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R.O.R. No.1547 of 1984, decided on 18th September, 1984.

‑‑‑S.164‑‑Colonization of Government Lands (Punjab) Act (V of 1912), S.10‑‑Revisional jurisdiction, exercise of‑‑Allotment of Ihatas‑‑Two contradictory orders passed by Appellate Court relating to same Ihatas, to different claimants‑‑Effect‑‑Where two orders relating to allotment of Ihatas were contradictory in nature, and allotted to different persons, subsequent order whereby the previous order was contradicted was set aside by Board of Revenue in revisional jurisdiction.

Malik Talib Hussain for Petitioners.

Ch. Khurshid Alam for Respondents.

These are two revision petitions against the separate orders of Addl. Commissioner, Faisalabad dated 21‑5‑1984 whereby he accepted the appeals of the respondents and allotted them Ihata No.39 measuring 1K‑‑19M‑‑6S situated in Chak No.268/JB, collectively in equal shares in each case against the order of AC/Collector Jhang dated 20‑4‑1984 and 29‑2‑1984 respectively vide which he did not allot Ihata in dispute to any of the parties.

2. The facts of the cases are that Amir Muhammad Khan, Mapal Khan and Muhammad Nawaz and Pehlwan submitted application for the allotment of the disputed Ihata. The AC/Collector observed that Muhammad Bakhsh owned 22 Kanals of land and had residential plot of 5M‑‑6S. Similarly Mapal own 27K‑‑8M of land and had a residential plot of 3 marlas and as such they were not entitled for allotment of the Ihata. He observed that Amir owned only lOK‑‑15M of land and though he did not own any residential site yet he was not entitled for allotment of Ihata. As regards Muhammad Nawaz the AC/Collector observed that he owned only 17 marlas of agricultural land and was not entitled for allotment of Ihata. He observed that Pehlwan owned 46K‑‑10M of agricultural land and already had 3 marlas of residential site and thus was not entitled for allotment. Aggrieved by this order two separate appeals were filed by Amir, Muhammad Bakhsh, Mapal and the other by Muhammad Nawaz and Pehlwan. The Add[. Commissioner after considering the merits of the appellants allotted half of Ihata No.39 collectively to Amir and Mapal in equal shares and the other half to Muhammad Nawaz and Pehlwan collectively in equal shares. Hence these two revision petitions.

3. I have heard the learned counsel for the parties at length and gone through the grounds of revision. The learned counsel for the petitioners contended that the disputed Ihata was abadkari Ihatas and were in possession of the petitioners. He contended that the AC/Collector on 4‑10‑1975 had allotted one kanal out of Ihata No.39 measuring 1K‑‑19M‑‑6S to Allah Bakhsh son of Amir petitioner. He contended that Amir was delivered the possession of his allotted portion and he constructed house in it. He contended that on the application of Muhammad Nawaz son of Allah Bakhsh, the AC/Collector cancelled the allotment of Allah Bakhsh petitioner No.1 on 2‑8‑1983. He contended that Allah Bakhsh filed a review application before the AC/Collector who accepted it on 3‑9‑1983 and restored his allotment by imposing a fine of Rs.100 under section 24 of the Colony Act for not making payment in time. He contended that Muhammad Nawaz filed appeal before the Addl. Commissioner who rejected it on 19‑3‑1984, and thus the allotment of one kanal out of the disputed 1hata‑remained .in favour of Allah Bakhsh.

4. He contended that the respondents, filed application for the allotment of Ihata No.39 in September 1983 and their application were rejected by the AC/Collector on 20‑2‑1984 and 29‑2‑1984 holding them non‑entitled. He contended that respondents filed appeals before the Addl. Commissioner who vide his order dated 21‑5‑1984 allotted half of Ihata to Amir and Mapal in equal share and .the other half to Muhammad Nawaz and Pehlwan in equal share. He argued that although Allah Bakhsh petitioner had been allotted a portion of the Ihata in year 1975 and litigation against this allotment was going on yet the respondents did not bring this fact to the notice of the Addl. Commissioner and while filing the appeals did not implead him as party. He contended that petitioners Nos.2 to 4 had filed application before the Addl. Commissioner for the allotment of the remaining portion of the Ihata but he without disposing of their applications in their absence passed the impugned order allotting the Ihata to the respondents. He contended that the AC/Collector had refused allotment to the respondents being not entitled but the Addl. Commissioner without considering the fact that 1 kanal out of the disputed Ihata already stood allotted to the petitioners and had been kept intact by him in appeal ‑ on 19‑3‑1984 passed altogether an improper order by allotting the entire Ihatas to the respondents. He contended that Amir was unmarried and was residing with his father who already on 2 Ihatas measuring 1K‑‑3M and it had been ignored by the Additional Commissioner. He contended that Mapal has allotted an Ihata of 3 marlas and was unauthorised occupation of an Ihata measuring 2 kanals and thus was also not entitled. He contended that the Additional Commissioner ignored the claim of the petitioners who owned 15 acres of land and have better claim for the allotment of the Ihata than the respondents. He contended that the respondents cannot file a joint application for the allotment of the Ihata.

5. The learned counsel for the respondents contended that he admits that Muhammad Nawaz son of Allah Bakhsh one of the respondents had filed appeal against the order of AC/Controller Jhang dated 3‑9‑1983 vide which he had restored the allotment of one kanal out of Ihata No.39 to Allah Bakhsh one of the petitioners by reviewing his earlier order dated 2‑8‑1983 vide which he had cancelled his allotment. He contended that the appeal was rejected by the Additional' Commissioner on 19‑3‑1984 but he did not file any revision against that order. He contended that the respondents had applied for the allotment of the Ihata but the AC/Collector had rejected their applications on 20‑2‑1984 respectively. He argued that they filed appeal before the Additional Commissioner who accepted the 'appeals and allotted Ihata to them on 21‑5‑1984. He contended that he had no objection against the allotment of one kanal made in favour of Allah Bakhsh one of the petitioners. He urged that the remaining Ihata be allowed to stand in their favour.

6. The Patwari stated that Allah Bakhsh petitioner owned 104K‑‑6M of agricultural land but he has no other Ihata except one kanal out of Ihata in dispute. He stated that Muhammad Nawaz Nazir Ahmad, Muhammad Rafique sons of Amir each owned 50K‑‑12M agricultural land and residential site of 5 marlas out of Ihatas No.96 and 98. He stated that Amir son of Allah Bakhsh respondent owned 9K‑‑19M of agricultural land but holds no Ihata and that Mapal respondent owned 27K‑‑8M of agricultural land and held Ihata No.47 measuring 3 marlas. He stated that Muhammad Nawaz respondent owned only 17 marlas agricultural land but held no Ihata whereas Pehlwan owned 46K‑‑10M of agricultural land and owned Ihata No.97 measuring 3 marlas.

I have considered the arguments and perused the record of the case. The appeals before the Additional Commissioner were filed jointly by the respondents which were entertained and decided by the Additional Commissioner in their favour without considering the merits of each appellant before him. An area of one kanal out of the disputed Ihatas already stood allotted to Allah Bakhsh. The Additional Commissioner himself had confirmed it on 19‑3‑1984 by rejecting the appeal of Muhammad Nawaz respondent. This area could not be allotted to the respondents by accepting their appeal on 21‑5‑1984. These orders of the Additional Commissioner were improper. The Addl. Commissioner has passed two different orders. The order dated 21‑5‑1984 passed by the Additional Commissioner are therefore set aside. The revision petitions are accepted to the extent of one kanal of the Ihata. Allah Bakhsh has added Muhammad Nawaz etc. , his brothers in the revision petitions who were neither applicants before the Collector nor had ever been allotted any area out of the Ihata nor had filed any appeal. They therefore could not agitate the matter before this Court and thus have no case. The Assistant Commissioner/ Collector should consider the cases of the applicants before him at the time of allotment for the remaining Ihata measuring 19M‑‑6S. He should examine the merits of each individual separately with regards to the holding of agricultural land, Ihatas previously held, their family members and the cattle heads maintained by them etc. , and then allot the Ihata as per instructions of the Government. The cases are thus disposed of for the allotment of the remaining portion of the Ihata.

A.A./230/R Order accordingly.

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