' This is first appeal from the judgment of learned District Judge, Dadu, dated 25th July, 1969, whereby the suit of respondent No, 1 against appellants Nos. 1 and 2 was decreed with cost.
2. The suit of the respondent No, 1 was that Survey No, 365/A-B situated in Pipri Taluka Dadu admeasuring 9-13 acres was surrendered by respondent No, 2 Mst. Roshan Jehan Begum under M.
L. Rs, 89-91 (of 1961). Respondent No, 2 had, under the above M. L. Rs, an option to purchase this land before the target date which was 28th February, 1962. It is alleged by respondent No, 1 that Mst.
Roshan Jahan Begum did not exercise her option, therefore, the land was offered by the Deputy Rehabilitation Commissioner, to him as he was Mauroosi Hari of this survey number. He has relied on order, No, R/620, dated 8th June, 1963 (it is actually 8th July, 1963) which is Exh. 57 on the record of the trial Court, passed by Deputy Commissioner (Lands) Dadu, in support of his claim over the survey number in suit under M. L. R. No, 89-91. It shall be advantageous to reproduce the order (Exh. dated 8th July, 1963, which is the basis of the plaintiff/respondent No, l's claim which runs as under :- "No, R/620 of 1963 Dadu, dated 8th July, 1963 Read,
(1) Application from Jurio son of Soomar Pan whar of Dadu Taluka, requesting grant of postponement for crediting the instalments of purchase money of surrendered land viz., Nos. 365/1, 2 of Deh Pipri Taluka Dadu.
(ii) Letter No, 1420, dated 1st July, 1963 from the Mukhtiarkar Dadu for recommending the request of the applicant.
' Order of the Deputy Commissioner, Dadu Postponement for crediting the 1st, 2nd and 3rd instalments of purchase money of surrendered land is hereby granted to the applicant up to 31st December, 1963 on payment of penal interest at the rate of 9% on the amount of instalments.
(Sd.) Deputy Commissioner, Dadu.
Attested.
Superintendent Deputy Commissioner Office, Dadu.
Copy forwarded to the Mukhtiarkar Dadu for information. Copy to applicant."
3. After sometime respondent No, 1 came to know that the land in question had been transferred by the Deputy Rehabilitation Commissioner, Dadu to respondent No, 2 Mst. Roshan Jehan Begum, in pursuance of an option given by her attorney Mirza Ahmad Ali Baig on 15th February, 1962.
According to respondent No, 1, this option by the attorney of respondent No, 2 was given after the expiry of the prescribed date and as such the transfer of the suit land by respondent No, 3 to respondent No, 2 was null and void. Respondent No, 1, therefore, filed a suit for declaration and injunction against the Deputy Rehabilitation Commissioner and Mst. Roshan Jehan Begum that the transfer of the land in favour of Mst. Roshan Jehan Begum was null and void. Appellants Nos. 1 and 2 were joined latter as defendants Nos. 3 and 4 to the suit, because they had purchased the same land from Mst. Roshan Jehan Begum.
4. The suit was contested by respondent No, 2, who alleged that her brother Mirza Ahmed Ali Baig had exercised option on her behalf on 15th February, 1962 for the purchase of the surrendered land, that the entire price of the suit land was also paid by her and that record-of-rights was also mutated in her favour. She further stated that appellants Nos. 1 and 2 (who were defendants Nos. 3 and 4 in the suit) were Mauroosi Haris of this land, that she had sold away the land in suit to them and that the record has also been mutated in their favour. They are also in actual and physical possession of the land. It was further alleged that respondent No, 1 was not a sitting Hari on the suit land, nor any order was passed by respondent No, 3 transferring the land in question in his favour.
5. In their written statement, the appellants Nos. 1 and 2 also supported the case of respondent No, 2 and claimed that they had lawfully purchased the land in suit from Mst. Roshan Jehan Begum and are in actual and physical possession of this land. They have categorically stated that respondent No, 1 Jurio never remained in possession of the suit land since 1961. Some legal pleas were also raised in the written statement by the above defendants. Following issues were framed by the trial Court :-
(1) Whether the suit is maintainable in present form?
(2) Has the defendant No, 2 exercised option within prescribed time to purchase the surrendered land, if so, what is its effect, and whether it is legal and binding on the plaintiff ?
(3) Whether Qassim Panhwar was the sitting Hari of S. No, 355/1-2, in the year 1961-62 and 1962-63 and not the plaintiff, if so, what is the effect ?
(4) Whether Jurio, the plaintiff, was ever the recorded Hari of S. No, 365/1-2 prior to the year 1963 ?
(5) Whether the defendant No, 2 after the receipt of the notice, dated 16th December. 1964 paid all the instalments of the surrendered land with interest and hence her title became complete and valid ?
(6) Whether the said survey number was wrongly allotted to the plaintiff as a sitting tenant ?
(7) Whether the plaintiff was given any timely notice of allotting this S. No, to the defendant No, 2 ?
(8) Whether the date 11th April, 1966 mentioned in para. 6 of the plaint is the date the order of the Deputy Commissioner to the defendant No, 2 to pay the instalments or it is the date of the order to Mukhtiarkar for the mutation of the name of defendant No, 2 in the Revenue Records ?
(9) Whether the S. No, in dispute is in possession of the plaintiff or the defendant No, 3, who has since purchased it from the. Defendant No, 2 ?
(10) Whether the plaintiff's suit is hit by Sind Tenancy Act, 1950 ?
(11) Whether such records regarding receipt of application for purchase of surrendered lands are maintained by the Office of the D. R. C. Dadu and has the plaintiff produced any such record to be by that option to purchase surrendered land was not exercised in time i. e. On 16th February, 1962 ?
(12) Whether the plaintiff was sitting Hari and not allowed to purchase the same by defendant No, 1 ?
(13) Whether the jurisdiction of the Hon'ble Court is barred under section 15 of M. L. R. No, 89 as amended by M. L. R. No, 91?
(14) For what S. No, the option was exercised by the defendant No, 2 ?
(15) What should the decree be ? "
6. After recording evidence of the parties the learned District Judge held that respondent No, 1 Jurio was recorded sitting Hari of the land in question since before 1963 and had validly exercised the option on account of failure of respondent No, 2 to have exercised the option to purchase this land within time. The suit of the respondent was, therefore, decreed in terms of the reliefs sought in the plaint which were as under :- "(a) That the order of D. R. C. Dadu, dated 11th April, 1966 is without jurisdiction and ultra vires, void and of no legal effect and it was passed without notice to the plaintiff.
(b) That the defendant No, 2 has failed to indicate her option to repurchase the land within the time, specified and hence forfeited her right for re-purchase absolutely.
(c) That the application for permission to purchase does not indicate that in which year it was made nor there is any indication on the file of the case as to whom the same was made and therefore the whole transaction is illegal and manipulated and does not confirm any right on defendant No, 2 and the order, dated 11th April, 1966 passed by defendant No, 1 granting mutation in favour of defendant No, 2 has been passed without lawful authority and is illegal.
(d) That the order No, R/362, dated 8th July, 1963 is legal and is still in force.
(e) That the Honourable Court will direct the defendants not to interfere in the peaceful possession and enjoyment of the plaintiff and grant any other relief which the. Honourable Court deems fit."
7. The above judgment has been challenged in this first appeal by the purchasers Shah Muhammad and Amir Bux, inter alia, on the following grounds :-
(a) That the judgment of the trial Court is in disregard of the provisions of law ;
(b) That the decision of the trial Court that the land was not transferred to respondent No, 2 by the Settlement Authorities under M. L. R. No, 89-91, was without jurisdiction ;
(c) That the trial Court has erred in brushing aside the documentary evidence produced by respondent No, 2 ; and
(d) That the decree for injunction has become infructuous, because respondent No, 1 has himself admitted that he is out of possession of the land.
8. Respondent No, 1 has not produced any evidence in respect of tranfer of this land to him under M.
L. R. No, 89-91, except the letter Exh. 57 which has been reproduced above. This letter does not amount to transfer of survey number in question to respondent No,
1. It only allows him to pay instalments for the land. But the order, in pursuance of which respondent No, 1 was entitled to pay instalments, is nowhere to be found on the record. It is doubtful if respondent No, 1 at all filed any application for exercising the option. He has produced a simple copy of an application, dated 15th April, 1962 which is thumb-marked by him and is addressed to the Deputy Rehabilitation Commissioner. This application does not bear the initial of any Officer and has not been produced by any Officer of the Rehabilitation Department. The application, therefore, does not show that it was received by the Deputy Rehabilitation Commissioner on 15th April, 1962. It is application in original as it bears the thumb-mark of respondent No,
1. Hence if it was actually made on 15th April, 1962 then some Officer of Deputy Rehabilitation Commissioner's office would have endorsed its receipt under his initial and signature. The application (Exh. 66), therefore, does not prove anything.
So far as the letter (Exh. 57) is concerned, it is the only document which, according to respondent No, 1, is the order of the Deputy Rehabilitation Commissioner transferring the land in suit to him. This document is dated 8th July, 1963. On this date there was a bar of transfer of surrendered land to sitting Haris, This ban was imposed on 2nd March, 1963 and was removed on 8th April, 1964 vide notification of the Chief Settlement Commissioner No, 1260-64/1830-R (L)V, dated 8th April, 1964 (see page 365 of the Displaced Persons Land Settlement Act by M. A. Latif 1970 revised edition). It is, therefore, proved that even if the letter (Exh. 57) is deemed to be an order of transfer of land to respondent No, 1, it will be ineffective and void by virtue of the bar to, transfer of surrendered land to sitting Haris on the above date.
9. So far as the transfer of the suit land to respondent No, 2 is concerned, this respondent has produced letter (Exh. 55) addressed to Deputy Commissioner, dated 15th February. Although the year has not been mentioned, but the Settlement Authorities have entertained this application, accepted the option of respondent No, 2 and had, in pursuance of this option, transferred the suit land to her by order, dated 11th April, 1966 which has been produced as Exh. 60 on the trial Court's record.
10. It has been argued on behalf of respondent No, 1 by Mr. Abdul Majeed Khan that in the option letter (Exh. 55) the word 'excluded' has been written against Survey No, 365/A-B, which indicates that the option has been exercised in respect of survey numbers other than the one in dispute. Mr. G. H. Abbasi on the contrary has argued that the word 'excluded' appears to have been added by tampering with this document. Had this survey number been excluded from the option, then its area 9 acres 13 ghuntas would also have been excluded from the total area of 19 Acres 24 Ghuntas, which was the total of all survey numbers including the disputed one, for which option was exercised. Hence there is no substance in the argument of Mr. Abdul Majeed Khan that the option was not exercised in respect of the survey numbers in suit.
11. It is further alleged that Mirza Ahmad Ali Baig, the brother of respondent No, 2, who has exercised option had no power-of-attorney on behalf of respondent No, 2 to exercise the option. This objection is misconceived because power of attorney, if at all, must have been filed before the Deputy Commissioner (Lands) Dadu, who was the competent authority to satisfy himself that the person exercising the option had the authority on behalf of the claimant who had surrendered the land.
12. Mr. G. H. Abbasi learned counsel for the appellants has referred to paragraph 15 of M. L. R. No, 89 and argued that no order passed under M. L. R. No, 89 shall be challengeable before any Court including High Court or Supreme Court. The bar of paragraph 15 is in the following words :- "15. Bar to jurisdiction of Courts, etc.-No provision of this Regulation or any order made or any Scheme prepared thereunder shall be called in question in any Court including the High Court and the Supreme Court and no such Court or any other authority shall have jurisdiction in respect of any matter for the determination of which provisions have been made by or under this Regulation.
(2) No such Court or authority as aforesaid shall be competent to grant any injunction or order of any other kind whatever in relation to any proceeding under this Regulation or any order or Scheme made thereunder or in relation to any thing done or intended to be done by any officer exercising any power or discharging any function under this Regulation."
13. M. L. R. No, 89 is to be read alongwith M. L. R. No, 91 which has amended the former. The learned counsel for respondent No, 1 has failed to show that the Deputy Rehabilitation Commissioner had in any way acted beyond the purview of the provisions of M. L. R. 89-91. An option was exercised by the claimant Mst. Roshan Jehan regarding surrendered land within the prescribed time. The Rehabilitation Authorities had accepted the option and acted thereupon and in pursuance thereof transferred the surrendered land to respondent No, 2 vide the order (Exh. 60). It may be stated that respondent No, 1 had challenged this order by way of appeals and revisions before the Settlement Authorities but his appeals, applications and even review application were all dismissed by the competent authorities. I am, therefore, satisfied that no fault can be found with the order of the Rehabilitation Authorities whereby the survey number in suit was transferred to respondent No, 2 in pursuance of her option which was accepted by the Settlement Authorities as valid and which was upheld even by the Settlement Commissioner. The learned District Judge did not take into account the documents produced by respondent No, 2 and wrongly held that the letter (Exh. 57), dated 8th July, 1963 amounted to transfer of land in suit to Jurio. While taking this view, he did not even take care to refer to the bar which was imposed upon transfer of surrendered lands to sitting Haris between 2nd March, 1963 and 8th April, 1964. This bar was imposed by notification of the Chief Settlement Commissioner, dated 2nd March, 1963 (see page 361 ibid) and was removed on 16th November, 1964 as stated above. The letter (Exh. 57) being dated 8th July, 1963 having been issued during the prohibited period, cannot be treated even otherwise as a valid transfer order.
' Consequently the appeal is allowed and the suit filed by respondent No, 1 against the appellants and other respondents is dismissed with costs.