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R.O.R. No. 1080 of 2006, decided on 4th August, 2008.

---Ss. 42 & 164---Sale of land---Sanction of mutation---Predecessor-in-interest of the petitioners was owner of land measuring 587K-11 M along with share in Shamlat---Predecessor-in-interest of the petitioners sold only share of Shamlat to the predecessor-in-interest of the respondents, but due to mistake the actual land was also transferred in favour of the predecessor-in-interest of respondents vide mutation---When predecessor-in-interest of the petitioners contended the predecessor-in-interest of the respondents, agreed to return actual land and he returned same vide mutation---Land having been acquired by Development Authority only original mutation was incorporated in the record of the Authority---When right of return of the predecessor-in-interest of the petitioners was confirmed by E.A.C.O., the mutation was initially sanctioned in favour of predecessor-in-interest of the respondents vide another mutation, but later on, in view of mutation another mutation was sanctioned in favour of the predecessor-in-interest of the petitioner and right of return was given---Feeling aggrieved of the order passed by E.A.C.O. and said mutation, predecessor-in-interest of respondent filed appeal before the Additional Commissioner which was dismissed---Assistant Commissioner concerned confirmed the right of return in respect of share of Shamlat and gave 27-K, 14-M as right of return in Shamlat to the predecessor-in-interest of the respondents---Petitioners assailed the order of Assistant Commissioner before the Executive District Officer (Revenue) through appeal and same was dismissed---Validity---Executive District Officer (Revenue) had ignored the findings of the Member(Judicial) Board of Revenue recorded in his order in revision; he had also not recorded whether the orders regarding the adjustment and confirmation were passed by the competent authorities or not---Order passed by the Assistant Commissioner and Executive District Officer(Revenue) were illegal, without jurisdiction and against the right of the petitioner and were liable to be set aside---Impugned orders were set aside by Member, Board of Revenue and case was remanded to Executive District Officer (Revenue) with the direction to pass a fresh order in accordance with law keeping in view the findings of the Member (Judicial-I) Board of Revenue. Muhammad Irshad Chaudhary for Petitioners. Clerk of Sameer Ijaz for Respondents Nos. 1 to 9.

This revision petition has been filed under section 164 of the Land Revenue Act, 1967 against the order, dated 5-4-2006 of the Executive District Officer (Revenue), Bhakkar whereby the appeal of the petitioners against the order, dated 15-12-1996 of the A.C./Collector, Sub-Division Bhakkar was dismissed. 2. It has been stated that the predecessor-in-interest of the petitioners was owner of land measuring 587K-11M along with share in Shamlat in Khata No.300 in Mauza Khansar, Tehsil and District Bhakkar. The predecessor-in-interest of the petitioners sold only share in Shamlat to the predecessor-in-interest of the respondents but mistakenly the actual land was also transferred in favour of the predecessor-in-interest of the respondents vide Mutation No.615, dated 19-6-1948. When the predecessor-in-interest of the petitioners contacted the predecessor-in-interest of the respondents, they agreed to return the above said land. The above said land was returned vide Mutation No.847, dated 10-7-1953. As the land was acquired by TDA in 1951, only mutation No.615 was incorporated in the record of the TDA. As such, when right of return of the predecessor-in-interest of the petitioners was confirmed by EACO vide order, dated 5-2-1984, the mutation was initially sanctioned in favour of the predecessor-in-interest of the respondents vide Mutation No.41 but later on in view of mutation No.847 mutation No.65 was sanctioned in favour of the predecessor-in-interests of the petitioners and right of return was given. Feeling aggrieved of the order, dated 15-2-1984 of the EACO and Mutation No.65, dated 22-12-1985, the predecessor-in-interest of the respondents filed an appeal before the Additional Commissioner, Sargodha. The same was dismissed vide order, dated 13-11-1994. The respondents assailed the order, dated 13-11-1994 before the Member, Board of Revenue, Punjab through revision which met the same fate vide order, dated 24-8-1998. After availing all the forums on the revenue side, the predecessor-in-interest of the respondents challenged the order of EACO and Mutation No.65 in the Civil Court. However, the suit was dismissed vide order, dated 18-3-2001. Thereafter, an appeal was filed which was also dismissed vide order, dated 31-5-2005. Meanwhile, A.C. Bhakkar confirmed the right of return in respect of the share of Shamlat and gave 27K-14M as right of return in Sliamlat to the predecessor-in-interest of the respondents vide order, dated 15-12-1996. The petitioners assailed the order of the A.C., Bhakkar before the Executive District Officer (Revenue) through appeal: The same has been dismissed vide order, dated 5-4-2006. The orders, dated 15-12-1996 and 5-4-2006 of the A.C., Bhakkar and Executive District Officer (Revenue), Bhakkar respectively are illegal, without jurisdiction and against the rights of the petitioners and are liable to be set aside. 3. It has been contended that the impugned orders are against law and facts proved on record. Both the Courts below did not advert to the record and specially mutation No.847, dated 19-7-1953 in which it is clearly mentioned that actual land of the predecessor-in-interest of the petitioners along with share in Shamlat has been returned to the predecessor-in-interest of the petitioners. Therefore, land measuring 27K-14M given to the predecessor-in-interest of the respondents as right of return is against the record and they are not entitled to get the same. Therefore, orders of both the Courts below are liable to be set aside. It has been prayed that this revision petition may be accepted and impugned orders, dated 15-12-1996 and 5-4-2006 of the A.C., Bhakkar and Executive District Officer (Revenue), Bhakkar respectively may be set aside and land measuring 27K-14M may be given to the petitioners as right of return. 4. The respondents were summoned. They have attended the proceedings through their counsel. The learned counsel for the petitioners and respondents have submitted their written arguments which have been placed in the file. 5. In his written arguments, the learned counsel for the petitioners has stated that vide mutation No.615, dated 19-6-1948, land measuring 587K-11M of ownership and not share in the Shamlat was sold to Umar, Sultan and Muhammad but was returned to the predecessor-in-interest of the petitioners vide mutation No.847 sanctioned on 19-7-1953. Thereafter, the land was acquired by the TDA and the aforesaid land was confirmed and right of return was given by the EACO vide order, dated 5-2-1984 and mutation No.41 was sanctioned in pursuance of the aforesaid order on 15-2-1984. In this way, the dispute regarding return of land measuring 587K-11M remained no .more a dispute. Though the successors-in-interest of Umar and Sultan challenged order, dated 5-2-1984 and mutation No.65 in favour of the petitioners but appeal and revision were dismissed. Civil suit filed by the predecessor-in-interest of the respondents was dismissed and finally their appeal was dismissed by the Additional District Judge vide order, dated 31-6-2005. In this way, there remained no dispute regarding the aforesaid land measuring 587K-11M which was ownership of the petitioners. The right of return of the Shamlat land measuring 27K-14M was given to the respondents vide order, dated 15-12-1996 passed by the A.C., Bhakar as if the ownership land was only returned and share in Shamlat was not returned. This was factually incorrect. As such, the petitioners challenged the order before the Executive District Officer (Revenue) through appeal which was dismissed vide order, dated 5-4-2006. The share of Shamlat was never sold through Mutation No.615 and whatever rights were transferred vide the aforesaid Mutation the same were retransferred to the petitioners vide mutation No.847. As such, right of return regarding share in Shamlat could not have been given to the respondents as share of Shamlat is a right unless specifically transferred and no benefit can be given merely by transfer of the ownership rights. In this regard, provisions of Shamlat Ordinance, 1959 are relevant. Both the Courts below failed to consider the actual point in controversy and misconstrued as if the petitioners were claiming right in the property measuring 587K-11M. The appeal of the petitioners was dismissed by the Executive District Officer (Revenue) vide impugned order though the case was that the share in the Shamlat on the basis of the aforesaid ownership could not be given to the respondents. The petitioners are entitled to get the right on the basis of that right. As such, land measuring 27K-14M was wrongly given to the respondents. It was the ownership of the petitioners. It has been prayed that the revision petition may be accepted, the impugned orders, dated 15-12-1996 and 5-4-2006 of the A.C., Bhakkar and the Executive District Officer (Revenue), Bhakkar respectively may be set aside and the land measuring"27K-14M may be given to the petitioners as a right of return. 6. On the other hand, the learned counsel for the respondents has stated in his written arguments that missal adjustment No.206 is not related to this ease. Brief facts of missal adjustment No.206 are that the predecessor-in-interest of the present petitioners, Bhakkar Khan was owner of land measuring 587K-11M along with share in Shamlat in Khata No.300 in Mauza Khansar, Tehsil and District Bhakkar. The share of each landowner in Shamlat was at the scale of 7 marlas per each kanal of proprietary land. The predecessors-in-interest of the present petitioners sold only his share in Shamlat to the predecessor-in-interest of the answering respondents namely Umar and Sultan sons of Hussain through registered sale-deed, dated 2-3-1946 but mistakenly Mutation No.615, dated 19-6-1948 was attested regarding his total holding instead of Shamlat only. On coming to know the above fact, the predecessors-in-interest of the respondents returned the actual land back to the predecessor-in-interest of the present petitioners vide Mutation No.847, dated 10-7-1953. In the meanwhile, the land in dispute was acquired by the Thal Development Authority in 1951 vide Notification, dated 4-4-1951. As such, only the earlier Mutation No.615 (regarding total holding) could be incorporated in the record of T.D.A. and the subsequent Mutation No.847, (regarding Shamlat only) could not be given effect in revenue record. On 5-.2-1984, the EACO confirmed/ adjusted the land as right of return in favour of the predecessor-in-interest of the answering respondents on the basis of earlier Mutation No.615, dated 19-6-1948 and, therefore, on the basis of subsequent Mutation No. 847, dated 4-4-1951. Accordingly Mutation No.41 was sanctioned on 29-11-1984. However, subsequently a. fresh Mutation No.65 was sanctioned on 22-12-1985 in violation of the order, dated 5-2-1984 of the EACO, Bhakkar as well as Mutation No.41. The appeal of the predecessor-in-interest of the answering respondents against Mutation No.65, dated 22-12-1985 before the Additional Commissioner, Sargodha was dismissed vide order, dated 13-11-1994 on the ground of limitation. The respondents assailed the order, dated 13-11-1994 before the Member, Board of Revenue, Punjab which was also dismissed on 24-8-1998. The answering respondents agitated "the matter through civil suit which was dismissed vide judgment and decree, dated 18-1-2003. Their appeal was dismissed by the Additional District Judge on 31-5-2005 and the civil revision regarding the case pertaining to missal adjustment No.206 is now pending in the High Court, Lahore. The present petitioners have intermingled/confused the case regarding Missal No.206 with the case regarding Missal Nos.266/283 and have assailed the order of Assistant Commissioner, Bhakkar before the Executive District Officer (Revenue), Bhakkar through appeal. The same was dismissed vide order, dated 5-4-2006. This order has "been assailed by the petitioners through the instant revision petition. Adjustment File No.206 pertains to adjustment of land owned by Bhakkar Khan. The case in this regard is pending in the civil Court and it has no nexus with the instant case. Adjustment File Nos.266/283 pertains to the land owned by the answering respondents which they purchased from certain land owners. Land purchased from Bhakkar Khan is not included in this adjustment file. The petitioners, therefore, have no concern/locus standi in this case. In the other case (Missal Adjustment No.206), which is being confused by the petitioners with the instant case, the share of Shamlat was purchased by the predecessor of the answering respondents from Bhakkar Khan, predecessor of the present petitioners, initially through Mutation No.847. In fact Mutation No.615 had not completely cancelled the original mutation No.847 but it had cured the lacuna. It was thus a "sehat intiqal" which had given certain rights in favour of the answering respondents. The said mutations were passed on the basis of registered deed, dated 2-3-1946. The rights of the answering respondents on the basis of this registered deed are still intact. This deed was never challenged by any one in any Court and is still holding the field. The impugned orders may be maintained. The revision petition may be dismissed. 7. In his para-wise comments, the Executive District Officer (Revenue), Bhakkar has stated that land measuring 27K-14M does not relate to Mutation No.847, dated 17-9-1953 and the said land was purchased by the respondents. The appellants (petitioners) have no concern with the above land. It has been prayed that the revision petition may be dismissed. 8. I have considered the arguments of the learned counsel for the petitioners and the respondents and have gone through the para-wise comments of the Executive District Officer (Revenue), Bhakkar as well as the documents placed in the file. I am of the view that the Executive District Officer (Revenue), Bhakkar has ignored the findings of the learned Member (Judicial-I), Board of Revenue, Punjab recorded in his order, dated 24-8-1998 in R.O.R. No.456 of 1995. He has also not recorded whether the orders regarding the adjustment and confirmation were passed by the competent authorities or not. 9. For the above mentioned reasons, the revision petition is accepted, the order, dated 5-4-2006 of the Executive District Officer (Revenue), Bhakkar is set aside and the case is remanded to the Executive District Officer (Revenue), Bhakkar with the direction to pass a fresh order in accordance with law keeping in view the findings of the learned Member (Judicial-I), Board of Revenue, Punjab recorded in his order, dated 24-8-1998. A copy of this order and a copy of R.O.R. No.456 of 1995 may be sent to the Executive District Officer (Revenue), Bhakkar for further necessary action. H.B.T./18/Rev. Case remanded.

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