' This is a revision petition against the order, dated 27-5-1971, passed by the Additional Commissioner, Hyderabad whereby he had rejected petitioner's appeal regarding mutation in record-of-rights in respect of lands originally held by Haji Mir Dos Khan Chandio in Taluka Digri, District Tharparkar.
2. The facts of the case briefly stated are that Haji Mir Khan was holding one rupee share in the agricultural land comprising S. Nos, 35 and rs (area 354-20) Acres is Deh No, 352, Taluka Digri. After his death, Photi Khatabadal was made in the names of the following and legal irs as under :-
(i) Hyder Khan s/o Haji Mir Dos Khan 0-14-0
(ii) Mst. Soni w/o Haji Mir Dos Khan 0- 2-0
3. Out of the above land 289 Acres and 27 Ghuntas is held under restricted tenure under Act III of 1899 and 64-33 Acres as Kabuli land. Mst. Soni wife of Haji Mir Dos gifted her 2 Annas share to her son Hyder Khan by way of mutation statement, dated 1-7-1938 before the Mukhtiarkar, Digri, and later on Hyder Khan gifted his entire land vide his statement dated 24-10-1948 in favour of his La!
Khan and his grand-grand-son Mir Dos in equal shares and such an entry was made in the Record-ofRights bearing No, 119, dated 30-10-1948 and it was attested by Mr. D. D. Jagtiani, former Mukhtiarkar, Digri.
4. At the time of re-writing of Record of Rights in the year 1956. Tapedar of the beat entered the above land in the Record-of-Rights as under :-
(a) Land Held in Restricted Tenure : Hyder Khan S/o Mir Dos Khan 0-14-0 Mst. Soni W/o Mir Dos Khan 0-2-0 1-0-0
(b) Kabuli Land : La! Khan S/o Hyder Khan 0-8-0 Mir Dos Sic) La! Khan 0-8-0 1-0-0
5. The entire land was entered in the names of La! Khan and Mir Dos Khan obviously on the ground that the land held under restricted tenure was alienated by Mst. Soni in 1938 and by Hyder Khan in 1948, without obtaining permission of the Deputy Commissioner, Tharparkar, as required under Act III of 1988.
6. Again on 4-5-1962, Tapedar of the beat entered the entire land in the name of La! Khan and Mir Dos Khan in equal shares but Assistant Commissioner, Mirpurkhas, while inspecting the Record of Rights made a note in village Form VII in 1964 that the entry made by the Tapedar on 4-5-1962 could not carry weight till the permission of higher authority in respect of restricted land is obtained.
7. The Khatedars failed to obtain the permission and Tapedar of the beat while preparing the Record-of-Rights on Punjab Pattern has again brought in Khata of entire land (i,e, 354-20 Acres) in the name of Hyder Khan son of Mir Dos Khan and Mst. Soni wife of Mir Dos Khan.
8. Mst. Soni, Hyder Khan and Mir Dos Khan expired and the Khata of the land was mutated in the names of the following heirs in the Recordof-Rights (on the basis of entries made in the Record-of- Rights in 1956 para. 4 above).
Name of the deceased Share Heirs of New Entry
(a) Restricted Tenure Land:.
(i) Mst. Soni.
0-2-0 Hyder Khan S/o Mir Dos. 12 Paisa
(ii) Ryder Khan s/o Mir Dos.
1. Lal Khan s/o Ryder. 58 P (0-14-0+0-2-0)
Khan got vide (i) above.
2. Mst. Sibiani di() Hyder. 29
3. Mst. Sodhi w/o Hyder. 13 1-0-0
(b) Kabuli Lands :
(i) Mir Dos sic> Lal Khan. 0-9-0 (1) Lal Khan s/o Hyder Khan. 33
(ii) Mst. Hansu w/o Lal Khan 17 50 Pal sa.
(II) Lal Khan sio Hyder Khan 0-8-0 (i) Gul Hasan s/o Lal Khan 0-14 Paisa.
(ii) Hyder Khan 0-14 *11
(iii) Mat. Makan d/o i, 0-07 .,
(iv) Mst. Hansu w/o )9, 0-3* P9
(v) Mao Begum w/o 0-31 ft
(vi) Mst. Sodhi w/o Ryder Khan 0-8* 0-50
9. The petitioner preferred an appeal to the Deputy Commissioner, Tharparkar, who referred the case to the Assistant Commissioner for deciding the issue. The Assistant Commissioner set aside the order of the Mukhtiarkar and made entries in the Record-of-Rights on the basis of the gift made by the deceased Hyder Khan in favour of his son and grand-son in 1948. He, however, directed that the reference may be made to the Deputy Commissioner for granting post facto permission under Act Ill of 1899 in favour of the donees and that departmental action may be taken against the rapedar who scored off the entries, which were duly attested by the Mukhtiarkar, at his sweet-will.
10. The petitioner preferred an appeal to the Additional Commissioner, Hyderabad, which was rejected by him, vide the impugned order.
11. I heard the counsels for the parties. They urged the following points :
(a) Counsel for the petitioner:
(i) The Assistant Commissioner has decided the case without hearing the parties.
(ii) The Assistant Commissioner has stated in the order that permission may now be obtained from the Collector. Post facto permission cannot be granted under section 8 of the Act, III of 1899 as held in PLD 1969 Kar.
324. Permission could be applied for only by Donors, who are since dead.
(iii) Appeal before the Assistant Commissioner, was time-barred.
(iv) The appeal has been dismissed by Additional Commissioner without giving reasons for the same.
(b) Counsel for the respondents:
(i) Mst. Sibiani and Mst. Begum had appeared before the Assistant Commissioner vide page 3 of the order and the order was passed by him is not ex parte.
(ii) Post facto permission can be granted.
(iii) Possession was admittedly transferred to the respondents who have remained in adverse possession for more than 12 years. The rights of the petitioner, if any, were extinguished by adverse possession, vide section 28 of Limitation Act and Articles 142 and 144 of the Act.
(iv) The respondents had given application under section 211 of the Sind Land Revenue Code read with section 8 of Act III of 1899 and there was no limitation to such applications.
(1) It was incumbent upon the revenue authorities to issue notices to the respondents before scoring off the entries relating to them. The Assistant Commissioner had only restored the old entries. These questions should be left to be decided by civil Court. According to Standing Order 17, it is undesirable to affect mutations in Record-of Rights of previous inheritance which is not asserted at the time of Photi Khatabadal.
(iv) The ruling referred to by the counsel for the petitioner is not relevant to the present case as in that case the very women who sold the property contested it. According to section 115 of Evidence Act, the petitioner is stopped from challenging the right now. It would not be proper to dig so deep the revenue record for the purpose. The respondents, are in possession and are paying land revenue.
12. I have considered the case. There is no dispute about the land held on in restricted tenure. As regards land held on restricted tenure, the provisions of section 8 of the Act 111 of 18)9 are quite specific and mandatory in nature. Alienations in the case of the land held under the restricted tenure could in no case be made without prior permission of the Collector. In the circumstances, there was no scope for any post facto permission in such alienations. All alienations made in violation of provisions of section 8 of the Act are ab initio void and could not be mutated in record.
There has been entries and counter entries in record in respect of the restricted tenure land. The entry No, 119, dated 30-10.1948 in respect of the land is even attested by the then Mukhtiarkar. All these alienations were made without permission of Collector and could not be maintained in revenue records.
13. For the above reasons, the revision petition is upheld and all mutation entries including entry No, 119, dated 30-10-1948 in respect of the land held under restricted tenure which were made without the prior permission of Collector are set aside and the entries are restored in the names of the original Khatedars as these existed prior to entry No, 119, dated 30-10-1948. The Mukhtiarkar should now affect changes in the record in the light of this order and also pass orders about Photi Khatabadals of the deceased Khatedars, if any, in accordance with the provisions of Muhammadan Law and according to the prescribed by L. R. Act in this regard.