TAMEEZUDDIN KHERO, MEMBER. Being aggrieved and dissatisfied with the order dated 10th September 2002, passed by learned EDO (R) Dadu whereby he had rejected the appeal of the petitioners being badly time barred and on merits also, in respect of survey number 525 (2-0) acres formed out of UA No. 272 of Deh Aminani, Taluka Dadu, District Dadu. The petitioner has preferred this Revision Petition on consideration of following facts and grounds:
2. The facts of the case in brief as stated by the petitioner are that the respondents were granted an area of 5-15 acres from UA No.272 of Deh Aminani, Taluka Dadu vide A-Form No. 3575 from khareef 1958-59 by the learned Colonization Officer Sukkur Barrage, Hyderabad. That the grant in question was fully paid up and revised sanction was issued by the learned CO Sukkur Barrage, Hyderabad; and a new survey number 525 was formed admeasuring 2-00 acres vide order dated 2nd January 1998 by CO Sukkur Barrage. Hyderabad and also TO A Form was issued in August 2000. That the petitioner filed an appeal against the revised sanction issued by the learned CO Sukkur Barrage, Hyderabad; vide order dated 2nd January 1998, before the learned Additional Commissioner-II, Hyderabad and under the new setup the same was transferred to the learned EDO (R) Dadu. That the learned EDO (R) Dadu disallowed the appeal of the petitioners being badly time barred and also on merits vide impugned order, hence this Revision Petition on the following grounds:
3. That the impugned order passed by the learned EDO (R) Dadu is opposed to law, facts, justice and equity and is liable to be set aside. That the finding of the learned EDO (R) Dadu that the appeal has been filed after 42 years and no cogent ground has been advanced for condonation of delay is not sustainable. The petitioners filed appeal against the order of revised sanction and not against the original grant of respondents. Hence the finding given by the learned lower Court is erroneous and misconception of facts. That survey No. 525 is newly formed from UA No. 272 of Deh Aminani and allowed to the respondents in revised sanction. It is submitted that infact survey number 325 does not fall within the original grant of respondents and it is out of their grant sketch, area of survey number 52'5 at the site is approximately about 2 acres. Thus, revised sanction allowed by the Colonization Officer in respect of survey number 525 is void ab initio and illegal. That newly formed survey number 526 (from UA No. 272) is under occupation of houses of petitioners and their relatives. That from the grant sketch of respondents it would transpire that survey No.527 and 526 come within his grant sketch and not survey number 525, respondents grant sketch is relied in this context. That the measurement has not been made on the site but in office this fact has not been considered by the learned lower Court. That, the land in question granted to the respondents lies within 20 chains of village Daim Panhwar which is an established village and also shown in Deh map. It is further submitted that as per old Land Grant Policy, the land lying within 20 chains was also to be disposed of with the consultation of villagers but in the instant case the authorities have failed to adopt the said procedure. That, no proper opportunity of being heard was afforded to the petitioners while deciding the case, hence they are condemned unheard. That, on the whole the impugned order is illegal, void, bad in law and is liable to be set aside.
4. The petitioners therefore have prayed that this Honorable Court may be pleased to.
I. Set aside the impugned order and revised sanction dated 2nd January 1998 and allow the revision petition and exclude survey number 525 from the grant of respondents as the same does not fall within his original sketch.
II. That original land grant paper of the respondent may be called from the barrage authorities.
III. Stay order till the final decision of the petition may be granted.
5. The case came up for hearing on 1st October 2019 and was partly heard. The next date of hearing was 19th November 2019, when the case was fully heard. The Advocate for petitioner Mr. Sagir pleaded and repeated the stance mentioned in the memo of petition given above. He has further pleaded that the revision is against revised sanction order and thus it is within 30 days of the revised order. The counsel for petitioner has relied on 2009 CLC 604 (Peshawar) whereby it has been held that when an order was passed at the back of the party and without notice to the party, said order would be void ab initio and the mischief of limitation would not come in the way of said party. He has further relied upon 2007 SCM R 834 (Supreme Court of Pakistan) whereby it has been held that order passed in violation of mandatory provisions of law---no period of limitation would run for challenging such order. They have further relied on 1995 M LD 506, whereby it has been held that the conveyance deed issued on 12th May 1988 was also void being superstructure raised on the void order earlier passed. The Commissioner was not divested of the jurisdiction to decide the appeal of the petitioner against the order dated 18th April 1988, on the basis of which the conveyance deed was issued, because in fact it was the legality of the order dated 18th April 1988 which was to be decided in the said appeal and bar of jurisdiction as regards cancellation of conveyance deed was not operative. If order dated 18th April 1988 had been set aside, the conveyance deed would automatically have been nullified having no independent legal sanction and being superstructure of order dated 18th April 1988. The petitioners have also relied on Revision No. 41 of 1968-69 decided by learned Mr. Hussaini Kutib Ali Shah, PCS, Additional Member Board of Revenue Sindh, vide order dated 27th April 1971. It was held that service of notice on villagers for disposal of land within 20 chains of village site was necessary under the order issued by the Government of Sindh vide Resolution No. R-9373-E, Dated 20th July 1944. This clearly shows that merely presence of some of the villagers at the time of katchehry will not imply waiver, of the condition of serving notice on the villagers and inviting their objections within 30 days.
6. The advocate for respondents. Mr. Qureshi pleaded that Revision Petition was badly time barred and the revised grant was made within grant sketch and the application for condonation of delay cannot be granted as delay has not been justified. He has further stated that the grant is fully paid and TO Form has been issued and status of land has changed into the Qabuli land in view of Judgement reported under PLD 1997 Karachi (sic). He has further pleaded that Revenue Authorities have no legal authority to change status of Qabuli land. Therefore, the Revision Petition may be dismissed.
7. The perusal of order dated 10th September 2002, passed by learned Mr. Allah Dito Shar. EDO (R)
Dadu, in appeal reveals that the order was passed in presence of appellant Nasarullah and respondents Suleman as well as Arbab. Attorney of the other legal heirs of deceased Muhammad Siddique. The learned EDO (R) has stated in his order that the grant was very old and had changed its status to Qabuli and possession was also with the respondents. Therefore, he would not interfere with the grant being badly time barred, so the appeal was dismissed.
8. The perusal of A-Form No. 3525 shows that respondent Muhammad Siddique was allotted (5-15) acres. from UA No. 272 along with some other survey numbers in the year 1958-59. Perusal of letter No. 17 dated 2nd January 1998 of CO Sukkur Barrage, Hyderabad, addressed to Barrage Mukhtiarkar, Dadu; shows that the measurement C has been carried out within the grant sketch and necessary revised sanction in respect of newly formed survey numbers 525 and 526 total area of 05.15 acres were formed out of UA No. 272. Deh Arninani, which was granted in the name of Mohammad Siddique on Harap condition from 1985-86 vide A-Form No. 3575. He has further reported that after measurement neither area has been increased nor decreased.
9. The, perusal of newly formed survey numbers shows that survey number 526 has been formed within 20 chains of village Naon Goth while no grant sketch was produced by either the petitioners or the respondents. Verification of Village Form V11-A. Deh Aminani shows that under entry No. 116 the grant of land to Mr. Muhammad Siddique Bughio including 5-15 acres from UA No. 272 has been shown and verified by Mukhtiarkar Dadu on 5th June 1986. Verification of Village Form Deh Aminani, shows that a Ghat Wadh Form has been entered in this Deh vide entry No 15/175, wherein survey number 272 has been shown to have an area of 149-35 acres and whole this area is shown to be Kharabo. Out of this whole area, 7.7 acres have been measured and new survey numbers 525(2.0), 526(3.15) and 527 (1-32) have been created, Subsequently, Muhammad Siddique has been allotted an other survey number 231(1-38) acres by CO Sukkur Barrage also. Vide entry No. 199 dated 19th September 2002, survey numbers 525, 526 and 231 have been transferred to his LRs.
10. The perusal of case file shows that one Sajjan son of Muhammad Hussain Bughio filed a civil suit before Senior Civil Court Dadu under Suit No. 46/98 for specific performance of contract in respect of land bearing survey number 272 (2-15) acres and 231(1-31) acres Deh Aminani, Taluka Dadu, as he had purchased that suit land from respondents Suleman and others in consideration of Rs.56500/- vide agreement of sale dated 6th June 1997. The Civil Court vide judgment and decree dated 21st December 1999 passed order in favor of plaintiff. On 13th March 2001 the Senior Civil Court Dadu allowed the execution application of Sajjan for Registration of Property in his favor. Thus 3rd party interest was also created in these survey numbers.
11. Perusal of file, shows that one Mr. Sajjan, decree holder, had filed an intervention application before this Court dated 2nd June 2003 for joining him as necessary party. However, he did not pursue that application.
12. I have heard this case at length. The case file has also been perused carefully and minutely. The case law cited by the counsel for parties has also been evaluated. After careful consideration of the case before me I have come to the following findings:
1. That the grant was made in the year 1958-59 under the Terms and Conditions of Peasants Grants issued by the then Government of Sindh vide Resolution Dated 20th July 1944, and not under the Rules framed by the Governor of West Pakistan under section 62 of the Sindh Land Revenue Code 1879, for the grant of land to the peasants in the Ghulam Muhammad Barrage area, as claimed by the petitioners.
II That, under the above Land Grant Policy of 1944, notice was required to be issued to the villagers at least 30 days before the grant of land in open Katchehry.
III. That, no such notice was issued, neither the land within 20 chains of the village was advertised in schedule on offer for disposal.
IV. The respondents have not been able to show a copy of grant sketch neither the petitioners, however, Barrage Mukhtiarkar report shows that the newly formed survey numbers were within the grant sketch. In such a case, the grant was made within 20 chains of the village Naon Goth, as far as survey number 526 is concerned.
V. That the 3rd party interest of Sajjan created through Civil Court decree was based on the allotment of survey numbers 525 and 526 to the then applicant Muhammad Siddique who is shown to be resident of village Khairo Dero, those LRs further sold some of this land to Mr. Sajjan.
13. Keeping above discussion in view, I am of the considered opinion that the allotment of area forming survey number 525 to the then applicant Muhammad Siddique was done legally and lawfully. I therefore hereby find no need to order exclusion of survey number 525 from the grant area. As for the creation of 3rd party interest by sale to Mr. Sajjan is concerned, this sale is governed by Civil Court, order. The prayer of the petitioners to exclude survey number 525 cannot be acceded to, as from the map produced by the parties and relied upon by the Survey Department showing newly formed survey numbers, survey number 525 seems to be beyond 20 chains of the village, besides no grant sketch has been produced by the parties. The order dated 10th September 2002 passed by the then learned EDO (R) Dadu is affirmed. The Petition is thus dismissed on merits, in the above terms.