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Appeal No. 45 of 1963‑64, decided on 16th January 1964, District Rawalpindi.

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---‑Appointment‑Hereditary claim‑Mere fact that no claimant is available within degree of relationship mentioned in r. 17 (ii)‑Does not mean that Lambardari becomes nonhere ditary in character‑Rule of primogeniture to be taken into con sideration alongwith other factors‑Punjab Land Revenue Rules, r. 17 (ii).

Jagat Singh v. Bhagat Singh P L D 1950 Pb. (Rev.) 68 (2).

Jehandad a permanent Lambardar of village Pacca Khanpur district Rawalpindi, died without issue and the Collector appoin ted Barkat Ali, appellant to the post under the provisions of Land Revenue Rule 17 (ii), on the ground that he was the nearest eligible heir and otherwise suitable. Thus the appointment was not made solely on the ground of inheritance as the appellant was not a descendant in the main line of the paternal great‑grand father of the deceased Lambardar but he was the nearest eligible relation. Though outside the prescribed degree. The learned Commissioner interfered in appeal. He held that the Lambardari was not hereditary in character as none of the contestants were descendents in the main line of the paternal great‑grand father of the last incumbent and the appointment should therefore be made under Land Revenue Rule 15. The case was accordingly remanded to the Collector for making a fresh selection. A second appeal has now been filed.

The main argument that has been urged before me is that the learned Commissioner was not correct in law in holding that the Lambardari is not hereditary. The post is undoubtedly here ditary in character and the question merely is that as the case is not fully covered by Land Revenue Rule 17 (ii) are the claims of the collaterals to be thrown out on the ground that they do not come within the degree of relationship enunciated in it. Reliance in this behalf is placed on Jagat Singh v. Bhagat Singh (P L D 1950 Pb. (Rev.) 68 (2)), a case in which the same question arose regarding the intention of Land Revenue Rule 17 (ii) Miles Irving, F. C. held that the rule is nugatory in character and the effect of it is that being outside the prescribed degree of primogeniture is a factor which has to be taken into consideration with the other relevant factors in making the appointment. The amount of weight which is to be given to this factor of relationship will vary with the circum stances of each case. Thus the law quite clearly is that the mere fact that no claimant is available within the degree of relationship mentioned in this rule does not mean that the Lambardari becomes non‑hereditary in character, but in making the appointment in such cases the Collector will take into consideration the rule of primogeniture as merely one of the factors alongwith the other factors which are required to be considered. In this particular case the Collector though he has not specifically mentioned the other factors, has stated as follows:‑

"As Barkat Ali is a collateral of the deceased Lambardar from the senior male branch and is otherwise also fully qualified for the appointment as reported by the Tehsil Revenue Officers and the Revenue Assistant, (he) has stronger claim than Nawazish Ali to succeed the post of Lambardar.

Apparently the Collector has exercised his discretion in making the appointment after taking into consideration the matters which have normally to be considered and has not committed any irregularity or illegality. His decision should therefore ire allowed to stand. For the above reasons I would accept the appeal and uphold the appointment of Barkat Ali as Lambardar.

S. Q. Appeal accepted.

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