' This is an appeal filed on 8-7-2002 against the order dated 11-6-2002 of the learned Executive District Officer (Revenue) Hyderabad which he passed on reference received by him from the Additional Secretary (Revenue, Board of Revenue, Sindh vide his letter No,8/62/2001/Rev.I(ii)098, dated 18-10-2001 initiating suo motu proceedings under section 164 of the Sindh Land Revenue Act, 1967, whereby he set aside order, dated 11-4-2001 of the then Assistant Commissioner, Taluka Hyderabad and cancelled, entry No,63 dated 16-11-1992 respecting S. Nos.340 and 341 of Deh Hotki, Taluka Hyderabad.
A. Previous history/background of the case
2. The chequered history/background of the case culminating in the papers available on record is that in the year 1953, under the order/challan No,173, dated 23-1-1953 of the then Assistant Collector Hala, several survey numbers of Deh Hotki, Tippa Tando Jam, Taluka and District Hyderabad owned by Sindh Agricultural Research Farm Tando Jam were amalgamated and given new survey numbers 387, 388 and 389 and such Ghat Wadh Form No,13, dated 27-5-1953 (verified on 9-6- 1953) was issued by the Revenue Surveyor "A" Northern work party No,2. The composition of new S.Nos.387, 388 and 389 is given hereunder:--
(A) Following old survey numbers (within brackets is given the area in acres) were amalgamated/merged and were given new survey number 387, admeasuring 262-02 Acres:-- 124/1 (2-38) 124/2(3-29) 124/3, 4 (8-00) 125/1 (3-21)
125/2,3 (8-00) 128/1 (2-07) 128/2 (4-34) 129/1 (205)
129/2 (2-26) 129-2-A (0-2) 132 (1-34) 158/1 (1-38)
158/2 (4-00) 158/3 (4-1) 159/1 (3-00) 159/2 (3-22)
159/3 (3-32) 159/4 (4-00) 160/1 to 4 (16-00) 161/1-4 (4-00)
161/2 (3-25) 161/3 (3-17) 161/4 (4-00) 162/1 (3-35)
162/2 (3-24) 162/3 (3-30) 162/4 (4-1) 163/1 (1-30)
163/2 (2-5) 163/1 (1-28) 163/4 (2-33) 164/1 (3-4)
164/2 (4-03) 181/1 (0-27) 182/1 (4-04) 183/1 (4-16)
183/2 (3-18) 184/1,2 (8-00) 184/3 (3-23) 185/1, 2 (8-00)
185/3 (3-7) 185/4 (4-4) 186/2 93-36) 187/1 (1-38)
186/3 (4-00) 186/4 (3-35) 186/1 (2-19) 187/2 (4-5)
200/1 (4-01) 201/1 (3-32) 201/2 (2-35) 202/1 (2-31)
335 (4-09) 336 (8-30) 337 (2-28) 338 (5-5)
339 (0-05) 340 (6-27) 341 (2-14) 342 (4-35)
346 (5-32) 347 (2-18) 348 (6-37
(b) Following old survey numbers were amalgamated/merged and were given new survey number 388, admeasuring 743-04 acres:-- 163/5 (1-05) 164/4 (108) 165/3 (4-19) 178/1 (2-25)
179/1 (4-00) 179/2 (3-6) 179/3, 4 (8-00) 180/1 (3-25)
180/2 (3-33) 180/3, 4(8-00) 181/2 (2-15) 181/3 (3-10)
181/4 (3-31) 181/5 (2-16) 182/2 (2-00) 182/3 (4-00)
182/4 (4-1) 183/3 (3-27) 183/4 (2-31) 184/4 (2-31)
200/2 (3-13) 201/3 (4-09) 201/4 (3-8) 202/2 (3-10)
202/3 (3-39) 202/4 (3-38) 203/1 (2-35) 203/2 (1-38)
203/3 (1-32) 203/4 (3-34) 203/5 (1-31) 203/6 (1-39)
204/1 (3-33) 204/2 (3-31) 204 (3-29) 204/4 (3-31)
205/1 (3-27) 205/2 (3-34) 205/3 (3-33) 205/4 (3-21)
206/1 (3-29) 206/2 (3-29) 206/3 (4-00) 206/4 (3-39)
207/1 (3-35) 207/2 (3-35) 207/3, 4 (8-00) 208/1 (3-35)
208/2 (1-35) 208/2-A (1-31) 208/3 (3-24) 208/4 (2-00)
208/4-A (1-31) 209/1 (3-16) 209/2 (3-12) 209/3 (4-00)
209/4 (3-30) 226/1 to 4 (16-00) 227/1 (3-19) 227/2 (3-36)
227/3 (4-00)
227/4 (3-35) 228/1 (4-00) 22812 (2-00) 228/2-A (1-21)
228/3 (3-37) 228/4 (1-31) 228/4-A (1-28) 229/1, 2 (8-00)
229/3 (3-30) 229/4 (3-30) 230/1 (3-39) 230/2 (4-00)
230/3 (3-39) 230/4 (4-00) 231/1 (4-00) 231/2 (1-35)
231/2-A (1-27) 231/3 (3-39) 231/4 (1-29) 231/4-A (1-35)
232/1 to 4(16-00) 233/1 (3-37) 233/2-3 (3-36) 233/3, 4 (8-00)
234/1 (3-35) 234/2, 3 (8-00) 234/4 (3-35) 235/1 (2-30)
235/2, 3 (8-00) 235/4 (4-1) 236/1 (1-6) 236/2(0-36)
236/3 (0-36) 236/4 (3-36) 236/5 (1-35) 237/1 (1-1)
237/2 (3-00) 237/3 (3-24) 381 (2-28) 238/2 (2-18)
238/3 (1-24) 243/1 (2-15) 243/2 (3-36) 238/4 (209)
243/3 (2-2) 244/1 (1-10) 244/2 (2-9) 244/3 (2-00)
244/4 (3-28) 244/5 (1-28) 244/6 (1-39) 245/1 (4-00)
245/2 (3-39) 245/3 (3-27) 245/4 (1-30) 246/1 (3-39)
246/2 to(12-00) 12 247/1 (3-35) 247/2, 3 (8-00) 247/4 (3-35)
248/1, 2 (8-00) 248/3 (3-39) 248/4(3-38) 249/1 (4-00)
249/2 (3-36) 249/3 (3-27) 249/4 (3-38) 250/1 (3-35)
250/2 (3-37) 250/3 (3-29) 250/4 (3-12) 251/1 (3-21)
251/2 (3-30) 251/3 (4-00) 251/4 (3-35) 252/1 (3-37)
252/2 (3-37) 252/3, 4 (8-00) 253/1 (3-37) 253/2 (3-37)
253/2 (3-37) 253/3 (3-34) 253/4 (4-00) 254/1, 2 (8-00)
254/3 (2-34) 254/4 (2-36) 255/1, 2 (8-00) 255/3 (2-5)
255/4 (2-22) 277 (1-13) 278/1 (4-00) 278/2 (4-04)
279/1 (3-35) 279/3 (2-1) 279/4 (3-5) 280/1 (3-13)
280/2 (3-32) 280/3 (3-16) 280/4 (3-39) 281/1 (1-38)
281/2 (1-36) 281/3 (3-38) 281/4 (2-00) 281/5 (2-00)
281/6 (3-36) 282/1 (3-37) 282/2 (3-32) 282/3 (3-36)
282/4 (3-20) 282/5 (0-20) 283/1 (3-00) 283/2 (3-2)
283/3 (3-38) 284/1 (3-36) 284/2 (4-02) 284/3 (4-14)
285/1 (4-00) 285/2 (1-38) 285/3 (3-17) 286 (3-17)
287 (1-13) 288 (0-13) 289 (0-22) 290 (5-15)
291 (1-33) 292 (1-19) 293/1 (4-17) 293/2 (1-29)
293/2-A (0-11) 293/3 (1-30) 293/4 (4-2) 293/5 (1-17)
293/6 (1-35) 294/1 (3-34) 294/2 (3-34) 294/3 (1-5)
294/4 (2-39) 295/1 (4-8) 295/2 (0-27) 382 (1-12)
279/2 (4-0) 278/3 (1-14)
(c) Survey numbers 239/3 (1-03), 239/4 (3-37), 239(2-5) and 242(1-07) were amalgamated/merged and were given new survey number 389.
3. The provision of amalgamation existed in Rule 11 of the Land Revenue Rules, 1921, which contemplated that any survey number of sub-division of a survey number may be amalgamated with any other terminus survey number with the sanction of the Collector and upon the application of the holder, whenever all the parcels of land proposed for amalgamation are held by the same holder upon the same tenure. Sub-rule (3) of the said Rule 11 further provided that when such amalgamation is effected, the two or more portions of land shall become one entry. In the land records, bearing the same distinguishing number as the first in series of the amalgamated number. It further laid down that any boundary marks placed between the amalgamated holdings shall be removed and the village map be corrected accordingly.
4. The order of the then Collector respecting amalgamation of above survey numbers and the order/challan No,173, dated 23-1-1953 of the then Assistant Collector Hala, at present, are not traceable. Similarly, the Sindh Agriculture Research Farm Authorities (Sindh. Agriculture University Tando Jam) are unable to produce the documents whereby they have acquired the ownership of the land (whether by acquisition, transfer from the Government or purchased through private negotiations etc.) mentioned in Ghat Wadh Form No,13, dated 20-7-1953 and Entry No,2, dated 6-6- 1956 of V.F. VII (old) excepting the Notification No,4344-F/59, dated 17-9-1952 of the Revenue Department published in Sindh Government Gazette (Extraordinary) Part I, dated 25-9-1952 at pages Nos.612, 613 and copy of award passed under section 11 of the Land Acquisition Act by the then Deputy Collector and Land Acquisition Officer Hala vide letter dated 10-11-1953, according to which old S. Nos.129/1, 132, 158/1, 158/2, 158/3, 159/1, 159/2, 159/3, 159/4, 160, 161/1,161/4, 182/1, 183/1, 183/2, 184/1, 184/2, 183/3, 184/4, 185/1, 185/2, 185/3, 185/4, 186/2, 186/3, 187/1, 187/2, 200/1, 200/2, 201/1, 201/2, 201/3, 201/4, 202/1, 202/2, 202/3, 202/4, 203/1,203/2, 203/3, 203/4, 203/5, 204/1, 204/2, 204/3,.204/4, 205/1, 205/2,-205/3, 205/4, 206/1, 206/2, 206/3, 206/4, 207/1, 207/2, 207/3, 207/4, 208/1, 208/4, 208/4-A, 227/1, 230/1, 231/1, 231/2, 231/2-A, 231/3, 231/4, 231/4-A, 232, 233/2, 233/3, 248/2, 249/1, 249/2, 250/1, 250/2, are acquired by them through land acquisition proceedings. For the rest of the land/survey numbers, their version is that presently, the concerned file is not traceable and they are putting their all possible efforts to trace out the file/papers or obtain copies of the relevant documents from other offices/departments. In such a case, it is provided in Article 129, illustration
(e) of Qanun-e-Shahadat Order, 1984 that a Court may presume that judicial and official acts have been regularly performed. Moreover, it is laid down in section 52 of the Sindh Land Revenue Act, 1967 (in the Sindh Land Revenue Code, 1879, it was -section 135-J) that an entry in the record- of-rights shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefore. Burden of proof, therefore, does not lie upon the university.
5. After the amalgamation/merger of aforesaid various survey numbers into three new survey numbers 387, 388 and 389, the Deh map as well as survey map were corrected and the boundary marks placed between the amalgamated holdings viz. Old S. Nos. Were removed/erased from these maps and new S. Nos. Were inserted therein. Though the survey numbers with area have been written very carefully and cautiously even then if any mistake or error from accidental slip or omission of survey numbers or area etc. Is discovered at any stage, it is subject to correction at any time under section 166 of the Sindh Land Revenue Act, 1967.
6. Ghat Wadh Form is a part of village Form No,1 (Register of land) 'mentioned in manual of village Revenue Accounts for Sindh and it is prescribed vide clause (xx) of Rule 72 of the Sindh Land Revenue Rules, 1968 as amended by the Board of Revenue, Sindh vide its Notification No,1-46-78- Rev.I(ii)/1687, dated 29-9-1981' published in the Sindh Government Gazette, Part IV-A, at pages 4 to
81. This form is prescribed under section 39(2)(iii)(d) of the Sindh Land Revenue Act, 1967 as amended vide section 2 of the Sindh Land Revenue (Amendment) Ordinance, 1980 read with section 55 of the said Act of 1967. Having been prescribed by the Board of Revenue under section 39(2)(iii)(d) read with section 55 of the said Act of 1967, the Ghat Wadh Form is the part of record of rights. As laid down in paragraph 2 of the remarks of Village Form No,1 and the instructions for filing Ghat Wadh Form contained in the Manual of Village Revenue Accounts of Sindh, a Ghat Wadh Form is to be prepared when there is any alteration or appropriation of area and the land is measured.
Since it is a part of record of rights it can safely be relied upon so far its contents are concerned. As mentioned in Column No,8 of the Ghat Wadh From No,13, the Ghat Wadh Form had been prepared of the land under the Agricultural Research Farm and entered as per the order/challan No,173, dated 23-10-1953 of the Assistant Commissioner, Hala. It was explained by the representative of the Land Record Officer that though the original order/challan No,173, dated 23-10-1953 is presently not traceable but it is quite obvious from its contents, that the Ghat Wadh Form No,13 was prepared because the old numbers pertaining to Agriculture Research Farm were amalgamated and new survey numbers were formed.
7. Based on the above Ghat Wadh Form Entry No,2, dated 6-6-1956 was effected in V.F.VII of Deh Hotki wherein all those new survey numbers 387, 388 and 389 with the details of old survey numbers (total area 1016-0 acres) merged therein were entered in the name of Agricultural Research Farm Tandojam.
8. Subsequent to the above Ghat Wadh Form, it is available on the record that following Ghat Wadh Forms had also been issued till date:--
(i) S. No,346 (5-32) entered in Ghat Wadh Form No,13 was resurveyed and divided into Survey Nos.346/1, 346/2 and 346/3 formed with actual area of 3-10 acres. Such area under the order No,4164 dated 22-7-1957 of the then Deputy Collector Hala, was entered in the Ghat Wadh Form vide Entries Nos.15 and 16, dated 19-8-1957 in the name of Sindh Agriculture Farms Tandojam.
(ii) Under the orders of the then Commissioner, Hyderabad vide No,4344-F/50, dated 8-6-1961 Survey Nos.209/1 (3-16 acres), 209/2 (3-12 acres), 209/4 (3-30 acres), 226/1 to 4 (16-00 acres), 255/1, 2 (8-00 acres), 255/3 (2-05 acres) and 255/4 (2-22 acres) were revived and after deducting an area of 0-36 of Kharabo were re-entered in Ghat Wadh Form vide Entry No,18, dated 25-9-1961 in the same name of Sindh Agriculture Research Farm Tandojam.
(iii) Vide Entry No,19, dated 18-11-1962, of Ghat Wadh Form under the orders bearing No,G/8922 dated 13-11-1962 of the Director Settlement Survey and Land Record Hyderabad, Survey Nos.347 (2- 16 acres) and 348 (6-37 acres) of Deh, Hotki owned by Sindh Agriculture Farm Tandojam were taken out from Ghat Wadh Form No,13 and were revived in their original shape/numbers. Vide Entry No,19, dated 16-11-1962 of Ghat Wadh Form in the name of Sindh Agriculture Research Farm Tandojam.
(iv) Vide Entry No,20, dated 16-11-1962 of Ghat Wadh Form, an area of 1-31 acres out of Survey No,347 leaving behind an area of 0-27 Ghuntas was entered in the name of. WAPDA Colony.
Similarly an area of 3-2 acres out of Survey No,348 leaving behind an area of 3-35 acres was entered in the name of Power Station. The remaining area of 3-35 acres was shown as Sikni in remarks column under order/Challan No,161, dated 14-7-1962 of the then Assistant Commissioner, Hala and Order ,No,S-II, 16, 17, dated 21-8-1962, No,R/486, dated 24-10-1962, and No,8982, dated 13- 11-1962 of the Director Settlement Survey and Land Record, Hyderabad.
9. Over a period of one decade, the entire area of Sindh Agriculture Farm Tandojam remained intact. Thereafter, in between the years 1966 to 1981, an area of about 52-20 acres out of the total area owned by the Sindh Agriculture Research Form Tandojam vide Entry No,2, dated 6-6-1956 (old VF-VII) was entered (with old survey numbers) in the names of various private persons vide different entries effected in the Record of Rights, as detailed below:-- Sr. No. Survey Number (Area in acres)Remarks
1. 342 (4-35)
346/1, 2, 3(3-10)
Total 8-05Vide Entry No.57, dated 10- 7-1966 of V.F.VII, the land being treated as an evacuee, had been transferred in the name of claimant Mst. Nasreen Sarwar Shah on the basis of Mutation Order No.ARM/717 dated 26-6- 1965 issued by the then Assistant Rehabilitation Mukhtiarkar, Hyderabad. * Vide Entry No.91, dated 21- 8-1982, Book No.12499 of V.F.XV, the claimant had gifted the land to her son, daughters and mothers.
2. 128/2 (4-34) 125/3 (4-0)
Total 8-34 acres* Vide Entries Nos.63, 64 and 65, dated 12-10-1966 of V.F.VII-B, the land had been mutated in the name of claimant Sher Jan, Son of Mardan * Vide Entry No.44, dated 26-9-1984 Book No.17820 of V.F.XV, fotikhatabadal had been made in the names of the legal heirs namely Abdul Latif, Muhammad Bashir, Abdul Rasheed and Mst. Amna Begum.
3. 124/1 (2-38)
125/1 (3-21)
Total 6-19* Vide Entry No.3, dated 17- 5-1969 of V.F.XV, land has been mutated in the name of claimant Muhammad Hussain, on the basis of Mutation Order No.1088, dated 14-5-1961 issued by the then A.R.M., Hyderabad. * Vide Entry No.4, dated 17- 5-1969, Book No.17840 of V.F.XV the land had been sold out to Chaudhary Muhammad Ashraf through registered sale- deed.
4. 124/4 (4-00)
125/2 (4-00)
164/2 (4-03)
Total 12-03* Vide Entry No. 11, dated 15- 4-1970, the land had been transferred to claimant Maqsood Rajput son of Mehmood Rajput, Vide Entry No.1b, dated (not shown in the record) Book No. 17840 of V.F.XV, the land had been sold out to Chaudhary Raza Ashraf son of Chaudhary Muhammad Ashraf and Nasir Iqbal son of Muhammad Iqbal through registered sale-- deed. * Vide Entry No.422, dated 14-3-1987 Book No.19445 of V.F.XV, Chaudhary Raza Ashraf had sold out his share to Jaffar Iqbal and Nasir Iqbal both sons of Chaudhary Muhammad Iqbal.
5. 335 (4-09) * Vide Entry No.37, dated 16-12-1980 of V. F.XV, Book No.12454, the land shown as non-evacuee property of Ram Sahib Roop Chand son of Meemo Mal had been transferred to Vishandas Mangharam and Seth angharam son of Bhojumal on the basis of registered sale-deed. * Vide Entry No.317, dated 7-11-1983, of V.F. XV, Book No.12325, after demise of Seth Mangaram his fifty paisas share had been inherited by his son Vishandas. * Vide Entry No.524, dated 29-5-1988 of V.F.XV Book No.12592, on the demise of Vishandas, his full rupee share had been inherited by his two sons namely Nandlal and Daulatram and two widows Kishan Bai and Chatri Bai. * Vide Entry No.141, dated 24-7-2000 the land had been converted into Sikni and the owners have introduced Housing Scheme in the name of Sakhi Wahab Town after having lay-out plan approved from the then Administrator, Municipal Committee Tando Jam (defunct) andthe Additional deputy Commissioner-I, Hyderabad.
6. 124/2 (3-29)
124/3 (4-00)
Total 7-29 acres* Vide EntryNo.277, dated 2-3-1981 of V.F.XV, Book No.12454, the land had been transferred in the name of claimant Abdul Majeed on the basis of clearance certificate (mutation order) issued by the ARM/ASC(L), Hyderabad vide his letter No.AM/1302, dated 28-7- 1973 and letter No.DC/Reh./1104, dated 17- 9-1973 of ASC(L), Hyderabad and No.DC/Reh./937, dated 24- 12-1979 of ADC-I, Hyderabad. *Vide Entry No.283, dated 16-3-1981 of V.F.XV, Book No.12454, the land had been sold out by the claimant to Rais Khan Muhammad Khan Jamali through registered sale- deed. This entry has been maintained by my predecessor (Mr. Imdadullah Uner) vide his judicial order dated 6-2- 1996 passed on the application for review filed by Khan Muhammad Jamali v. Sindh Agriculture University, Tandojam.
7. 340 (4-36)
341 (2-14)
Total 6-50* Vide Entry No.25, dated 8- 6-1981 of V.F.XV, Book No.12499 the 6-27 acres by land treating as an evacuee had been transferred in the name of Messrs Modern Textile Mills, Tandojam on the basis of order No.783/R/3, dated 3- 3-1965 issued by the Chief Settlement Commissioner (Industries), Hyderabad. * Vide Entry No.26, dated 8- 6-1981 of V.F.XV, Book No.12499, the land had been sold out to Messrs Starco, Ltd. Tandojam through registered sale- deed. * Vide Entry No.20, Book No.12840, the remaining 23 Ghuntas area of S. No.341 had been mutated in the name of claimant Abdul Aziz Khan. * Vide Entry No.24, dated 8- 6-1981 of V.F.XV, Book No.12499 claimant had sold out 0-23 Ghuntas to Messrs Starco.
' It is contended that the Revenue Officers/officials who had kept the above entries of the old survey numbers, had not bothered to open and see the previous Entry No,2, dated 6-6-1956 of V.F.VII (old) according to which all these survey numbers were amalgamated/merged in a new S.No,387-388 and there was no existence of the above survey number of Deh Hotki, either in the Revenue/Survey Record or in the Revenue/survey maps and therefore, ' transfer of above S.Nos. In the names of private persons was questionable. It is further argued that allotment/auction of S.Nos.340 and 341 by the Settlement Authorities was also not proper because at the time of said auction, there was no existence of such numbers. Had the Revenue Officers/officials checked the previous entry with due care and diligence, such a havoc would have not been played with the land pertaining to Educational Institution/Sindh Agriculture University, Tandojam.
11. For the first time in the year, 1981, the Director, Finance, Sindh Agriculture University, Tandojam, vide his letter No,DF/Land/890 dated 10-8-1981 approached the then Additional Deputy Commissioner-I, Hyderabad for the restoration of land comprising S.Nos.124/4, 125/2 and 164/2 (Entry No,11, dated 15-4-1970) in the name of University. The Sindh Agriculture University authorities, however, did not challenge the rest of the Entry No,57 dated 10-7-1966, Nos.63, 64 and 65, dated 12- 10-1966, No,3, dated 17-9-1969, No,4, dated 17-5-1969, No,37, dated 16-12-1980, No,277 dated 2-3- 1981, No,283 dated 16-3-1981, No,25, dated 8-6-1981 and No,24 dated 8-6-1981, etc. Whereby atleast an area of 52 - 28 acres belonging to Sindh Agriculture Farm was transferred to various private persons as mentioned in para. 9 above. Anyway, the learned ADC-I, Hyderabad vide his order, dated 22-8-1982 rejected the request. The Director Finance Sindh Agriculture University Tandojam preferred an Appeal No,S-13-2-519-Reader/82 against Chaudhary Muhammad Ashraf Khan, Maqsood Ahmed Rajput and Muhammad Hussain as respondents Nos.1, 2 and 3 respectively before the then Additional Commissioner-II, Hyderabad which was also rejected by the erstwhile Additional Commissioner-II, Hyderabad vide his order, dated 16-12-1991. Being aggrieved, Director, Finance, Sindh Agriculture University Tandojam filed in this Court, an application for Revision (No,SROR-86 of 1991) against the following respondents:--
(1) Ch. Muhammad Ashraf Khan (deceased) through his legal heirs namely, Mst. Noor Begum, Muhammad Zaka Ashraf, Muhammad Raza Ashraf, Nusrat Naz, Ishrat Naz, Tilat Naz, Shehla Ashraf and Naila Ashraf.
(2) Maqsood Ahmed Rajput. (3) Muhammad Hussain.
12. The case was heard by Mr. Abdul Hakeem Khoso, the then Member (Judicial) Board of Revenue, Sindh. The learned counsel for the applicant mainly contended before him as under:--- "S. Nos.124 to 4 and others were acquired in the year 1953 in favour of Agriculture College Tandojam after observing full legal formalities. The Record of Rights was also mutated in favour of Agriculture College. These S. Nos. Were renumbered as 386, 387 and 388 in the year 1953., in the year 1970, Mukhtiarkar Taluka Hyderabad mutated the above land in favour of one Maqsood Ahmad on the basis of a letter bearing No,1683, dated 9-3-1970 allegedly written by the then Principal of Agriculture College that the said Survey numbers were not in possession of the College. The alleged letter was fictitious and forged document, which was managed by one Choudhry Muhammad Ashraf to take this land in favour of his labour. The S. Nos. In-question alleged to have been allotted in favour of respondents in the year 1970 when these did not exist as these numbers and others had lost its identity long back in the year 1953 due to the survey of lands by the Director, Settlement Survey and Land Record Sindh and new numbers were assigned. Therefore, apparently S. Nos.124 and others were neither existed nor available for allotment and as such the allotment of such land was ab initio void coupled with the facts that the land belonged to the Agriculture University Tandojam and was not available for allotment. The land under dispute is still in possession of the Agriculture College (now Agriculture University).
13. The learned counsel for the respondents mainly contended that the appeal of the applicant before the Additional Commissioner-II, Hyderabad was time-barred by 11 years, hence it was rightly rejected. The learned counsel opposed the application on the ground that the present matter was of civil nature and the Revenue Courts had no jurisdiction to decide the case in-question as several complicated questions of law and facts were involved. After hearing the arguments of both the sides the learned Member (Judicial) decided the case vide order, dated 26-9-1962 and allowed the revision. The concluding paras. (Nos. 5 and 6) operative part of the order, are reproduced as under:- "(5) I have considered the arguments put forth by both the counsel and also seen the record. This is an admitted position of the record that the land in-question existed in favour of the petitioner University and from their names it was transferred in favour of the respondents. Nos.2 and 3 allegedly on the basis of letter Nos.1683, dated 19-3-1970 from the then Principal of the Agriculture College wherein it is said that he had written that the land is not in possession of the College. The counsel for petitioner claimed that letter is fictitious, forged and fabricated but for the sake .Of arguments if it is presumed to have been written as it is, even then the basic question is whether it was within the competency and jurisdiction of Taluka Mukhtiarkar to mutate or change the Khata on the basis of simple letter without notice stating therein that the land in-question is not in possession of the College. The property in-question belongs to the College now University and not to the Principal. This is crystal clear even from the Entry which had been made in favour of respondents Nos.2 and 3 that ownership of this land was with the College and as such the property could not be changed on the letter of the Principal, even though he would have given consent for mutation as the property does not belong to him. There is no such law that a particular property belonging to someone and is not in one's physical possession, could be transferred in favour of other person. This goes to prove that the basic entry whereby the respondents Nos.2 and 3 had derived right in the land on the strength of said letter of the Principal, is illegal and void ab initio, as discussed above. It is needless' to emphasis that it is well-settled law that question of limitation does not arise against void orders. Reliance is placed on a case reported in PLD 1986 Quetta 421. It is established from the foregoing position that the order of Mukhtiarkar allowing mutation from the name of the University petitioner to respondents Nos.2 and 3 on the basis of simple letter of the Principal relating to the question of possession, is without jurisdiction, illegal and void ab initio. The Mukhtiarkar had exceeded to his jurisdiction. The affected party is not precluded from challenging the legality at a belated stage PLD 1976 SC 37. The basic order thus, having been found void, the subsequent orders are equally void. Reliance is placed on 1985 CLC 201 (Lahore).
(6) For the reasons discussed above I cancel the entries in favour of respondents Nos.2 and 3 and all other entries based on such entries and restore the original entry in favour of University of Tandojam, accordingly the revision is allowed."
14. Pursuant to the judicial order dated 26-9-1992 of the Member (Judicial), Board of Revenue, Tapedar/Supervising Tapedar prepared Entry No,63 dated 16-11-1992 V.F.VII, Deh Hotki and submitted a note in vernacular language (Sindhi) which is translated in English as under:- "Note.--- It is mentioned in office letter No,X, dated 12-11-1992 that as per order, dated 26-9-1992 of Member (Judicial), Board of Revenue, previous entries in respect of Blocks Nos.124/1 to 4,125/1, 2, 3 and 164/4 others may be cancelled and said entries may be restored in the Khata of Agriculture University Tandoj am.
' In view of aforesaid letter/order of the Mukhtiarkar and in view of the decision of the Member (Judicial) Board of Revenue, Sindh, the previous entries are cancelled and new Entry No,63 is revived which is kept for orders.
15. On the above note, the Assistant Mukhtiarkar passed his order dated 16-11-1992 in vernacular language (Sindhi) below Column No,7 of the said V.F.VII which is translated in English as under:-- "As per order, dated 26-9-1992 of learned Member (Judicial) Board of Revenue, Sindh and letter No,DF/565/66, dated 11-11-1992 and as per order, dated 16-11-1992 of the Mukhtiarkar Taluka Hyderabad, the old entries are revived in the name of Agriculture Research Farm. A copy of aforesaid letter be kept on record."
16. From the cumulative study of above entries and orders it is crystal that order, dated 16-11-1992 of the then Assistant Mukhtiarkar, Taluka Hyderabad was passed in respect of revival of S. Nos.124/1 to 4, 125/1, 2, 3 and 164/4 of Deh Hotki which were previously transferred in the name of Maqsood Rajput vide Entry No,11 dated 15-4-1970. This order was nothing but a mere compliance of the orders of this Court which as mentioned in section 5(2) of the Sindh Board of Revenue Act, 1957 is the highest Court of appeal and revision in revenue cases in the Province. Since it was neither the original nor revisional order, no appeal or revision was competent against that order excepting review before this Court against the original order, dated 26-9-1992 under section 8 of the Sindh Board of Revenue Act, 1957.
17. Against order, dated 26-9-1992 (ibid), two applications for Review under section 8 of the Sindh Board of Revenue Act, 1957 were filed. The first application for Review bearing No,S.REVIEW-21 of 1992 was filed by Chaudhary Muhammad Ashraf Khan (deceased) through his eight legal heirs. The second application for Review bearing No,S.REVIEW-60 of 1995 was filed by Raees Khan Muhammad Jamali.
18. The review application filed by Raees Khan Muhammad (No,S-REVIEW-60 of 1995) in respect of S.Nos.124/1 to 4, 125/1, 2, 3, 164/4 and others was decided by Mr. Imdadullah Uner, the then Member (Judicial) Board of Revenue vide his order, dated 6-2-1996. He obtained the factual position of the disputed land which the then Taluka Mukhtiarkar, Hyderabad reported to him as under:--
(i) The S. Nos.124/4, 125/2 and 164/4 of Deh Hotki are entered in the name of Agricultural Research Farm Tandojam vide Entry No,63 of V.F.VII-B, S. No,125/3 of the same Deh was granted to Sher Jan son of Mardan in claim vide Entry No,64 dated 12-10-1966 of V.F.VII-B.
(ii) S. Nos.124/1 and 125/1 had been granted to Muhammad Hussain in claim vide Entry No,3 of D.K.
Book No,17840 who had sold out the same to one Chaudhary Muhammad Ashraf and such entry was kept in the Record of Rights.
(iii) S. Nos.124/4, 125/2 and 164/2 had been granted to Maqsood son of Mehmood Rajput in claim vide Entry No,11 of Book No,17840, who had sold out the same to Chaudhary Ashraf and Nasir Iqbal vide Entry No,16 of D.K. Book No,17840.
(iv) After the death of Sher Jan S. No,125/3 was transferred his four legal heirs namely Abdul Latif son of Sher Jan, Muhammad Bashir son of Sher Jan, Abdul Rasheed son of Sher Jan and Mst.
Amanat daughter of Sher Jan, vide Foti Khata Badal Entry No,44 of D.K. Book No,17840.
(v) S. No,124/2, 3 is entered in the name of Abdul Majeed son of Hussainuddin vide Entry No,277 of D.K. Book No,12454, who had sold out the same to Raees Khan Muhammad son of Haji Ghulam Muhammad Khan vide Entry No,283 of D.K. Book No,12454. He produced copy of registered sale- deed bearing Sr. No,1091, dated 8-3-1981 which is entered in Register of Sub-Registrar Office, Hyderabad at Serial No,959 on pages 138 to 142 Book No,Addl.I Volume No,1123, dated 8-3-1981.
19. Mr. P.M. Amer, learned counsel for the applicant Raees Khan Muhammad put forth his case which is mentioned in para. 4 of the order, as under:-- "Elaborating case of petitioner Raees Khan Muhammad, Mr. P.M. Amer stated that he had nothing to explain about other land or the S.Nos. Involved in the impugned order but only S.No,124/2 and 3 which were not all under dispute. He drew my attention to the original appeal/revision of respondent No,2 in which S.No,124/2 and 3 were not claimed by the Tandojam University of course S.No,124/1 and 4 was. The counsel clarified instead of 1 and 4 an erroneous order (impugned) for S.No,124/1 to 4 was passed without calling claimant Abdul Majeed son of Hussainuddin or subsequent owner i,e, present petitioner."
20. Mr. Imdadullah Uner, the learned Member (Judicial), Board of Revenue, Sindh, decided the Review application vide paras.5, 6 and 7 of his order, dated 6-2-1996 which are reproduced as under:- "Based on above factual position, petitioner's counsel contended there was an error apparent on the face of impugned order S.No,124/2 and 3 be excluded having not been claimed by Tandojam.
University while for remaining land he had no concern.
' Since this petition is based on the Revenue Record and the original claim of Tandojam Agriculture College (now University), the presence of respondent party was dispensed with to avoid delay.
' In view of above facts and circumstances I have arrived at the conclusion that an error has definitely been committed, in the impugned order wherein instead of S.Nos.124/1 and 4, S.No,124/1 to 4 has been recorded. Thus, the impugned order or finding in it is not being revised or changed/amended that correction to above effect is hereby ordered. The Revenue Record may be maintained accordingly. This petition stands disposed of with observation as above. However, it has no bearing on other land shown at para. 3(i) to (iv) above."
21. It is pertinent to point out that S. No,124/2 (3-2 acres) and 124/3 (4-00 acres) are mentioned in the name of Sindh Agriculture Farm Tandojam both in Ghath Wadh Form No,13 attested on 27-5- 1953 (9-6-1953) and Entry No,2 dated 6-6-1956 of V.F.VII of Deh Hotki. Therefore, the above findings were contrary to the Revenue/Survey Record.
22. The review application filed by the legal heirs of deceased Chaudhary Ashraf Khan (No,S- REVIEW-121 of 1992) in respect of S.Nos.124/1, 4, 125/1, 2, 3 and 164/4 (admeasuring 21-31 acres) was decided by Mr. Ghiasuddin Junejo, the then Member (Judicial) Board of Revenue Sindh vide his order, dated 5-11-1997. He heard the case. Mr. D.M. Luhano, the learned counsel for Chaudhry Ashraf Khan argued the case under:-- "The counsel for petitioner argued that S.No,124/1 and 4, 125/1, 2 and 164/4 admeasuring 18-22 acres are allotted to the claimants Muhammad Hussain and Maqsood Ahmed in satisfaction of their claim. The petitioner purchased these S.Nos. From above claimants through registered sale-deed dated 13-6-1966 and 31-3-1970. Such Khatas were mutated in Record of Rights (Dakhil Kharij) vide Entries Nos.3, 4 and 16 in favour of the petitioner. The respondent Director, Finance, Sindh Agricultural University, Tandojam filed an application after a period of 11 (eleven) years before the Additional Deputy Commissioner-I, Hyderabad claiming three S.Nos.124/4, 125/2 and 164/2 admeasuring 12-03 acres have been acquired for Agricultural College, Tandojam. The Additional.
Deputy Commissioner-I, Hyderabad after verification of record and hearing the parties rejected the claim of Agricultural University Tandojam vide order, dated 22-8-1982. Being aggrieved, the University Authorities filed a regular appeal before the Additional Commissioner-II, Hyderabad where the authorities added some other S. No, as stated in introductory para.1 but their appeal was rejected vide order, dated 16-2-1991. University Authority being dissatisfied filed a revision petition before the Member (Judicial), Board of Revenue, Sindh, who vide his impugned order, dated 22-9- 1992 who upheld the revision petition devoid of documentary evidence, hence review petition has been preferred.
' Defending his case, the counsel for petitioner pointed out that the version of the University that the land in-question was acquired by them for Agricultural Farm is baseless on the ground that no acquisition proceedings has ever been made as is evident from the basic order, dated 22-8-1982 passed by the Additional Deputy Commissioner-I, Hyderabad. He prayed that the impugned order based on illusion and imagination merits no consideration may be set aside and the review petition upheld accordingly."
23. The learned counsel for the respondent argued his case before Mr. Ghiasuddin Junejo as under:- "The counsel for respondent argued that the disputed land was acquired somewhere in 1953 for the purpose of Agricultural Farm of Tandojam College. He "further added that the land, in-question was not available for allotment to the claimant as such the allotment was ab initio void. He also added that the land in-question is in physical possession of the University. He prayed that the impugned order passed by the Member (Judicial) was legal and correct which may be maintained and review petition be rejected accordingly."
24. After hearing both the parties, Mr. Ghiasuddin Junejo vide his order dated 5-11-1997, upheld the application for review and ordered that the land if in the continued possession of the applicant may remain in his name in Record of Rights on the basis of the registered sale-deed. For his such findings. Mr. Ghiasuddin Junejo recorded his following reasons (para. 5 of the order, dated 5-11- 1997):-- "Heard the counsel for both the parties at length and perused the relevant record. Perusal of record shows that the disputed land was an evacuee property which was allotted to the claimants Muhammad Hussain and Maqsood Ahmed in satisfaction of their claim. The petitioner purchased the land in-question through registered sale-deed. The representative of the University Authorities and their counsel were asked to produce acquisitions proceedings i,e, Notification, award compensation or any document wherefrom acquisition proceedings are proved but they could not be able to adduce the same on 2-10-1997. And 15-10-1997 whereas they were afforded full opportunity. On the other side the validity of the registered sale-deed in 1966, cannot be disputed at this belated stage. As the Agriculture University representative has failed to produce any documentary evidence about the acquisition of the disputed land, they cannot seek legal benefit to retain the land.
' I, therefore, uphold the review petition and order that the land if in the continued possession of the petitioner may remain in his name in Record of Rights on the basis of the registered sale-deed."
25. Pursuant to above orders, Entry No,63, dated 16-11-1992 was kept in VF-VII. The order of the Member (Judicial), Board of Revenue dated 26-9-1992 with certain modifications made vide order dated 6-2-1966 and 5-11-1997 in review was final as contemplated by section 7(1) of the Sindh Board of Revenue Act, 1957 and now no further appeal, revision or review by any Revenue Officer/Revenue Court including the Board was competent/admissible against the said order of this Court which as laid down in section 6(2) of the Sindh Board of Revenue Act, 1957 was the order of the Board. Since the order passed in the matter by this Court was in exercise of revisional jurisdiction, even no revision to full Board as envisaged in proviso to section 7(2) of the Sindh Board of Revenue Act, 1957 read with rule 5 of the Board of Revenue (Conduct of Appeals and Revision)
Rules, 1959 was competent. The chapter was thus, finally closed for ever on revenue side. B. Facts relating to the present case
26. In the year 2001, Mumtazul Hauue Qureshi, Manager, Administration, Modern Textile Mills Tandojam and Starco Ltd. Tandojam filed an appeal under section 161 of the of the Sindh Land Revenue Act, 1967 on 24-1-2001 against the order, dated 16-11-1992 passed by the Assistant Mukhtiarkar Taluka, Hyderabad regarding the inclusion of S.No,340 (4-36 acres) and 341 (2-14 acres) total area 7-10 acres Of Deh Hotki in Form VII-B in the name of Agricultural Research Farm Tandojam vide Entry No,63 dated 16-11-1992. Since the order, dated 16-11-1992 attesting Entry No,63 dated 16-11-1992 was nothing but a mere compliance of the judicial order passed by this Court, no appeal against that order was competent as already explained by me in above paras. The learned Assistant Commissioner, Hyderabad (erstwhile) despite the fact that such an appeal was not competent before him, admitted the appeal which was even badly and hopelessly barred by time.
27. The S.Nos.340 and 341 of Deh Hotki already existed entered in the name of Sindh Agriculture Research Farm in Old V.F.VII at Entry No,2, dated 6-6-1956. Both these S.Nos. Were amalgamated along with other survey numbers and were merged in New S.No,387 vide Ghat Wadh Form No,13.
Both these survey numbers throughout remained intact and were never disturbed in the order, dated 22-8-1982 of the then A.D.C.-I, Hyderabad or in the order dated 16-2-1991 of the then Additional Commissioner-II, Hyderabad, or in the order, dated 26-9-1992 passed by this Court in Revision No,SROR-86 of 1991, or in the order, dated 6-2-1996 passed by this Court in S.REVIEW-60 of 1995 and lastly in the order, dated 5-11-1997 passed by this Court in S.REVIEW-121 of 1992. Therefore, the appeal filed by Mumtaz-ulHague against the order, dated 6-11-1992 in respect of S.Nos.340 and 341 was quite wrong, misconceived and not maintainable. The then Assistant Commissioner, Hyderabad was not competent to carve out these survey numbers from the S.No,387 entered in the name of Agriculture Research Farm vide Entry No,2, dated 6-6-1956 and transfer it in the name of Messrs Starco. By doing so, he assumed the jurisdiction and exercised the powers of Board of Revenue and the Director Settlemeth Survey and Land. Records.
28. Admittedly, the appeal was badly and hopelessly time-barred, and was not maintainable inasmuch as the insertion of S.Nos.340 and 341 in V.F.VII vide Entry No,2 of 6-6-1956 was on the basis of Ghat Wadh Form No,13 of 1953, as such the appeal (If any) was to be filed against those orders of 1953 and 1956 and not against the order, dated 16-12-1992 of the Assistant Mukhtiarkar Entry No,63, dated 16-11-1992. In spite of this legal position the Assistant Commissioner, Taluka Hyderabad illegally heard the appeal and decided it vide his order, dated 11-6-2002 without passing any order regarding the condonation of delay. The Assistant Commissioner Taluka Hyderabad in his order, dated 11-6-2002 mentioned the facts of the case as under:-- "The facts of the case in brief are that S.Nos.340, 341 and 374 admeasuring 9-33 acres of Deh Hotki, Taluka Hyderabad were owned by Evacuee owner, Ajjomal son of Lilaram, Cotton Factory of Tandojam and were resumed to Evacuee Pool of Central Government.
' It was therefore, auctioned by the Chief Settlement Commissioner, Sindh (Industries) to Messrs Modern Textile Mills Tandojam in exercise of powers conferred under subsection (II) of section 31 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 and confirmed on 18-12-1964 in favour of Messrs Modern Textile Mills Tandojam vide permanent transfer order dated 21-12-1972 against the highest bid of Rs,3,85,Q00..
' Such Khata was also mutated in the name of Modern Textile Mills Tandojam in Record of Rights vide Entry No,25, dated 8-6-1981 of Dakhil Kharij Register No,12499 of said Deh by the Assistant Mukhtiarkar Taluka Hyderabad. The appellant Mills also purchased remaining area of 0-23 Ghuntas out of S.No,341 of Deh Hotki, Taluka Hyderabad from Khatedar Abdul Aziz son of Abdul Majid Khan, through registered sale-deed dated 23-2-1971 and the Khata was mutated in the name of Starco Limited Tandojam vide Entry No,24 dated 8-6-1981 of D.K. Register No,12499 of Deh Hotki.
' The Modern Textile Mills Tandojam sold away Survey Nos.340, 341, and 374 of Deh Hotki admeasuring 9-33 acres -which were given to them in auction by the Settlement Authorities to S. Starco Limited Tandojam through registered sale-deed dated 29-1-1974 in consideration of Rs,1,75,000. The Khata was also mutated in the Record of Rights in the name of purchaser vide Entry No,26 dated 8-6-1981 of D.K. Register No,12499 of said Deh.
' On the other hand as per Entry No,63 of V.F.VII-A (Old) S.Nos.340/1-36,. 341/2-14 of Deh Hotki involved in this appeal together with S.Nos.124/1 to 4, 125/1 to 3 and S.No,335 and others of said Deh were shown entered in the name of Agriculture Research Farm on the basis of order, dated 26-9- 1992 of the Member (Judicial), Board of Revenue, Sindh, Hyderabad which was made on 16-11-1992 by the Assistant Mukhtiarkar Taluka Hyderabad. But since S.No,124/2, 3 were owned by Raees Khan Muhammad Jamali being purchased by him from the previous owner through registered sale- deed dated 8-3-1981 as such the Member (Judicial), Board of Revenue Sindh, Hyderabad, vide his orders dated 6-2-1996 passed in Review Petition No,60 of 1995 filed by said owner Raees Khan Muhammad Jamali ordered exclusion of S.No,124/2, 3 from the Khata of Agriculture Research Farm and restored the same in the name of appellant as the Sindh Agriculture University (respondent in that case) could not prove their ownership upon those S.Nos. Subsequently, S.Nos. 124/1 and 4, 125/2 and 164/4 entered in the name of Agriculture Research Farm were also cancelled from its Khata and restored to the Khata of Ch. Zaka Ashraf and others (private owners) vide order, dated 5-11- 1997 of the Member (Judicial), Board of Revenue, Sindh Hyderabad in review petition filed by Ch. Muhammad Ashraf as the Agriculture University (respondent in that case) again failed to establish their, ownership upon those S.Nos. Thereafter S.No,335 of Deh Hotki was also excluded from the Khata of .Agriculture Research Farm and maintained on the Khata of private ownership vide order, dated 16-6-2000 of the Additional Deputy Commissioner-I, Hyderabad as the Sindh Agriculture University Tandojam once again did not prove their ownership upon it hence this appeal."
29. The Assistant Commissioner, Taluka Hyderabad heard the arguments of both the parties. The arguments put forth by appellant, as well as respondent are mentioned in the order, dated 14-4- 2001. The Assistant Commissioner Taluka Hyderabad ultimately passed order dated 14-4-2001. The last three paras. Of the said order are reproduced as under:-- "In the instant case the perusal of Revenue Record reveals that S.Nos.340, 341 and 374 were owned by Ajonial (Evacuee Khatedar) who was running Cotton Ginning Factory. The same were resumed to Evacuee Pool of Central Government due to migration of said Evacuee Khatedar and was therefore, auctioned by the Chief Settlement Commissioner, Sindh (Industries) to Messrs Modern Textile Mills, Limited Tandojam on 18-12-1964 against the highest bid of Rs,3,85,000 and was confirmed in their favour. The permanent transfer order, dated 21-12-1972 was also issued by the Settlement Authorities in favour of Messrs Modern Textile Mills Ltd. Tandojam and such Khata was mutated in their favour vide Entry No,25, dated 8-6-1981 of D.K. Register No,12499, of said Deli. The appellant Mills also purchased remaining piece of 0-23 Ghuntas land out of S.No,341 from claimant Khatedar Abdul Aziz son of Abdul Majid through registered sale-deed dated 23-2-1971 and Khata was also mutated in the record vide Entry No:24 dated 8-6-1981 in the name of purchaser Messrs Starco Ltd. Tandojam (Industrial Unit of Modern Textile Mills Ltd. Tandojam) subsequently, the Modern Textile Mills sold out S.Nos.340, 341 and 374 (area 9-33) of Deh Hotki to Messrs Starco Ltd.
Tandojam through registered sale-deed dated 29-1-1974 and the Khata was also mutated in the name of Starco Ltd. Vide Entry No,26, dated 8-6-1981 of D.K. Register No,12499, the said S.Nos. Are also in possession of, appellant' side since the very day of purchase of land through auction and also purchase from claimant Abdul Aziz. Therefore, the ownership of the appellant side upon the land in-question is proved without any doubt.
' On the other hand the Agriculture University Authorities were afforded full opportunity and given so many chances to produce any documentary evidence in support of their contention and establishing their claim of ownership upon the land in-question but they could not be able to adduce any evidence and proof in respect of acquisition of land, issue of Notification, passing of Award, payment of compensation under, the Land Acquisition Act, 1894 or purchase of land by the University Authorities from any private land owner for Agriculture Research Farm.
' I, therefore, in the light of the facts discussed above, allow the appeal filed by the appellant and order that S.Nos.340 and 341 of Deh Hotki Taluka Hyderabad may be struck off from Entry No,63, dated 16-11-1992 of V.F.VII-A in the name of Agriculture Research Farm and the same shall remain on the Khatas of appellant side in the record of rights as they are in continuous possession of land and have acquired the ownership rights upon that land by purchasing it from the Government of Pakistan in open auction through the registered sale-deed."
30. It is evident that the Assistant Commissioner Taluka Hyderabad passed the order, dated 14-4- 2001 which was ultra vires and coram non judice. It was even perverse and based on conjectures and the facts mentioned therein were mostly contrary to the record. He even did not consider that the appeal before him was badly and hopelessly time-barred and he passed the order without condoning the delay which was not to be condoned impliedly. Obviously, his order was illegal and void ab initio.
31. In pursuance of above, order, dated 11-4-2001 of the Assistant Commissioner Taluka Hyderabad, a note was put on 21-4-2001 against Entry No,63 dated 16-11-1992 that S.No,340 (4-36 acres) and 341 (2-14' acres) are deleted cancelled from the Khata of Agriculture Research Farm and are entered in 1-e name of Starco Ltd. Tandojam. Based on this correction in V.F.VII-B, Mukhtiarkar Taluka Hyderabad made a reference vide his letter No,SC/876, dated 12-9-2001 to the Director, Settlement Survey and Land Records through the Deputy District Office (Revenue), Taluka Hyderabad which was duly endorsed vide his No,HM/209, dated 12-9-2001. The Director Settlement Survey and Land Records declined to make correction in the Survey Record and vide his letter No,C-MISC/3523, dated 25-9-2001 submitted the following facts to the learned Senior Member, Board of Revenue Sindh, Hyderabad soliciting his further orders:-- "In this connection, it is pointed out that S.Nos.340 area 6-29 and 341 area 2-14 acres with other S.Nos. Were merged in S.No,387 making its total area to be 262-02 acres in the name of Agriculture Research Farm vide Ghat Wadh Form No,13, dated 9-6-1953 issued in pursuance of the order of the then Assistant Collector Hala.
' It would appear that the then Assistant Collector Hala, had passed the orders in the year 1953 which have been revised in an appeal filed by M. Mumtazul Haq, Manager Administration, Modern Textile Mills and Starco Limited, Tandojam, for which he was not competent. While passing the above orders, the Assistant Commissioner, Taluka Hyderabad has ordered that S.Nos.340 and 341 shown Entry. No,63, dated 16-11-1992 of V.F.VII-A should be struck off and shall remain on the Khata of appellant in the Record of Rights, being in continuous possession of the land and have acquired the ownership rights upon that land, by purchasing it from the Government of Pakistan, in open auction through the registered sale-deed.
' As stated above, the S.Nos.340 and 341 stated merged in the S.No,387 as per Ghat Wadh Form 13, he said S.Nos. Cannot be deleted from the Agriculture Research Farm. However, further orders are solicited."
32. On the above reference, the matter was referred to the Executive Officer (Revenue), Hyderabad vide letter No,8/62/2001/Rev-I/1908, dated 18-10-2001 of the Additional Secretary (Revenue), Board of Revenue Sindh, Hyderabad. The contents of the letter were:- "I am directed to enclose a copy of letter No,G/Misc.3523/2001, dated 25-9-2001 of Director Settlement Survey and Land Records, Hyderabad, on the subject noted above.
' The issue is that Survey Nos.340 and 341 Deh Hotki were deleted from Deh Map as well as Land Register during 1956 and were included in Agriculture Research Farm, Tandojam on account of acquisition of land. However, the same land is stated to have been auctioned by the Settlement Department and P.T.O. Was issued. The entry in favour of auction-purchaser is also said to have been made. Again the whole land was mutated, in 1992 in favour of Agricultural Research Farm on 18-4-2001. The Assistant Commissioner Taluka passed an order deleting these survey numbers from the Khata of Agriculture Research Farm ordered for mutation in favour of private persons i,e, successorin-interest in auction-purchasers.
' Since the matter is of complicated nature and requires proper scrutiny, including the competency of the Assistant Commissioner to pass such type of order, and if it is found that the order is improper and calls for interference under section 164 of the Sindh Land Revenue Act, 1967. Then the action is to be initiated.
' The matter is referred to you for appropriate scrutiny and taking appropriate action in accordance with the law keeping in view that the Government interest is to be safeguarded."
33. Consequently, the learned Executive District Officer (Revenue), Hyderabad initiated action under section 164 of the Sindh Land Revenue Act, 1967. He issued notices and after hearing the parties, set aside the order, dated 11-4-2001 passed by the then Assistant Commissioner, Taluka Hyderabad.
The last three paras of the aforesaid order, dated 11-4-2001 are reproduced as under:-- "Heard arguments put forth by both the parties, gone through the entire Revenue Record/case papers including documents produced by parties/advocates, and it was found that the appeal filed by respondent No,1 on 24-1-2001 before the Assistant Commissioner, Taluka Hyderabad, against the Entry No,63 existing in the name of respondent No,2 was hopelessly time-barred. The Assistant Commissioner, Taluka Hyderabad should have first decided the point of limitation which he has failed to do so.
' In view of above facts it is crystal clear that, the Assistant Mukhtiarkar, Taluka Hyderabad in compliance of order dated 26-9-1992 passed by Member (Judicial), Board of Revenue has made the mutation in favour of respondent No,2 and the Assistant Commissioner, Taluka Hyderabad was not competent to strike off Entry No,63 effected on the basis of a judicial"order passed by the Supreme Revenue Authority, hence the impugned order, dated 11-4-2001 passed by the Assistant Commissioner, Taluka Hyderabad is ab initio void and has no legal force. It is, therefore, set aside and the Revenue Entry No,63, dated 16-11-1992 existing in the name of respondent No,2 should be maintained with the directions to the Taluka Mukhtiarkar Hyderabad to score off all the remarks kept by him on disputed Entry No,63 in light of order, dated 11-4-2001 of the Assistant.
Commissioner, Taluka Hyderabad.
' Further the Assistant Commissioner, Taluka Hyderabad has without applying his judicial mind has misused his powers in this matter. It is, therefore, recommended that suitable action under E&D Rules may be initiated against him."
34. Being dissatisfied with the above order, dated 11-6-2002 of the learned Executive District Officer (Revenue), Hyderabad, the present appeal has been preferred under section 161 of the Sindh Land Revenue Act, 1967.
35. I have heard the parties at length and have perused the relevant record.
36. The present appeal under section 161 of the Sindh Land Revenue Act, 1967, has been directed against the order, dated 11-6-2002 of the learned Executive District Officer (Revenue) Hyderabad, which he has passed in exercise of his revisional jurisdiction under section 164 of the Sindh Land Revenue Act, 1967. Since the order of the learned Executive District Officer (Revenue) is not an original order and the original order is that of the then Assistant Commissioner Hyderabad, no further application or appeal is competent as provided in second proviso to subsection (4) of section 164 of the Sindh Land Revenue Act, 1967. Had the order of the learned Executive District Officer (Revenue), Hyderabad been original order, then of course as held by the Honourable High Court Sindh, an appeal would have been competent against his order. The learned Executive District Officer (Revenue), Hyderabad in the impugned order has treated the proceedings suo motu whereas the proceedings before him were not suo motu but were taken on the letter No,8/62/2001/Rev.-I(II)/098, dated 18-10-2002. It has been held in PLD 1994 Lah. 334 that where proceedings have been initiated at the instance of an individual, same could not be termed to have been treated suo motu jurisdiction. A mere mentioning of words suo motu in the impugned order, would not itself mean that the proceedings were initiated suo motu. Moreover, it has been held in PLD 1987 Rev. 28, PLR 1987 Rev. 214 and PLD 1988 Rev. 38, that an appeal against an order passed by the Additional Commissioner (now Executive District Officer Revenue) in revisional jurisdiction, is not maintainable. Beside the non-maintainability of the present appeal another, aspect of the case is highlighted that one Chaudhry Ghulam Rasool Manager of Chaudhry Muhammad Ashraf in pursuance of order dated 5-11-1997 of this Court passed in S-REVIEW-121 of 1992 vide his application dated 24-4-2003 approached the Director Settlement Survey and Land Records, Hyderabad for issuance of fresh Ghat Wadh Form by modifying previous Ghat Wadh Form (No13 of 1953) but the later vide his letter (Rubkari) No,LA/MISC/HYD/758 of 2003, dated 3-5-2003 informed Chaudhry Ghulam Rasool as under:-- "It is informed that the above S.Nos. Were deleted from Deh Map vide Ghat Wadh Form No,13 issued on 1953. This Ghat Wadh Form was never challenged and as such it is final. However, new S.Nos.
Can only be formed when the Revenue Authorities so request and such Survey Challan is issued by the Deputy District Officer concerned."
37. Being aggrieved, Chaudhary Ghulam Rasool filed an appeal on 14-5-2003 under section 161 of the Sindh Land Revenue Act, 1967 before the Senior Member Board of Revenue, Sindh with the prayer to set aside the impugned order/Rubkari and allow the appeal and order fresh Ghat Wadh Form of S.Nos.124/1, 4, 125/1, 2 and 164/2 of Deh Hotki, Taluka Hyderabad. This appeal (or revision) has been dismissed by the learned Senior Member, Board of Revenue, Sindh vide his order, dated 2-6-2003. The operative part (para.5 and 6) of the order is reproduced as under:-- "I have considered the arguments put forth by the counsel for the appellant. The Ghat Wadh Form No,13 issued in the year 1953 has not been challenged by the appellant Choudhary Ghulam Rasool during the last 50 years and as such it has attained finality. During the course of hearing the counsel for the appellant has failed to advance any cogent reason which warrants admission of the present appeal at this belated stage.
' Accordingly, I see no reason to admit the above appeal which is hereby dismissed limine."
38. I have heard the parties at length. I have also gone through the old Revenue Record very minutely. The contention of appellant is that they have purchased the disputed S.Nos. 340 and 341 including S.No,374 of Deh Hotki from Messrs Modern Textile Mills Ltd. Tandojam and the Modern Textile Mills had purchased these 'survey numbers admeasuring 9-33 acres from the Settlement Authorities in open auction. In support of their version, they are relying on Permanent Transfer Certificate issued on 20-12-1972 by Settlement Commissioner (Industries), Hyderabad. So far as the sale of Ajomal Lilaram Cotton Factory Tandojam (industrial unit only) is concerned, the Sindh Agricultural University Tandojam has not raised any claim over it. The version of the University authorities is that S.Nos.340 and 341 are not included in the Ajomal Lilaram Cotton Factory Tajdojam now called Modern Textile Mills or Starco, but the land comprising these survey numbers is a Muslim Property which is entered in the name of University.
39. In order to ascertain the truth, I took efforts and to some extent succeeded in getting the old V.F.VII of Deh Hotki, traced out. The position of these Survey Numbers is as under:- No. & date of entryName of transfereeName of Khatedar to whom transferredSurvey Numbers (area)How Transferred (not available)Ajjomal Jaggat RaiLila Ram son Of Ajjomal Chango son of Ajjomal340, 342, 346 Transferred/ inherited Mal from their father Ajjomal on his death.
27-1-1947 Seth Chango Mal Seth Aejomal (full rupee) Seth Chango Mal Seth Ajjomal (0-- 8-00)Seth Lila Ram Seth Ajjomal Seth Lila Ram son of Seth Ajjomal341 (2-14 acres)
374 (3-6 acres)
340 (6-27 acres)
342 (4-35 acres)
346 (5-32 acres)By gift.
25-8-1949 Seth Lilaram Ajjomal (full)Seth Shankardas son of Lilaram (full)340 (6-27 acres)
341 (2-14 Acres)
342 (4-35 acres)
346 (5-3 acres)
374 (3-6 acres)By gift.
10-7-1966 Shankardas Lilaram (full)
Federal GovernmentNaseem Sarwar Daughter of Chaudhary Abdul Rehman342 (4-35)
346/1, 2, 3 (3-10 acres)Received against claim.
40. The original Khata of Ajjomal, as to from where and on what tenure, he obtained S.Nos.340, 342 and 346, is not available/traceable. Similarly the original Khata of Seth Chajo Mal as to from where and on what tenure, he obtained S.Nos.341 and 374 is also not available/traceable. Moreover, it is pointed out by Mr. Muhammad Usman Mangi a representative of Sindh Agriculture University, Tandojam, as well as by the concerned Tapedar that all the above entries are made and signed by Tapedar/Supervising Tapedar and none of them is attested or certified by any revenue Officer/Mukhtiarkar. It is further pointed out that this was in violation of section 135-D(6) of the Sindh Land Revenue Code, 1879 [the corresponding section in the Sindh Land Revenue Act, 1967 is 42(13)] read with Rule 170(1)(2) of the Land Revenue Rules, 1921 (as then was applicable) which reads as follows:-- "135-D(6) entries in the register of mutations shall be tested and if found correct, or after correction as the case may be, shall be certified by a Revenue Officer of rank not lower than that of a Mukhtiarkar's first Karkan."
41. As further pointed out, it was laid down in section 135-I of the Sindh Land Revenue Code, 1879 (corresponding section in the Sindh Land Revenue Act, 1967 is 52) that an entry in the Record of Rights, and a certified entry in the register of mutation shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted. Mr. Muhammad Usman Mangi has urged that since the entries in V.F.VII (old) are not attested/certified by Mukhtiarkar or any other Officer authorized in that behalf, it cannot be treated as true and lawful entries. It has been held in 1988 CLC 1812; PLJ 1988 Lah. 413, that an attested mutation may carry a rebuttable presumption of truth but an unattested mutation simply by a Patwari has no significance importance or value in the eye of law. Therefore, the above entries are not to be considered true and as such it is not proved that S.Nos.340 and 341 were evacuee property. Obviously, their allotment through auction to Messrs Modern Textile Mills, Tandojam cannot be deemed per law particularly when these Survey numbers in the Record of Right viz. V.F.-VII (old V.F.-I, etc. Were (are) entered as Qabuli Land of the university and were merged in S.Nos.387, 388 and omitted/deleted from the Deh Map and others survey and Revenue Record, and were not in existence and available for auction/grant at the time of alleged auction in the name of Messrs Modern Textile Mills Ltd. It is contention of the Sindh Agriculture University that mention of these survey numbers in PTO (photostat copy produced by the appellant) makes the said document (PTO) doubtful for the following reasons:--
(i) The name of Evacuee owner mentioned in Column No,2 page 3 of the PTO, is Ajjomal Lilaram.
This gives an impression that Ajjomal is son of Lilaram whereas Ajjomal is son of Jaggat Rai and Lilaram is his son.
(ii) As per entries in V.F.VII (old) Ajjomal out of the disputed survey numbers, owned S .No,340 only whereas the No,341 was owned by Chango Mal, brother of Lilaram.
(iii) Ajjomal and his son Lilaram both died in Pakistan. The name of Evacuee owner of S.Nos.340 and 341 as mentioned in the Revenue Record would be Shankardas son of Lilaram. Obviously, the name of Evacuee owner Ajjomal Lilaram mentioned in the PTO is wrong and such wrong entry has rendered the PTO doubtful so far as S.Nos.340 and 341 are concerned.
Conclusion
42. Be that what it may be, the point to ponder before me is whether the order dated 11-4-2001 passed by the then Assistant Commissioner, Hyderabad Taluka, whereby he struck off S.Nos.340 and 341 of Deh Hotki, which is merged mentioned in Survey No,387 and is entered in the name of Sindh Agriculture University Farm Tandojam, was legal or otherwise. This point is properly and adequately replied by the learned Executive District Officer (Revenue), Hyderabad in the impugned order, which is reproduced as under:- "In view of above facts, it is crystal clear that, the Assistant Mukhtiarkar Taluka Hyderabad in compliance of order, dated 26-9-1992 passed by Member (Judicial), Board of Revenue Sindh has 'made the mutation in favour of respondent No,2 and the Assistant Commissioner, Taluka Hyderabad was not competent to struck off Entry No,63 effected on the basis of a Judicial Order passed by the Supreme Revenue Authority, hence the impugned order, dated 11-4-2001 passed by the Assistant Commissioner, Taluka Hyderabad is ab initio, void and has no legal force. It is, therefore, set aside and the Revenue Entry No,63, dated 16-11-1992 existing in the name of respondent No,2 should be maintained with the directions to the Taluka Mukhtiarkar Hyderabad to score off all the remarks kept by him on disputed Entry No,63 in light of order 11-4-2001 of the Assistant Commissioner, Taluka Hyderabad."
43. I do not see any illegality or infirmity in the impugned order and it was the only order, which could be passed and has rightly been passed under the factual and legal position explained above.
44. In view of the above explained factual and legal position and for the obvious reason that order, dated 26-9-1992 subject to this Court's orders dated 6-2-1996 and 5-11-1997, by virtue of section 7(1) of the Sindh Board of Revenue Act, 1957 had become final long ago in November, 1997 and that the learned Senior Member, Board of Revenue vide his order, dated 2-6-2003 discussed in para. 37 above has also not admitted the appeal against Ghat Wadh Form No,13, I am not legally competent to give any relief to the appellant.
45. Before concluding the order, I would like to refer to the following remarks passed by the learned Executive District Officer (Revenue), Hyderabad against the then Assistant Commissioner, Hyderabad vide last paragraph of his order, dated 11-6-2002:-- "Further the Assistant Commissioner Taluka Hyderabad has without applying his judicial mind has misused his powers in this matter. It is, therefore, recommended that suitable action under E&D Rules may be initiated against him."
46. Mr. Fareed Ahmed Junejo passed the order in the capacity of a Revenue Officer under the law.
He is protected by section 181 of the Sindh Land Revenue Act, 1967 which contemplates that no suit, possession or other legal proceedings shall lie against Revenue Officer for anything done or ordered to be done in good faith by him as such in pursuance of the Sindh Land Revenue Act, 1967 or of any other law for the time being in force.
47. The learned Executive District Officer (Revenue), Hyderabad has not mentioned as to how Mr. Fareed Ahmed Junejo had not acted in good faith. Unless it is proved beyond reasonable doubt that Mr. Fareed Ahmed Junejo while passing the order, had not acted in good faith, he cannot be dealt with under the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973.
48. Since mala fide intention on the part of Mr. Fareed Ahmed Junejo, is not proved or even alleged, the above remarks of the learned Executive District Officer (Revenue), Hyderabad against Mr. Fareed Ahmed Junejo the then Assistant Commissioner, Hyderabad Taluka, mentioned in the concluding para of the impugned order, are expunged and removed from the impugned order.
49. For the above given detailed reasons, this appeal fails and is hereby dismissed and the impugned order of the learned Executive District Officer (Revenue), Hyderabad is maintained with certain modification as mentioned in para. 48 (ibid). The parties to bear their own costs.