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R.O.R. No. 2852 of 1982, decided on 26th November, 2008.

---S.23---West Pakistan Land Revenue Act (XVII of. 1967), Ss. 39 & 164---Consolidation of holdings---Nature and distribution of Shamlat land---Ownership of respondents over the land attached to the 9 Wells, which was part of Shamlat Deh, was conditional as per Wajib-ul-Arz of 1880, 1903-04 & 1924-25---Said land was partitioned by Consolidation Officer along with Shamlat land among shareholders on the basis of proprietary area owned by each, as stipulated in the said Wajib-ul-Arz---Counsel for respondents had objected to said distribution contending that said land was sole ownership of respondents and was not part of Shamlat Deh---Order of consolidation was rejected by Addl. Commissioner (Cons.) and Consolidation Scheme was set aside vide impugned order---Rights of landowners pertaining to distribution of Shamlat Deh were determined on the basis of Wajib-ul-Arz, which would take precedence over entries in successive Jamanbandies including Jamanbandi immediately preceding the consolidation---Addl. Commissioner vide impugned order had erroneously found that Jamanbandi immediately preceding consolidation was vital for consolidation---Wajib-ul-Arz and next two settlements revealed that land attached to and under the wells, was part of Shamlat Deh and was granted to respondents on the condition that at the time of distribution of village "Shamlat, any area in that land owned by respondents in excess of their right would be deducted from their share out of that land and distributed among share-holders of remaining village Shamlat land---Conditions contained in Wajib-ul-Arz were binding on concerned party---Entries by the Revenue Officer in the revenue record not supported by any document, could not create any right, title or interest in the land---Land in question being part of Shamlat Deh, no entries in revenue record made subsequently could change the initial character of the land which was Shamlat Deh---No record or legal basis was available to substantiate the fact that land in question which initially was Shamlat Deh had lost that character with the passage of time---Jamanbandi was merely a record of rights which would give effect to conditions contained in Wajib-ul-Arz, while Wajib-ul-Arz was a primary document and the Jamanbandi would hold only a secondary position in relation to Wajib-ul-Arz--As per condition of Wajib-ul-Arz land attached to and under the Wells was part of Shamlat Deh and it was protected against partition only to the extent of share of respondents in total Shamlat Deh---Impugned order of Addl. Commissioner, in circumstances, being not lawful, was set aside. Sh. Naveed Shahryar for Petitioners. Ch. Ihsan ul Haq Bhalli for Respondents Nos. 1, 3, 4, 7, 8 and 11. Muhammad Irshad Chaudhary for Respondents. Nos. 5, 6, 13 and 14. Ch. Iqbal Ahmad Khan for Respondents.

Present case has come up by way of a remand order of the Honourable Supreme Court in Civil Appeal No.1416 of 2004, dated 16th February, 2007 with the direction for decision as per law. 2. Brief facts of the case are that Consolidation Scheme of village Hassu Balail, Tehsil Shorkot, "District Jhang was confirmed by Consolidation Officer on 30-8-1981. On Revision Petition filed by respondents the Addl. Commissioner (Cons.) Sargodha set aside the Consolidation Scheme, vide order, dated 27-9-1982 Board of Revenue accepted Revision Petition of the petitioner against order of ADC (C) Sargodha vide order, dated 3-10-1984. Lahore High Court, Lahore in Writ Petition No. 4864/1984 set aside order of Board of Revenue vide order, dated 11-10-2000. Petitioner then filed CPLA No.1416 of 2004 on which the Honourable Supreme Court has remanded the case to Board of Revenue for fresh decision as per law. 3. The gist of the argument of counsel for the petitioner is that ownership of respondents over the land attached to the 9 wells (3019 kanals 12 marlas) was conditional as per Wajib-ul-Arz of 1880, 1903-04 and 1924-25. Land attached to and under the 9 wells was part of Shamlat Deh and partitioned by the Consolidation Officer along with Shamlat land among shareholders on the basis of proprietary area owned by each was as per stipulated in the aforementioned Wajib-ul-Arz. Determination and distribution of Shamlat is done as per procedure laid down in Wajibul-Arz. The counsel therefore prayed for acceptance of this Revision Petition and setting aside of order, dated 27-9-1982 of ADC (C) Sargodha. 4. Argument of counsel for respondent is that land attached to and under wells is sole ownership of respondents, is not part of Shamlat Deh and therefore no area could have been taken out of it for distribution of Shamlat at the time of consolidation. The counsel therefore prayed for dismissal of present Revision Petition and upholding of order of ADC (C), dated 27-9-1982. 5. The basic issue in this case pertains to distribution of Shamlat land attached to and under 9 wells among shareholders on the basis of proprietary interest of each as stipulated in aforementioned Wajib-ul-Arz. Respondents contend that this land (3019 kanals 12 marlas) was their sole ownership and not Shamlat Deh as per Settlement of 1880. 6. The basis of respondent"s contention is that the fact of sole ownership of this land by respondents is recorded in Jamanbandis upto 1974-75. The first noteworthy point is that the status of Wajib-ul-Arz prepared under section 39 of Land Revenue Act, 1967 is that of customary law and it provides a legal basis for determination of Shamlat Deh and it is not necessary that it should be incorporated in each successive Jamanbandi. Rights of landowners pertaining to distribution of Shamlat Deh are determined on the basis of Wajib-ul-Arz which takes precedence over entries in successive Jamanbandis including Jamandbandi immediately preceding the consolidation. It is therefore erroneously held vide order, dated 27-9-1982 of ADC (C) Sargodha that Jamanbandi immediately preceding consolidation is vital for consolidation. As per Wajib-ul-Arz 1880 and next two settlements in 1903-04 and 1924-25 land attached to and under the wells is part of Shamlat Deh and was granted to respondents on the condition that at the time of distribution of village Shamlat any area in this land owned by respondents in excess of their rights shall be deducted from their share out of this land and distributed among shareholders of remaining village Shamlat land. Apart from respondents no other shareholder had a right to ask for distribution of land attached to under the wells. Petitioners would give up their share of the Shamlat Deh in lieu of this land retained by them. Petitioners had in fact occupied land in addition to what they possessed at the time of 1880 settlement and in excess of their share in village Shamlat land and this addition being not protected from partition was lawfully taken way and distributed as Shamlat Deh as per Wajib-ul-Arz. 7. Rights of predecessor-in-interest of respondents were protected in this land vide order of Settlement Officer, dated 23-3-1979 with the consent of other shareholders of Shamlat Deh subject to the condition of that the remaining Shamlat land will be distributed among shareholders and if the respondents had any excess land apart from their share in the disputed property that will be taken out and. become part of remaining Shamlat land for distribution among other shareholders. Extract from Wajib-ul-Arz is reproduced as under:-- 8. It is therefore clear that conditions contained in Wajib-ul-Arz are binding on concerned parties. It is clear that distribution of Shamlat Deh land among landowners is an exercise separate and distinct from partition as envisaged under section 23 of Consolidation of Holdings Ordinance, 1960. It is further clear that this land is Shamlat Deh and Wajib-ul-Arz holds precedence over successive Jamanbandis as far as its distribution among landowners is concerned. The fact of the matter is that Consolidation Authorities did not either consult or competently rely upon conditions contained in Wajib-ul-Arz regarding treatment of this land as part of Shamlat Deh and conditional ownership conferred on the respondents. In view of the substantive law status of Wajib-ul-Arz it appears that an error in law has been committed by Consolidation Authorities in this regard. It is also clear that entries by the Revenue Officer in the Revenue Record not supported by any document cannot create any right, title or interests in the land. The land in question was part of Shamlat Deh and no entries in Revenue record made subsequently could change the initial character of the land which was Shamlat Deh. There is no record or legal basis to substantiate the fact that land in question which was initially Shamlat Deh lost that character with the passage of time. The factual position is that Wajib-ul-Arz being a document based on substantive law determined the status of this land as Shamlat Deh and so-called longstanding entries in the Revenue record cannot either deny the validity of Wajib-ul-Arz or change the character/status of this land as Shamlat Deh. 9. Aforementioned examination clearly reveals that confusion in this case has resulted from overlooking the status of Wajib-ul-Arz and placing of undue reliance on the last Jamanbandi preceding the consolidation. ADC (C) Sargodha vide order, dated 27-9-1982 directed that Jamanbandi immediately preceding the consolidation was the most vital document. This view seems to be erroneous as Wajib-ul-Arz holds precedence over Jamanbandi. Jamanbandi is merely a record of rights which gives effect to conditions contained in Wajib-ul-Arz. Wajib-ul-Arz is a primary document and the Jamanbandi holds only a secondary position in relation to Wajib-ul-Arz. As per conditions of Wajib-ul-Arz the land attach to and under the wells was part of Shamlat Deh and it was protected against partition only to the extent of respondent"s share in total Shamlat Deh. Any area in excess of their shares in this land could be lawfully taken out and distributed among shareholders along with remaining Shamlat land. The partition done by the Consolidation Officer therefore as per Wajib-ul-Arz of 1924-25 by distributing this land among) all the shareholders was correct. 10. On the basis of aforementioned facts/analysis it is clear that land attached to and under wells was part of Shamlat Deh, it was conditionally granted to respondents and any area in excess of rights of respondents in this land has lawfully been taken out of it for distribution along with the remaining Shamlat Deh among other landowners. On these grounds order of ADC (C) Sargodha, dated 27-9-1982 is not lawful and while setting it aside the Revision Petition of the petitioners is accepted. H.B.T./19/Rev. Petition accepted.

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