1. ' MUHAMMAD ZAHOORUL HAQ, J. -The dispute in this petition centres around Survey No, 113 Deh Gabarji, Taluka Khairpur Nathan Shah, District Dadu measuring 4-30 acres. The land in question had been allotted in 1961 to one Malik Azizullah as it was an Evacuee Land. Azizullah surrendered the same some time thereafter. One Nizamuddin Khan and another person Chhutumal claimed that the land had thereafter had been allotted to them. The petitioners claimed to be the sitting Haris of the said land from 1947 till 1970 and even today they claimed to be in possession of the land It has been alleged that Sobho petitioner No, 2 had purchased the said land from Nizamuddin Khan while the respondent No, 1 Usman had claimed to have purchased the said land from Chhutumal.
2. Petitioner No, 2 Sobho had made application before Additional Settlement Commissioner Land Daduo for cancellation of allotment of Chhutumal and Nizamuddin Khan and the same was allowed on 6-6-1974 but the land was not given to petitioner No, 2 Sobho but was ordered to be included in the list for surrendered land. The petitioner No, 2 felt aggrieved against that order and filed a revision which was disposed of by Additional Member II, Board of Revenue Sind on 9-8-1974 who held that the allotment of the land could not have been made either in favour of Nizamuddin or in favour of Chhutumal son of Imam Khan because there was a surrendered land under Martial Law Regulation 89/91, and therefore, it vested in the Government and could not have been re- allotted. In view of para. 9 of M. L. R. 89 he held that the land should be included in the list of surrendered land.
3. ' While these proceedings were pending, on 13-7-1974 respondent No, 1 Usman purchased the land from department of Barrage on "Harap" condition. The petitioners filed an appeal against the purchase before Commissioner Hyderabad Division who cancelled the land from the name of respondent No, 1 Usman on the basis that Usman did not produce any documentary proof in favour of Harapship and residence of the Deh while in respect of the petitioner he observed that the petitioners were of Haris and residents of the Deh, and therefore, they have claimed for the grant of the disputed land. The revision against the order of Commissioner, Hyderabad Division filed by Muhammad Usman respondent No, 1 against the petitioner was allowed on 30th October, 1975 by Member II, Board of Revenue Sind. He observed that the Colonization Officer Sukkur Barrage had reported to Deputy Commissioner, Dadu that Muhammad Usman was a Hari on Survey No, 113 and that it was confirmed from Khasra-e-Girdawari Register of Deh Gabarji and therefore, he set aside the order of the Commissioner of Hyderabad and re-allocated the land in the name of Muhammad Usman.
4. ' The petitioner has challenged all these orders. The petitioner has filed certified copy of judgment in Suit No, 28/72, dated 22-6-1974 decided by Civil Judge, Khairpur Nathan Shah between Muhammad Usman and Sobho. It was held in that suit that Muhammad Usman was not in possession of the disputed land but that Sobho petitioner was in possession of the same and had got it cultivated. That suit of respondent No, 1 Muhammad Usman was therefore, dismissed. The petitioner has also filed certified true copy of Khasrae-Girdawari of the relevant land issued by Mukhtiarkar Khairpur Nathan. Shah in 1975 which shows that Muhammad Usman respondent was the owner of the land and he was also Hari of the same for the year 1970-71 but for the years 1972- 1973, 1973-74, 1974-75 and 1976-1977 the name of petitioner No, 1 Ghulam Muhammad is shown as the Hari of the said land. It, therefore, appears that the Member of Board of Revenue while deciding the revision of Muhammad Usman on 30-10-1975 has misconstrued the Khasra-e-Qirdawari by saying that Muhammad Usman was Hari of Survey No, 113 in 1975. Since the basis of the order of Member, Board of Revenue is found to be completely unjustified as Khasra-e-Giadawari referred to shows from 1971 to 1975 it was petitioner No, 1 who was Hari of that land and, therefore, he was obviously in possession of the same. Therefore, the order of Member, Board of Revenue appears to have been based on misconstruction of the Khasra-e-Girdawari and being based on wrong assumption of facts is thus without lawful authority.
5. We are clearly of the view that the lower Tribunals have failed to proceed on the correct basis in this case. The land being surrendered evacuee land, therefore, in July, 1974 it could be disposed of only under Scheme prepared for disposal of surrendered evacuee land and para. 5 of the said scheme clearly states that the land shall be offered first to the sitting tenant. In this view of law the land in question should have been offered for purchase on 6-6-1974, when the Additional Settlement Commissioner had cancelled the allotments of Nizamuddin and Chhutuinal to the persons in occupation of land. It could not be disposed of in favour of the respondent on Harap conditions. Even after the repeal of the Evacuee Laws in September 1974 by Order XV of 1974 which was later on converted into Act 14 of 1975, they property in question could have been disposed of only under section 3 of Act 14 of 1975 as it was agricultural land and if it was available for disposal immediately before the repeal of the Evacuee Laws then under proviso to clause B of subsection (1) of section 33 of the same Act, the agricultural land had to be offered for sale to the person who was in occupation and harvesting the said land before 1973. Consequently the impugned orders of the respondents are hereby declared to be without any lawful authority and the matter is sent back to the Board of Revenue for deciding the case after considering the claims of the petitioner and respondents afresh and after allowing them to adduce evidence in respect of the possession of the land and it's harvesting. This petition is disposed of in these terms.