' MUHAMMAD ZAHOORUL HAQ, J.--This petition is directed against the order of Chief Land Commissioner, Sind, Hyderabad, dated 9-9-1979 as being challenged by the petitioner on the ground that he had an absolute choice under para.
13. (I) of M.L.R,115 to choose such of the lands, allotted to him as a claimant, he wants to retain for himself and which land he wants to surrender. But the petitioner's counsel submits that the said order in spite of agreeing with the above provision of law, have in fact restrained the petitioner from surrendering the land which he had sold to Mst. Najmun Nisa as it was under litigation with the High Court. We do not find anything wrong with tke order of Chief Land Commissioner inasmuch as the land sold by the petitioner to Mst. Najmun Nisa was subject-matter of a petition before the High Court filed by Mst. Najmun Nisa in which she had challenged the order of the Land Commissioner Authorities, who had disapproved the transfer in her favour. The said Petition No,114/77 was pending in the High Court at the time of this order made in September, 1979 and it was in fact decided on 22-9-1983 in favour of Mst. Najmun Nisa. Since there was an order of stay by the High Court in respect of land transferred by the petitioner to Mst. Najmun Nisa, therefore, the Chief Land Commissioner was quite justified in excepting the area said to Mst. Najmun Nisa from the choice of the surrender of land of the petitioner. Consequently we do not find any thing wrong with the order of Chief Land Commissioner in that respect.
2. We may also note here that the petition of Mst. Najmun Nisa was allowed on 22-9-1983 and the result is that the sale-deed made in favour of Najmun Nisa by the petitioner on 5-6-1971 has now been approved by the Land Commission Authorities, and therefore, the same automatically goes out of these holdings of the petitioner, which the petitioner was bound to declare in 1972 under paragraph 12 of Martial Law Regulation of 115 of 1972. Therefore, even on that basis the land of Mst.
Najniun Nisa could not be surrendered by the petitioner as he was not the holder of the same on the relevant date.
' In respect of the order dated 25-3-1981 passed by the Deputy Land Commissioner, Sanghar, we find that it is based on the fact that the petitioner has failed to give his choice up to 15-2-1981 and, therefore, his choice given on 16-3-1977 coupled with the order dated 9-9-1979 has been made the basis of the order passed by Deputy Land Commis sioner, Sanghar in respect of the areas to be retained and to be surrendered by the petitioner. Detail is given in Schedules A and B respectively by the said officer. Counsel states that while making these two Schedules A and B his original choice has not been adhered to and further that 60 Acres at Wadhani has been taken as the area retained by him whereas the same should have been completely excepted, as it was not an area which required to be declared under paragraph 12 of M.L.R.
115. This submission appears to be justified in view of the order passed by the High Court in the above petition. It appears to us that the schedule of the area to be retained and surrendered by the petitioner has to be prepared again in consonance with the order of the Chief Land Commissioner, dated 9-9-1979 and the Judgment of the High Court passed in Petition No,114/77.
3. We may note here that the land, which is claimed by respondent No,4 Imam Bux is under dispute in Suit No,32/73 filed by the petitioner against Imam Bux and others and, therefore, that matter would depend upon the adjudication in that suit and hence we are not making any order in respect of the same. consequently this petition is partly dismissed and partly allowed. The direction is given to the Deputy Land Commissioner to prepare a fresh .schedule of area to be retained by the petitioner as well as the area to be surrendered by him. It would be better for the Deputy Land Commissioner to issue a notice to the petitioner as well as to Imam Bux before making schedule.