P L D 2015 Lahore 220

Before Amin-ud-Din Khan, J

PROVINCE OF PUNJAB and others---Petitioners

Versus

ZAFAR ULLAH and others---Respondents

Civil Revision No.2514 of 2005, decided on 28th February, 2014.

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 45---Mutation---Changes in revenue record---Principle---Long standing entries

in revenue record cannot be changed except in accordance with law.

(b) Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---New right, creating of---Scope---Plaintiff in such suit

is required to prove a case pleaded by him and he can get a decree with regard to a
pre-existing right in his favour by proving his pleadings---Entitlement of plaintiff for
decree, through declaratory decree for a new right cannot be created.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 45---Specific Relief Act (I of 1877), S.42---Suit for declaration---New right,

creating of---Entries in revenue record---Revenue record showed that suit property
was in the name of Canal Department and plaintiffs claimed to be allottees of the
same---Trial Court and Lower Appellate Court decreed the suit in favour of
plaintiffs---Validity---When entries of allotment and possession were available in
favour of Canal Department with regard to suit property from year, 1922 onwards and
no valid entry substituting such entry had been produced or proved by plaintiffs,
orders passed by revenue officials in favour of plaintiffs were against the record and
were nullity in the eye of law---Board of Revenue had rightly set aside entries in
favour of plaintiffs and Trial court had no evidence to set aside order passed by Board
of Revenue---Findings recorded by both the courts below were against the record as
the same had set aside order passed by Board of Revenue, which was based upon
evidence and record---High Court in exercise of revisional jurisdiction, set aside
judgments and decrees passed by two courts below and suit filed by plaintiffs was
dismissed---Revision was allowed in circumstances.
 Naseer Ahmad v. Member, Board of Revenue and others 1985 MLD 1277 ref.

(d) Limitation Act (IX of 1908)---

----S. 12(2)---Computing period of limitation---Certified copies, preparation of---

Principle---If certified copy is prepared after proposed date given to applicant,
Copying Agency under S.12(2) of Limitation Act, 1908, is bound by law to issue
notice to the party for collection of certified copy.

Muhammad Arif Raja, Addl. A.-G. with Hafiz Zahoor Ahmad Dy. Collector,
Sargodha Canal Division, Sargodha for Petitioners.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 28th February, 2014.

JUDGMENT

AMIN-UD-DIN KHAN, J.---Through this civil revision petitioners/Province of

Punjab etc. have challenged the judgment and decree dated 21-7-2005 passed by
learned Additional District Judge, Sargodha whereby appeal filed by the petitioners
was dismissed and the Judgment and decree dated 29-6-2004 whereby suit filed by the
respondents-plaintiffs was decreed.

2. According to brief facts of the case respondents-plaintiffs on 21-1-1996 filed a suit

for declaration that they be declared allottees of Ihata No. 23 Abadkari measuring 2
Kanals 4 Marlas situated in Chak No. 100 Shumali, Tehsil and District Sargodha on
the basis of orders passed by the Officer Abadkari/Collector dated 7-7-1991 and order
of Additional Commissioner (Revenue) Sargodha dated 20-9-1993. They have
challenged the order of Member Board of Revenue dated 25-8-1994 whereby both the
above said orders were set aside. Written statement was filed. Suit was contested.
Issues were framed. Parties were invited to produce their respective evidence. Both
the parties produced their oral as well as documentary evidence. After completion of
trial vide judgment and decree dated 29-6-2004 learned trial court decreed the suit.
Appeal was preferred by the petitioners, same was dismissed vide judgment and
decree dated 21-7-2005. Hence, this civil revision.

3. Learned Additional Advocate General on behalf of the petitioners argues that order
passed by the Member Board of Revenue is in accordance with law keeping in view
all the facts and rules under the Colonization of Government Lands (Punjab) Act (V
of 1912). States that learned trial court has ignored the evidence produced by the
petitioners-defendants and absolutely has not discussed the same whereas the
documentary evidence in the shape of Exh. D.1 to Exh.D.5 Jamabandies for the year
1926-1927 have been produced and originally the land was admittedly allotted to the
Canal Department for construction of Patwar Khana in the year 1922 and all the
Jamabandies which have been produced as Exh.D.1 to Exh.D.5 clearly show that the
land in dispute Ihata No. 23 which consists upon 2 Kanals 4 Marlas is recorded as
Patwar Khana in the possession of Canal Department. This un-rebutted evidence has
been ignored by the learned trial court, therefore, reached to a wrong conclusion.
Further that even the order of the Board of Revenue, which was under challenge
before the learned trial court has also not been looked into. In the order the relevant
provisions of law have been referred and on the basis of the same, the order has been
passed which is Exh.P.1 produced by the plaintiffs-respondents themselves. When it
was noted that the order dated 7-7-1991 was passed by the Colony Assistant/Collector
and further that no notice under section 24 of the Colonization of Government Lands
(Punjab) Act (V of 1912) was issued to the Canal Department, the order was nullity in
the eye of law. This being so the plaintiffs failed to rebut this fact noted by the
Member Board of Revenue in his order and further that the learned first appellate
court has wrongly held that appeal was filed after the prescribed period of limitation
and further the learned appellate court has also not discussed the evidence and just
validated the findings recorded by the learned trial court which are against the record.

4. On the other hand, learned counsel representing respondents states that with regard
to the condonation of delay there is no distinction with the ordinary person and the
Government and further that the order of Colony Assistant dated 7-7-1991 is in
accordance with law. Admits that no notice has been given under section 24 of the
Colonization of Government Lands (Punjab) Act (V of 1912) to the petitioners-
defendants department. When questioned to the learned counsel for the respondents
that whether the Colony Assistant/Collector was competent to convert the nature of
the land for construction of Patwar Khana to the residential Ihata, he relies upon
"Naseer Ahmad v. Member, Board of Revenue and others" (1985 MLD 1277). Further
refers the statement of DW-1 Imam Bakhsh the only witness appeared on behalf of the
defendants. States that the orders passed by both the courts below are in accordance
with law and further that the defendants failed to prove that they have taken the
possession in accordance with Section 10(4) of the Colonization of Government
Lands (Punjab) Act (V of 1912), therefore, prays for dismissal of the revision petition.

5. I have heard learned counsel for the parties and gone through the entire evidence
and the findings recorded by both the courts below with the able assistance of learned
counsel for the parties.
6. There are two questions involved in this litigation; first is whether the Colony
Assistant/Collector was competent to cancel the land which was allotted to the Canal
Department for construction of Patwar Khana in the year 1922 and further whether he
was competent to change the nature of land and convert it into residential Ihata and
further before cancellation the legal requirements have been complied with, the
answer of both the questions has been given in the order passed by Member Board of
Revenue dated 25-8-1994 under challenge in the suit. In para 8, he held as under:--

"As District Collector vide his order dated 19-8-1989 had clearly held that the
impugned site having stood reserved for Canal Department was not available
for allotment to the present respondents and as the said order had not been
challenged by them, CA/Collector was certainly not competent to have
subsequently allotted the same site to the respondents. CA/Collector's order
dated 7-7-1991 and Additional Commissioner's order dated 20-9-1993 are not
sustainable and are set aside. Site No. 23 measuring 2 Kanals and 4 Marlas of
Chak No. 100/NB, Tehsil and District Sargodha shall continue to stand
reserved for Canal Patwarkhana."

In this view of the matter, when the order of District Collector dated 19-8-1989 was in
the field and it was never challenged before any higher forum, the Colony
Assistant/Collector was not competent to pass the order dated 7-7-1991 and same is
the position of order of Additional Commission dated 20-9-1993. It is an admitted
position that the land reserved for a specific purpose which was validated by the
District Collector, subsequently the Colony Assistant/Collector has no authority to
change the purpose of that land and convert the land which was reserved for
construction of Patwar Khana for the Canal Department and to convert it into a
residential Ihata.

7. So far as objection of section 10(4) of the Colonization of Government Lands

(Punjab) Act (V of 1912) raised by the learned counsel for the respondents is
concerned, the Government of Punjab has never denied the allotment of the land to
the Canal Department and continuous possession which has been recorded in Exh.D.1
to Exh.D.5 the Jamabandies, which start from the year 1926-1927 of the Canal
Department as Ihata No. 23 for construction of Patwar Khana. It is well settled law
that the longstanding entries in the revenue record cannot be changed except in
accordance with law. The plaintiffs-respondents could not produce any record to show
that through any valid order the entry in the name of Canal Department was changed.
The orders passed by the Colony Assistant/Collector as well as Additional
Commissioner were against the record and also without jurisdiction, therefore, the
same were set aside by the Member Board of Revenue through the order dated 25-8-
1994. When the District Collector vide his order dated 19-8-1989 held that impugned
site stood reserved for Canal Department, the revenue record also supports the same,
in this eventuality the objection of section 10(4) of the Colonization of Government
Lands (Punjab) Act (V of 1912) raised by the respondents is not only factually
incorrect but respondents have no right to raise this objection, therefore, objection
raised by the respondents under section 10(4) of the Colonization of Government
Lands (Punjab) Act (V of 1912) is repelled.

8. In a suit for declaration the plaintiff is required to prove a case pleaded by him and
he can get a decree with regard to a pre-existing right in his favour by proving his
pleadings and his entitlement for the decree, through a declaratory decree a new right
cannot be created. When the order of the Member Board of Revenue is on the basis of
available revenue record and on the basis of existing law, same cannot be set aside
without any justifiable reason. The reasons recorded by the learned trial court while
setting aside the order impugned before it are not borne out from the record, specially
he has ignored the documentary evidence produced by the defendants-petitioners as
Exh.D.1 to Exh.D.5 and also ignored the law on the subject. When it is not denied by
anyone that the land in dispute was allotted by the Government of Punjab to the Canal
Department for construction of Patwar Khana in the year 1922 and the possession was
given by the Government to the Canal Department for construction of the same, which
is verified from the Jamabandies (Exh.D.1 to Exh.D.5) and entries of the Jamabandies
carry the presumption of correctness, though the presumption is ever rebuttable but if
the same is not rebutted, the presumption is used in favour of the person in whose
favour the entries are available. In this regard when the entries of allotment and
possession are available in favour of Canal Department with regard to the suit
property from 1922 to onward and no valid entry substituting this entry has been
produced or proved by the plaintiffs-respondents, therefore, the orders passed by the
Colony Assistant/Collector as well as Additional Commissioner were against the
record and were nullity in the eye of law, therefore, Member Board of Revenue vide
his order dated 25-8-1994 has rightly set aside the same and the learned Civil Judge
was having no evidence to set aside the order passed by the Member Board of
Revenue. In this view of the matter, findings recorded by the learned trial court are
not sustainable under the law.

9. So far as findings of the learned first appellate court are concerned, on merits he has
just affirmed the findings of the learned trial court which are not sustainable. The
finding that the appeal was filed after the prescribed period of limitation. The findings
of the learned first appellate court are also wrong as it has been noted by the learned
Additional District Judge that the judgment by the trial court was passed on 29-6-
2004, certified copy was applied on 27-7-2004, same was delivered on 9-9-2004 and
the appeal was filed on 11-9-2004. In this view of the matter, appeal seems to have
been filed within the prescribed period of limitation. Learned first appellate court has
not noted the date of preparation of the certified copies. It seems that note of the
learned Additional District Judge that the appeal has been filed after the lapse of 2½
months, is against the record. Noting by the learned Additional District Judge with
regard to the date of decision and filing of application for issuance of certified copies
and filing of appeal before the learned lower appellate court shows that appeal before
it has been filed within the prescribed period of limitation. Even otherwise, if a
certified copy is prepared after the proposed date of issue of certified copy given to an
applicant under section 12(2) of the Limitation Act, 1908, the Copying Agency is
bound under the law to issue notice to the party for collection of certified copies. It is
no one's case that the copies were prepared earlier and intentionally same were
received with a delay. In this view of the matter, when the dates as mentioned supra
noted by the learned first appellate court are considered, the appeal was within the
prescribed period of limitation.

10. In this view of the matter, the case-law referred by the learned counsel for the
respondents is not applicable to the facts of this case and the findings recorded by
both the courts below are against the record and they have set aside the order passed
by the Member Board of Revenue, which is based upon evidence and record,
therefore, this civil revision is accepted and the judgments and decrees passed by both
the courts below are set aside, suit filed by the plaintiffs-respondents stand dismissed.
No order as to costs.

MH/P-9/L Revision allowed.