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Writ Petition No. 5094 of 1986, decided on 1st October, 1986.

---S. 18--Constitution of Pakistan (1973), Art. 199 Constitutional jurisdiction--Respondent admittedly did not enjoy status of tenant under petitioner's predecessor-in-interest in respect of disputed land at time of confirmation of consolidation scheme--Entries in crop register clearly showed that even if respondent occupied land after confirmation of such schemes, he had voluntarily abandoned possession and handed over same to petitioner--Order of consolidation officer affirmed by appellate authorities below treating respondent as tenant under petitioner or his predecessor-in-interest was passed without looking into entries in crop register and without taking into consideration instructions given by High Court in remanding case to appellate authority--Such order, held, was patently illegal and was liable to be set aside in constitutional Jurisdiction of High Court.

Mian Abdul Latif for Petitioner.

Masood Ahmad Malik for Respondent No. 1.

Date of hearing: 1st October, 1986.

This is the second round of litigation between the parties before this Court. The facts of the case have already been given in detail in my Judgment dated 16th May, 1983 passed in Writ Petition No. 3694/82 and need not be repeated. In the said Judgment, the order dated 28th April, 1982 of the learned Member Board of Revenue was set aside and the case remanded to him with the direction to decide the petitioner's revision afresh. After post remand hearing, the learned Member vide his order dated 18th October, 1984 again dismissed the petitioner's revision. This order is under challenge in this writ petition.

2. I have heard the learned counsel for the parties and examined the available record. The dispute between them relates to the tenancy rights in the land measuring 19 Kanals 2 Marlas comprising Khasras Nos. 19, 20 and 12/2. This land alongwith some other area was jointly held by Muhammad Hussain, Allah Ditta and Karim Bakhsh but as a result of consolidation scheme approved on 10th March, 1972 it fell to the lot of the latter, who sold it to the petitioner.

3. A controversy arose as to whether or not Lal Din, respondent as a tenant was entitled to the possession of the land under section 18 of the Consolidation of Holdings Ordinance, 1960. By his order dated 13th August, 1981, the Consolidation Officer treated the respondent as tenant under the petitioner's predecessor-in-interest namely Karim Bakhsh and held him entitled to the possession. Accordingly the possession was delivered to him. The petitioner's appeal against that order failed and his revision. petition was also dismissed by the learned Member Board of Revenue on 24th August, 1982. The reason which prevailed with him in dismissing the revision petition was--

"The entries in the record of rights as existed in the year 1972, would show that at the time of confirmation of the Scheme on 10-3-1972 the land in dispute was possessed by Lal Din, respondent as tenant of Karim Bakhsh allottee and as such he was entitled to continue in possession in the same character in view of section 16 of the Ordinance and any subsequent change in the ownership of the land was in no way to detract from his character as a tenant or affect the incidence of tenure as previously existed."

In accepting Writ Petition No.3694/82, took the view.

"------------the Scheme was sanctioned on 10th . March, 197 and for determination of the controversy as to who was in cultivating possession of the land, the entries in the crops-register relating to Rabi, 1972, would be relevant. It is discernible from the Khasra-girdawari that in Rabi, 1972, Lai Din, respondent was in the cultivating possession of Khasra No.19/2 only, which measures 3 Kanals 2 Marlas and that too under Allah Ditta 'Hissadar'. Out of the remaining land Khasra No.12/2, 19/1 and 20/1 were in possession of Muhammad Hussain, 'Hissadar' and whereas Khasra No. 20/2 was under the cultivating possession of Allah Ditta through Sharif, Imam Masjid. The consolidation operations reportedly were carried on the basis of Register Haqdaran for the year 1967-68. The position obtaining in this record so far as Lai Din's cultivating possession is concerned, is not different than the one depicted by Khasra-girdawari."

4. The reasons given in the impugned order for dismissal of the revision petition are:-

"After having heard the arguments on both sides and on perusing the relevant record, I am of the view that even though the respondent had not been specifically recorded as tenant of the disputed land under Karim Bakhsh, yet, it would appear from the entries of Khasra Girdawaris for the year 1978-79 he had been cultivating the land as tenant under Muhammad Habib petitioner and which fact the petitioner himself admitted in his ejectment suit filed before the Assistant Collector (Cons.) and duly corroborated by the affidavits of Muhammad Hussain, Allah Ditta and Muhammad Sharif, Imam Masjid. Thus the petitioner by his own conduct and admission was precluded, under section 31 of the Evidence Act, from denying the respondent's status as tenant under him and was, therefore, not entitled to claim his ejectment from the land in terms of section 18 or 18-A of the Consolidation of Holding Ordinance, 1960 ....

5. I am constrained to observe that the impugned order not only travels beyond the scope of the remand order but has also been made in oblivion of the entries in the revenue record. It is to be noticed that the Consolidation Officer had proceeded under section 18 of the Consolidation of Holdings Ordinance. It was on account of his order dated 13th August, 1981 that the parties were pushed into further litigation. For the purposes of this section, the respondent's status at the time of confirmation of scheme alone was relevant. This Court had already given a verdict that the respondent did not enjoy the status of a tenant when the Scheme was confirmed. The case was sent back to the learned Member Board of Revenue for fresh decision in accordance with the principle that in exercise of its constitutional Jurisdiction, this Court is to substitute its loathe decision for the order of the Tribunals below. In the impugned order, the learned Member Board of Revenue accepts the position that at the relevant time, the respondent was not recorded as a tenant under the petitioner's predecessor-in- interest i.e. Karim Bakhsh. He has, however, based his decision on the entries in the Khasra Girdawari for the year 1978 and the ejectment suit filed by the petitioner against the respondent. The copy of the plaint annexed to the written statement shows that the suit pertained to Rabi and Kharif, 1978. The case of the petitioner is that after the suit, respondent voluntarily abandoned the possession of the land but he was again inducted therein under the Consolidation Officer's order dated 13th August, 1981. The plea of abandonment of possession finds support from the entries given in the crop-register, reproduced below:-

As in pursuance of the Consolidation Officer's order aforesaid, the possession was delivered to the respondent, from Kharif, 1981 onward his name figures in the crop-register.

6. It is obvious that the learned Member did not look into the said entries figuring in the crop-register. The premises on which he proceeded to maintain the orders of his subordinate authorities are not tenable, as subsequent entries in the crop-register, unequivocally indicate that the respondent ceased to be a tenant after Kharif, 1978. These entries amply support the version of the petitioner. As already stated the validity of the Consolidation Officer's order was, the subject-matter of an appeal and revision before the Board of Revenue. This order has been found to be patently illegal and is thus liable to be set aside. Likewise all orders based and proceedings based on it are rendered illegal.

7. For the foregoing reasons this writ petition is accepted. The Consolidation Officer's order dated 13-8-1981, the appellate and the revisional orders passed on the basis thereof, are declared to have been passed without lawful authority. Consequently, the parties shall be restored to the position existing immediately before the order dated 13-8-1981. They are left to' bear their own costs.

H . B . T / M-112/ L Petition accepted

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