1. ' MUSHIR ALAM, J.---The only controversy that has emerged in this revision is the entitlement of the applicant for the grant of land in terms of statement of condition as notified on 20th November, 1992.
2. ' In nutshell facts appears to be that the applicant was granted land in open Katcheri on 23rd July, 1980. In appeal it was directed vide order dated 6-12-1980, that Revenue Officer shall decide the matter afresh. Revision filed by Muhammad Yousuf and Ismail was dismissed by Member, Board of Revenue on 15-11-1981. It seems that the Revenue Officer granted half of the land to the applicant No.1 and half to the respondent No.5, vide order dated 16-5-1983.
3. ' In the second round, it seems that, the order of the Revenue Officer was set aside by the Additional Commissioner, Hyderabad on 15-4-1984. It was ordered that, fresh disposal of the land be made.
4. Revenue Officer this time granted half of the land to the respondent No.5, alone, vide order dated 6-1-1985 half of the survey number is still remains unattended by the Revenue Authorities.
5. ' Applicant No.1 did not file any appeal against the above order dated 6-1-1985 before the Appellate Authority. It was only Hashim applicant No.2 who preferred appeal before the Additional Commissioner. Appeal was dismissed on 23rd October, 1985 and so also the Revision by the Member Board of Revenue on 28-4-1987.
6. ' The applicants failing before the Revenue Authority approached Civil Court and filed Suit 153 of 1987. It may be pertinent to note that Ismail who had not challenged the order of the Revenue Officer dated 6-1-1985 joined the suit, which. Was filed on 16-5-1987. The learned trial Court settled the issues. Relevant being for the present controversy is Issue No. B i.e. Declaration that the plaintiff have got preferential right for the grant of suit-land over and above the defendant No.5. Parties led the evidence. Learned Court below came to a conclusion that the suit is not maintainable and merely possession by the plaintiff/respondent without any grant is not legitimate. Suit was dismissed on 9-9-1990 and so also the Appeal No.30 of 1990 was dismissed on 16-5-1991.
7. ' Mr. Jhamat Jethanand, learned counsel for the applicant argued that the initial order passed by the Additional Commissioner dated 28-7-1980, was illegal as he had no jurisdiction to remand the matter to the Revenue Officer, it was, therefore, urged that when the very foundation is illegal, superstructure made thereon will also collapse. It was next urged that, the Revenue Officer while bifurcating the survey number and granting half of survey number thereof to the respondent No.5, had no jurisdiction to bifurcate the same, therefore, on this count also, impugned judgments cannot be sustained. Mr. Jhamat next contended that in order of priority applicant being in cultivating possession, his rank superior to the respondent No.5, who is out of possession. It was lastly contended that, Board of Revenue through order dated 15-11-1981 had remanded the matter for determination of title and status of Ismail and Muhammad Yousuf. It was urged that when first Katcheri came, instead of Yousuf his son Ismail appeared. Order of Additional Commissioner shows that, both the parties are Hari, however, the applicant was found to be in possession and settled on the land. It was, therefore, contended that, according to the Land Grant Policy, the preference is to be given to the applicant who is settled on the land and not to the respondent who is out of the land. He draws strength from the finding of the Board of Revenue, wherein it was recorded by the Member that, both the parties are resident of Alipur.
8. ' Mr. Jhamat further urged that the condition of ten years that has prevailed upon the Revenue Authorities, is not attracted and is alien to the subject Land Grant Policy for the year 1972. It was asserted that the Revenue Authorities as well as the Court below have misinterpreted and confused the definition of Hari as given in Condition No.2(g) of the Land Grant Policy 1972.
9. ' Mr. Jagdesh R. Mullani, learned counsel for the respondent No.5 supports the orders passed by the Revenue Authorities as well as the those of the civil Court. It was contended that the respondent No.5 is landless Hari and has preferential claim over the applicants. According to him Muhammad Ismail predecessor of applicants held land more than the ceiling set down under the Land Grant Policy. He has drawn my attention to the evidence of Muhammad Ismail recorded by the learned trial Court available at page 87 of the file wherein he had made following statement in cross- examination "I have 9 and 1/2 Acres of Qabooli land in my Khata in Deh Alipur. My land is situated in Deh Alipur is two numbers away from the land in suit. It is correct that previously I had 31-00 Acres in Deh Alipur. I have exchanged my Qabooli land 12 1/2 Acres with one Aijaz Ahmed Abro. I got 5-00 Acres land in exchange from Aijaz. He has further drawn my attention to the evidence of Aijaz Ahmed. In cross-examination he made following admission. "I have not exchanged any land with the plaintiff". It was, therefore, asserted that, the evidence clearly demonstrate that applicant is not landless Hari but owns 31-00 Acres of land. It was further asserted that, the applicant No.2 did not bother to appear before the learned trial Court, therefore, he was not able to establish that he qualifies to be Hari within the contemplation of Land Grant Policy 1972. It was next urged that the suit itself was barred under section 36 of Colonization of Government Land Act 1912. In support of his contention reliance was placed on Rais Dil Murad Khan v. Ali Nawaz (1997 M LD 1309) and Alam Sher v. Muhammad Sharif (1998 SCM R 468).
10. ' I have heard the arguments and perused the record.
11. ' To resolve the controversy definition of Hari as given in para.2(g) of the Land Grant Policy 1972, is reproduced which reads as follows:-- "2. In this statement of conditions, unless there is anything repugnant in the subject or context:--
(g) "Hari" (Peasant) means a person owing no land or owing less than 16 Acres of land who for 10 years has been residing in a Deh or in the adjoining Deh or Tapa or District in which the land applied for is situated and who has been cultivating the land or Zamindars, Government land or land in his own holding personally or through any member of his family which shall include his father, son, wife, brother or major grandson."
12. ' The entitlement of the parties in the order of priority is set down is Condition No.4 which runs as follows:-- "4. The order of priorities in making the grants of Haris shall be as follows:--
(a) the Hari holding Khasmokal lease in respect of land for which he applies provided that he has brought the land or a portion thereof under cultivation for at least two years preceding the grants;
(b) the Hari residing in the village near about the land applied for;
(c) the Hari belonging to the same Deh in which the land applied for is situate;
(d) the Hari belonging to adjoining Deh in the Taluka in which the land applied for is situate;
(e) the Hari belonging to the same Tapa in which the land applied for is situate;
(f) the Hari belonging to the same District in which the land applied for is situate; ' Note:---In cases of Haris falling within the purview of clauses (b) to (f) above, the order of preference shall be as under:--
(i) landless Haris;
(ii) haris owning 5 Acres of land;
(iii) haris owning 10 Acres, up to the maximum of 16 Acres: ' Provided that the Revenue Officer or Colonization Officer, may in exceptional cases, make departure from the order of priority in cases of such Haris who have been ousted from their Khasmokal lease due to reservations, if any, made by Government in such land".
13. On bare perusal of definition of Hari and above said condition, it appears that the entitlement in order of preference is given firstly to those persons who owns no land, secondly to those owning less than 16-00 Acres of land. In addition to above condition such Haris who resides for ten years in the Deh or in the adjoining. Deh is also relevant consideration to earn eligibility.
14. ' Examining the case of the present applicant, it appears that all the forum below right from the Revenue Authorities to the civil Courts found that present applicant do not qualify the condition set down above. His own admission contained in the evidence recorded by the learned trial Court supports the case of the respondent No.5 that applicant No.1 is the landless Hari. Apparently in evidence it has come on record that he owns 9 1/2 Acres of Qabooli land in Alipur in addition, he admitted that he had exchanged his 21 and 1/2 Acres of land with Aijaz which fact was denied by Aijaz, in his evidence.
15. ' Contention of Mr. Jhamat that, no document was produced to show that, applicant No.1 owns the land as stated in the evidence. He further urged that if at all he does not own the entire land in his name and is only entitled as a sharer with other family members. Facts remains that on the face of such admission the burden was on the applicant No.1 to show that he does not own the land as has come out in the evidence. After examining the case as examined by the Revenue Authorities and Courts below I am satisfied that there is no jurisdictional error pointed out by the applicant.
16. ' The revision is dismissed with costs of Rs.10,000.
17. ' While the order was concluded Mr. Jhamat points out that 1/2 of the land of the subject survey still remains to be allotted. Authorities are directed to consider the grant of the land strictly in accordance with the Land Grant Policy as may be prevailing at the time of such grant. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.