' This is a revision against the order, dated 12-1-1971 of the learned Additional Commissioner, Khairpur Division, whereby the order of the A. R.
0. Granting S. No, 130 and others total area 22-25 Acres in Deh Langah, Taluka Khairpur granted to the petitioner were set aside with further directions that the respondent should also be heard before the land under dispute was disposed of.
2. The facts of the case are that the brother of the petitioner Syed Gul Shah was granted the disputed land in the year 1951 and on account of non-payment of instalments on the due dates the land was cancelled in the year 1962. Thereafter, the land was released through the schedule of 1966, and only the petitioner gave offer for its purchase with the result that the land was granted to him. Being aggrieved by this order the respondent filed an appeal before the learned Additional Commissioner, who set aside the orders of the A. R.
0. Granting land to the petitioner with further directions that the respondent should also be heard before the land was disposed of. It is against this order that the petitioner has come in revision before this Court.
3. The Advocate for the petitioner mainly contends that :-
(i) The appeal was filed by the respondent on 14-12-1970 and no application under section 5 of the Limitation Act for condonation of delay was filed and, therefore, the order of the learned Additional Commissioner is bad in law as according to the law in force, each day of delay is to be explained.
(ii) That the petitioner is the brother of ex-grantee Gul Shah from whose Khata the grant was cancelled from Rabi 1960-61 and, therefore, it was not necessary for the Barrage authorities to have sent notice informing about the disposal of land to the respondent who resides at Quetta.
(iii) That the respondent's brother ex-grantee Syed Gul Shah had died about 5 years back but it appears that from 1959 or 1960 he had not paid the arrears resulting in the cancellation of the grant. If he would have been keen to retain the land, he should have paid the instalments upto his lifetime.
(iv) That according to the instructions incorporated in the Standing Order 10 (a) it is not incumbent on the Barrage authorities to issue notice in case the ex-grantee was in arrears of more than 4 instalments. More so, the policy of cancellation in the Barrage Department is automatic and, therefore, final notice was not necessary as the cancellation automatically followed default in payment of the instalments.
(v) That the land was released through the schedule and it was sufficient opportunity to the respondent to have come forward to record offer or request for regrant and, therefore, in view of above circumstances the case of the petitioner is strong and requires sympathetic consideration.
4. The Advocate for the respondent, on the other hand, states that :- (i)That the disputed S. Nos. Were originally granted to the brother of the respondent Syed Gul shah and this grant was cancelled due to non-payment of instalments in the year 1961 without notice to him, and that the ex-grantee died about 5 years back and that neither the respondent nor his heirs knew about the cancellation of the grant till it was granted to the petitioner.
(ii) That in case the land was cancelled it was Incumbent on the Revenue authorities to have imposed removal fine against the cultivation raised in the land and the petitioner or the heirs of the ex-grantee would have been alert in making the payment.
5. I have seen the record and find that the grant stands cancelled for non-payment of the instalments in the year 1961 from the Khata of the respondent's brother Syed Gul Shah. He had paid two instalments and 8 instalments still remained to be paid by him. Moreover, the land was released in the schedule of 1966 and it was the duty of the petitioner or the heirs of the ex-grantee to have recorded the offer or requested for its regrant in time. The notice in the name of the ex- grantee was also issued by the Barrage Makhtiarkar, Khairpur on 6-4-1970 informing him regrarding the disposal of the disputed land but the notice was received by him unserved with an endorsement of the Kotar that the whereabouts of Syed Gul Shah are not known. In fact such notice was not at all necessary as the ex-grantee was in arrears of 8 instalments and he had paid only two instalments. Therefore, his case is not covered by the provisions of Standing Order No, 10 which lay down specific conditions under which the notice was required to be issued. Even according to the condition attached to the full rate grants the final notice was not necessary as automatic cancellation policy follows default on account of non-payment of instalments on the due dates.
The legal position being such, I find that the oder of the learned Additional Commissioner directing that notice, should be given to the petitioner was not in consonance with the above, provisions. I, therefore, uphold the appeal.