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Review Side No. 18 of 1954‑55, decided on 27th May, 1955, District Multan.

S. 16‑Tenant in possession of tenancy for more than three years alleged to be guilty of fraud in respect of acquirement of the other half‑Tenancy cannot be resumed though action can be taken against tenant if permitted by condition 12 (c) of tenancy.

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---Two reviews rejected‑Third granted.

‑The facts of this case briefly are that Khuda Bakhsh, father of Muhammad Ismail petitioner and Chandu were jointly granted a square of land in equal shares in Chak No. 15/F in the Haveli Project Colony under the statement of conditions published with Punjab Govern ment Notification No. 4045‑C., dated 21st September, 1940 as subsequently amended. Khuda Bakhsh entered into posses sion of the land in his own behalf as well as on behalf of his co‑sharer. Chandu however never appeared on the scene and in 1943 it was given out that he had died with the result that a mutation of inheritance was entered and sanctioned in favour of Khuda Bakhsh on 23rd February, 1944. Five years latter on 15th January, 1949 a complaint was made to the Colonization Officer that Chandu was a fictitious person and Khuda Bakhsh had practised fraud on Government to obtain a square of land. Permission was thereupon given to review the mutation about inheritance of Chandu. Further, on the recommendations of the Commissioner my learned predecessor vide his order contained in his memorandum No. 4701/C, dated 18th August, 1953 resumed the entire grant of one square and gave permission to register a case against Khuda Bakhsh under section 420 of the Penal Code. Khuda Bakhsh made two attempts to get this order reviewed but he failed. This is a third application which is now under consideration before me.

The main ground that has been taken up is that action could not be taken to resume the share of Khuda Bakhsh as under the proviso to section 16 of the Colonization of Govern ment Lands Act he had been in possession of the tenancy for more than three years. This section runs as follows:‑

"If any person who after the commencement of this Act has been put in possession of land in a colony as a tenant shall have given false information intending or having reason to believe that any officer of the Crown may be thereby deceived regarding his qualifications to become a tenant, he shall be deemed to have committed a breach of the condi tions of his tenancy;

Provided that this section shall not apply to persons who have been in possession of a tenancy for more than three years or to any person who has acquired a right of ownership."

Obviously Khuda Bakhsh who took possession of the land on 3rd December, 1942 could not be proceeded against in 19 ‑53 under section 16. Condition 11 (3) also does not seem to be applicable to this case. If at all it is Khuda Bakhsh who has committed an offence action against him can be taken under condition 12 of the grant in case he is convicted as al result of his prosecution under section 420 P. P. C. Even otherwise a duty is not laid on him under the conditions of the grant to report the commission of an offence which prima facie seems to fall under section 420 P. P. C.

No appeal has been preferred on behalf of Chandu though some evidence has been produced to show that entries about a person of this name exist in the original village of the grantees as an holder of land and allotment has been made to this person in lieu of this land. As a result I would accept this application and direct that the petitioner's share of the grant should be restored to him. He should, however, be prosecuted under section 420 of the Penal Code as already directed by my learned predecessor and action can be taken against him if permitted under condition 12 (c) in case he is convicted and sentenced to a term of imprisonment exceeding one year.

A. H. Petition partly allowed.

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