1. ' ABDUL HAYEE KURESHI, C.J.--On 21-4-1983, we had concluded the hearing of this petition and passed a short order to the following effect:--
(i) The order passed by the Member (Auqaf & Settlement), Board of Revenue Sind, dated 18-5-1981, in Case No,S.Review-4/80-81, is held to be of no legal effect.
2. (ii)The order of Member (Auqaf & Settlement), dated 9-6-1980 in case SROR-201 of 1979-80 is restored.
3. ' Let the parties bear their own cost".
4. ' The reasons for such short order presently follow.
5. ' The petitioner, Muhammad alias Metharo, who is a Hari, had, at an open Katchery held by the Colonisation Officer, obtained land measuring about 4 Acres in Deh 29 Dad, Taluka Nawabshah.
6. The grant was made under a scheme for providing land to Haris. Respondent No,2 filed an appeal against the said grant before the Additional Commissioner, Sukkur Division. He objected to the grant in favour of the petitioner on a ground that the petitioner was a minor schoolgoing boy, and that the father and brothers of the petitioner were granted land as Haris. The petitioner had set up a case that he was a young man, and he had five grown-up brothers, who were also Haris. The entitlement of respondent No,2 was also challenged on the ground that he was not a resident of the same Deh. It was also contended by the petitioner before the Additional Commissioner that respondent No,2 had purchased and owned 200 acres of land. The grant in favour of the petitioner was cancelled by the Additional Commissioner mainly on the ground that he was a schoolboy. The petitioner, therefore, filed a Revision Petition before the Board of Revenue. The main contention of the petitioner was that he had completed his schooling long back. In regard to entitlement of respondent No,2, the petitioner stated that the latter had purchased some land from private parties, and that he was a resident of a different Deh. The Member of the Board of Revenue, on examination of some School Leaving Certificates, came to the conclusion that the petitioner had completed his education before the grant of land. He also held it as a fact that the father of the petitioner was a cultivator, and he could also help the petitioner in cultivating the land. The Member held that the petitioner was a Hari, and, having obtained the land in open Katchery, the grant had been illegally cancelled by the Additional Commissioner. This order was passed on 9-6- 1981, but, thereafter, respondent No,2 filed a Review Petition against the same order. This Review Petition was heard by the same Member of the Board of Revenue. By an order, dated 18-5-1981, the earlier order, dated 9-6-1980, was reversed, and the grant in favour of the petitioner was cancelled.
7. The Member, Board of Revenue, further ordered that the case may be remanded to the Colonization Officer for further verification and disposal of the disputed land in accordance with the new land grant policy. At the time of hearing of the Review Application, the respondent No,2 set up a case that the petitioner was not Muhammad alias Metharo, but some other person. He produced some order, showing that 12 Acres of land had been allotted to one Allah Warrayo son of Ismail in 1977, or, 1978. It was also stated that the original Muhammad alias Metharo was aged only twelve years, and therefore not entitled to grant of land as a Hari. Some allegations about interpolation in some certificates were made. In the last paragraph of the order, the Member, Board of Revenue, observed as follows:-- "I have heard both parties through their Advocates, and perused the relevant record. Since new and important point has been placed and proved through the documents that Muhammad is not Mithero but Allah Warrayo is Mithero who was not eligible for the grant of land, I, therefore, uphold the review petition."
8. ' In regard to the petitioner being a minor, and, for such reason, being disentitled to land as a Hari, Mr.Imamally G.Kazi, appearing for the respondent, candidly stated that he would not be pressing that point. Mr.M.M. Pirzada, who had appeared for the petitioner, invited our attention to clause (g) in paragraph 2 of Notification No,KBI/1/30/ 72/7179/7784, issued in exercise of powers conferred by subsection (2) of section 10 of the Colonization of Government Lands (Punjab) Act, 1912. The term "Hari" is defined, and the definition reads as follows:-- "(g) "Hari" (Peasant) means a person owning no land or owning less than 16 Acres of hind 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 had been cultivating the land of 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;"
9. The above definition would clearly show that there is no bar to a minor getting Government land, if he can get the same cultivated by A his father, son, wife, brother, or, major grandson. In any case, there is no bar to a minor obtaining Government land as a Hari.
10. ' Mr. M.M. Pirzada has mainly raised two contentions:--
(1) That a Review Application was not competent, and the order, that had been passed, could not be passed on a Review Appli cation, and
(2) That the respondent No,2, being the owner of substantial land, was not entitled to the grant of this land as a Hari.
11. ' The powers of review are conferred on the Board of Revenue by section 8 of the West Pakistan Board of Revenue Act, 1957. Section 8 reads as follows:-- "8. Review of order by the Board.-(1)--Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record, desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require."
12. ' It would appear that section 8 is couched in more or less the same terms as Order XLVII, rule 1, C.P.C. The question, that now remains, is, whether the order was passed on account of discovery of new matter, or, some error apparent on the face of the record, or, on any such ground. It seems an attempt was made to show that the petitioner was not Muhammad alias Metharo, but some other person. This attempt had been made solely with the purpose of showing that the person, to whom land had been granted, was a minor. The Member, Board of Revenue, had, before him, an affidavit, stating that the petitioner was aged twenty, or, twenty-one years, On a reference to the documents, concerning the age of the petitioner, the Member, Board of Revenue, did not record any finding in regard to majority of the petitioner. Even If he had recorded such a finding in clear terms, the matter would not have changed its complexion, for even a minor can be a Hari. However, in the last paragraph of the order re-produced above), the Member, Board of Revenue, arrived at a conclusion that petitioner Muhammad was not Metharo. There was hardly any material for coming to that conclusion. In any case, the identity of petitioner Muhammad was not discovery of a new and important matter, or, evidence. In any B case, the petitioner was recognized as Muhammad alias Metharo even b respondent No,2.
13. ' There is another fact, which has persuaded us to grant relief to the petitioner, and that is the fact that respondent No,2 is a Zamindar, who had purchased 15.12 Acres of land from one Nawab (referred to the order of Member, Board of Revenue, dated 9-6-1980). This respondent, according to the order of the Additional Commissioner, is alleged to bellowing 200 Acres of land. Under clause
(g) of the notification issued by the land Utilization Department (re-produced above) a Hari is such person who owns less than 16 acres of land. Mr.lmamally G.Kazi was not able to deny respondent No,2 did hold land.
14. ' For the above reasons, we allow this petition to the extent as is stated in the opening paragraph of this judgment.