MUHAMMAD AMEER BHATTI, J. --- Brief facts of the case are that the petitioner was allotted land measuring 2746 Kanals in District Bhakkar in the year 1960. The predecessor of the petitioner died in the year 1989. Later on through MLR' 1989, 869 Kanals of the said allotment were cAncelled while the rest remained with the petitioner. Through MLR 1991, an option was given for the repurchase of cancelled land and in response thereto, the petitioner made an application for repurchase of 869 Kanals. The application came up for hearing before the Deputy Commissioner/Collector, Bhakkar, who vide order dated 15.10.1984 held that the land measuring 869-Kanals surrendered by the petitioner under MLR 1989 was sold to him at the rate of Rs. 100/- per PIU, subject to the confirmation of this order by the Board of Revenue.
2. The Board of Revenue did not confirm the said order and as a result, the petitioner preferred a writ petition. bearing No. 4081/1985 which was disposed of vide order dated 29.01.1989 wherein the Member (Colonies), Board of Revenue was directed to grant an opportunity of hearing to the petitioner and decide the application of the petitioner pending since 1962. Thereafter, the Member (Colonies), Board of Revenue dismissed the application of the petitioner vide order dated 30.09.1989.
Thereafter, once again, the petitioner preferred a writ petition bearing No. 8192/1989 against the said order, which was decided on 02.12.1990 with the direction that as the dispute involved factual controversy the petitioner was directed to take appropriate proceedings by filing a civil suit, if so.
Advised. Thereafter, the petitioner filed a civil suit for declaration on 03.01.1991. The said suit was decreed in favour of the petitioner -on 13.03.1996. Respondents preferred an appeal before the learned Additional District Judge, Bhakkar, who dismissed the appeal on 26.02.2001, which order has been challenged before this Court.
3. Learned counsel for the petitioner contends that the application was duly filed and in support of the same he has referred Ex.P.1, Ex.P.2 & Ex.P.17. He further referred to paragraphs 4 and 9 of the plaint and, in particular, the reply filed to paragraph 4 in the written statement. He lastly submitted that no witnesses were produced in support. Of the case of the respondents whereas the petitioner produced two witnesses. He relied on (PLD 1959 Peshawar 81), (1981 CLC 353) and (1991 CLC 1783) in support of his contention.
4. On the other hand learned Assistant Advocate General in support of the judgment contends that the order of the learned first Appellate Court is in accordance with law and the facts and circumstances and no exception can be drawn to interfere in the order:
5. I have heard the learned counsel for the parties and have gone through the record of this case.
6. I find that the order passed by the Member.
Board of Revenue impugned in the present suit has been challenges through a W.P. No. 8192/1989 in this Court and vide order dated 02.12.1990 learned Judge white disposing of the writ petition made the following observation:--- "The real dispute between the parties is as to whether the Dak Bahl evidencing the submission of application indicating the exercise of option to purchase the surrendered land, by the petitioner is genuine as held by the Deputy Commissioner or has been subsequently interpolated as held by the Member Board of Revenue. It is not possible to resolve this question without recording evidence which cannot be done in present proceedings. The remedy of the petitioner lies in filing a civil suit."
From bare reading of this observation, it is crystal clear that the learned Judge was not in a position to decide the propriety of orders without recording the evidence.
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7. The perusal of the impugned judgment reveals that the learned first Appellate Court while setting aside the judgment of the learned Trial Court has not relied on any evidence, whatever produced by the parties, but simply relied on the order of the Member Board of Revenue and this order found undue consideration/favour of the learned District Judge in comparison with the order of the Deputy Commissioner. So, the finding of the learned first Appellate Court is just based on the comparison of the two orders passed by the different authorities, rather than the entire material/evidence available in the case file. Hence, the judgment impugned on the face of it seems to be a departure from the observation, made by this Court and this Court comes to this compelling conclusion that the order dated 26.02.2001 is liable to be invalidated for being counter to parameters prescribed by this Court. Although the order of the learned Trial Court is based on the available evidence, yet, without commenting on the evidence available on the record , I deem it appropriate to remand the case back to the learned first Appellate Court to decide it afresh after providing the opportunity of hearing to the parties and appraisal of entire evidence tendered by the parties available on the record. Consequently the C.R. Is allowed and Judgment and decree dated 26.02.2001 is setaside.
8. In the light of foregoing discussion, parties are directed to appear before the learned District Judge, Bhakkar on 14.11.2011, who shall deal with the /is either himself or entrust this case to the learned Addl. District Judge for deciding the matter afresh within a period of four months from taking over the charge of this case. With the above direction, this petition stands disposed of/remanded back. If any party does not enter appearance before the learned District Judge, he shall procure the attendance of parties before deciding the matter in the interest of justice. No order as to costs.
Civil revision /Case remanded.