act. Reliance is placed on PLD 1967 Lahore 52. It is clearly laid down in section 3 of the Government Grant Act, 1895 that all provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statement or enactment of the Legislature to the contrary notwithstanding. 25. As reported by the Revenue Tapedar of the beat, Muhammad Ramzan (appellant No,1) has never been in possession of land bearing Chaukri/Field Survey Nos,855 and 856 (8 Acres) which seems to be a duplicate grant. Similarly, Khushi Muhammad (appellant No,2) has also never been in possession of land bearing Chaukri/Field Survey Nos,825 and 826 (8 Acres) which too seems to be a duplicate grant. Section 10(4) of the Act, 1912 envisages that allottee or a purchaser of State land would attain status of tenant, only after he had been placed in possession of land by an order or with the permission of the District Officer Revenue (defunct Collector). Reliance is also placed on 1992 MLD 37 (Lahore). As such, both the appellants are to deemed tenants of the aforesaid Chaukri/Field Survey Nos,855, 856, 825 and 826 and have no right or title on the said land as envisaged in subsection (4) of section 10 of the Act, 1912. 26.Beside other conditions, the appellants had also not fulfilled the important condition No,8 laid down in the grant of land to the peasant in the Ghulam Muhammad, Barrage Area Rules notified vide No, Col-7/113-97, dated 12-3-1959 in respect of land which is said to be the duplicate grants which required them to cultivate the land personally for 20 years. In a case reported in 1998 SCMR 468, the Honourable Supreme Court of. Pakistan refused to grant leave to appeal when the petitioners filed to cultivate land in accordance with terms and conditions of their allotment. 27. As regards the effect of entry in mutation register, there is a plethora of rulings that entries in the mutation record are fiscal in nature, and do not conclusively establish ownership in favour of person in whose name such entries have been made and provide merely a rebuttal material. It has also been held that mutation entries are made only for correcting the entries in the Revenue Record to facilitate the recovery of land revenue. Entries in mutation register and other Revenue Records are not in the nature of title deeds, but only have evidentiary value in support of title. Reliance is placed on 1993 SCMR 618, PLD 1993 SC (AJ&K) 24, 1992 SCMR 1832, 1986 SCMR 598, etc. 28. Suffice to say, if all the terms and conditions of sale are not fulfilled, and agreement or conveyance deed conferring full ownership rights on the grantee…
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