' This is a revision against the order, dated 9-8-1969 of the Additional Commissioner, Hyderabad, whereby he rejected the petitioner's appeal for restoration of S. Nos. 652/2,4,5, 653/2,3,4, 656/1,2, 655/1, 373 and 652/3 (33-8 Acres) of Deh Jhandani, Taluka Sehwan, District Dadu.
2. The facts of the case are that the disputed land was granted on full rate conditions to the following persons :- {{TABLE}} Name of grantees S. No, Area A Forms Istt. Paid
(1) Mahmood Sic) 652/2,4,5 14-33 163 2 out of 10 Muhammad Rind 653/2,3,4
(ii) -do- 656/1,2 10-14 178 1 out of 10 655/1
(iii) -do- Allah Bux S/o 373 4-01 223 1 out of 10 Muhammad Rind 652/3 4-00 343 1 out of 10 {{TABLE}} ' The grants mentioned at serial No, (1) to (iii) were cancelled due to non-payment of instalments by Assistant Revenue 'Officer, vide his order dated 2-4-1938 and grant of serial No, (iv) was cancelled, vide order, dated 11-9-1940 on similar ground. The land was subsequently disposed as shown below :- {{TABLE}} Name of persons S. Nos. Area Year of grant A. Form No, Istt. Paid
(a) Khuda Bux 652/3,4 12-24 Rabi 1807 Full paid s/o Ali Khan 653/3,4 3-02 1954-55 652/5 Rabi 1960-61 1975 Full paid #TBS Abdul Sattar S/o Ahmed Ali Murid S/o #TBE 656/1,2 22-2 Rabi 2085 Full paid on 655/1,2,4 1961-62 16-11-1961 373 4-1 1941-42 1146 Full paid on Kirir. 19-5-1956 T.
0. Issued. {{TABLE}}
3. The petitioner is son of Muhammad and nephew of Allah Bux, the original grantees. The petitioner preferred an appeal against the grant of disputed land to the respondents in 1968 but the appeal was rejected by the Additional Commissioner, Hyderabad vide the impugned order as the grants of the petitioners were cancelled in 1938/40 and there was no justification for coming against that cancellation as late as 1968.
4. I heard the parties on 30-3-1971. They had urged the following points :- A-PETITIONER :
(i) The disputed land was granted to the father and uncle of the petitioner. The grants made to his father were cancelled in April, 1938 and that made to his uncle in September, 1940 due to nonpayment of instalments.
(ii) According to para. 10-A of the Standing Order No, 10, the Barrage Mukhtiarkar had to submit lists of defaulters to the Revenue Officer and he had to pass provisional orders for cancellation of the grants, and had to give notice to the grantee before confirming the cancellation of the grants. No such notice was issued to the grantees. There is nothing in the order of the Additional Commissioner, Hyderabad, that the notice was issued. Limitation would not run against him as the petitioner had no knowledge about cancellation of the grants earlier.
(iii) The Additional Commissioner had erred in holding that T.
0. Forms had been issued to new grantees. T.
0. Form had been issued in case of Mureed only and the petitioner did not want to contest against his grant.
(iv) The application stated to have been given by Muhammad son of the grantee and brother of the petitioner in 1938 withdrawing from the grants referred to in the impugned order, was not genuine as Mahmood, original grantee had, even according to the contention of the counsel for the respondent, died in 1944 and was alive in 1938 and was only competent to surrender the grants.
Mahmood had other sons also and even in the application was from Muhammad, he only was not competent to surrender the grants.
(v) The petitioner had vested rights in the grants and he was to be served with a notice before its fresh disposal as laid down in Standing Order No, 10.
(Note. -The counsel did not press this point when the counsel for the respondents drew his attention that the petitioner had not paid four instalments and right of first refusal had not accrued to him as per the order referred to by him).
(vi) The land was disposed off to the respondents without due publicity in contravention of the order of the Board of Revenue issued in 1958 as held in PLD 1963 West Pakistan (Rev.)
78. The land was not included in Schedules,
(vii) The grants were made to the respondents to some in 1960-61 and to some in 1964-65. The petitioner had remained in possession of the land even after cancellation of the grants till the land was granted to the respondents except that the land granted to Abdul Sattar was still in the possession of the petitioner. B-RESPONDENTS :
(i) The grants made to the petitioner's ancestors were liable to cancellation without any notice as held in Revenue Rulings Vol. II, p.
129. It was unbelievable that the petitioner had no knowledge about the cancellation of grants for a period of 28 years and that he was all alor g waiting for a notice to be served on him. This was merely an untenable excuse and he could not take the shelter of such technicalities.
(ii) The application of Muhammad, brother of the petitioner was more than 30 years old and its genuineness could not be doubted, vide section 115 of the Evidence Act. The present revision petition had been filed by one heir although Mahmood had left behind 5 heirs. When only one heir could prefer the revision petition on behalf of all of the heirs, Muhammad, one of the heirs could also surrender the grants in 1938 on behalf of all the heirs. The documentary evidence could only be rebutted by documentary evidence and verbal assertions of the counsel for the petitioner were not tenable.
(iii) The land had not remained in the possession of the petitioner after its cancellation. Some portion from the land was leased out to Bhojomal and some was granted to Pessumal on permanent basis in 1944-45. The petitioner had not produced an iota of evidence that they had remained in possession of the land after its cancellation.
(iv) The petitioner 'had four brothers and all of them were elder than him. The petitioner had remained in Jail for only one year during 1954-55. The other brothers could against the grant of the land to the respondents if they were really interested in the land. Each day of delay had to be explained vide PLD. 1970 SC 287 and Revenue Rulings Volume II, p. 393 but the petitioner had not explained the delay of 28 years.
5. The counsel for the petitioner had conceded that no remokal action had been taken against the petitioner during the period they claimed to have remained in possession of the land after cancellation of their grants. He had also argued that the petitioner had not paid any instalment for the land after 1938 as no demand notice was issued to them. The counsel had urged that the Additional Commissioner, Hyderabad, had not taken all the points into consideration and that the case might be remanded to him for reconsideration. The counsel had also urged that the Revenue Ruling Volume II, 1966 p. 129 referred to by the counsel for the respondents had been overruled by a subsequent ruling by Mr. Rifat Pasha Shaikh, C. S. P., Member of the West Pakistan Board of Revenue and that he would produce the same. He had also argued that the ruling referred to by the counsel for the respondent had been given in 1966 while the grants were cancelled in 1938 and that the ruling could not have a retrospective effect.
6. I have considered the arguments put forth by the parties and seen the record. I have also seen the order, dated 18-4-1968 passed by Mr. Rifat Pasha Shaikh, C. S. P. Member, Board of Revenue, West Pakistan in R.
0. R. No, 737 of 1965-66 referred to and supplied by the counsel for the petitioner.
7. The grants of the petitioner's ancestors were cancelled during the year 1938 and 1940 and the land was granted to the respondents between 1941-42 and 1961-62. According to entry No, 200 of V.
F. VII for the year 1942 S. Nos. 652/3 and 653/4 were leased out to Bhojomal for the year 1943-44 on Yaksalo basis. According to entry No, 224 dated 2-5-1944, S. Nos. 654/1,2,655 and 563 were disposed of on permanent basis to Pessumal. The petitioner has himself conceded that they were dispossessed of the lands as soon as these were granted to the respondents excep the land granted to Abdul Sattar was still in their possession. The petitioner could not remain in possession of the lands after cancellation of their grants without payment of remokal fine. Under these circumstance it is hardly believable that the petitioner was all along ignorant about cancellation of the grants upto 1968 particularly when they were dispossessed from the lands much earlier.
8. The petitioner has stated that he could not come earlier against the cancellation of their grants because they had no notice about the cancellation of the grants and because he was in Jail for some time. Firstly the issue of notice is not mandatory under any provision of law and secondly as discussed above, the grantees and thereafter their heirs, had knowledge about cancellation of their grants much earlier and they should have come against the cancellation of their grants well- in-time only when the plea of non-service of notice would have been of some avail to them. The petitioner has other brothers too and if at all the petitioner was in Jail for some time, his brothers could have agitated against the cancellation of the grants.
9. The petitioner did not pay a single instalment towards the price of the land after 1938. If they were really interested in their grants and were ignorant about their cancellation, they should not have stopped the payment of instalments altogether should have at least taken some steps to pay the price.
10. The application, dated 6-1-i938 from Muhammad son of Mahmood and brother of the petitioner shows that he had surrendered the grants. The application has remained on record for such a long time. The petitioner has not produced any evidence to rebut its contents and the genuineness of the application cannot be doubted by mere oral assertions. The grantees had left behind other heirs too but the petitioner only has come forward against cancellation of the grants. Muhammad was one of the heirs of the original grantees. He had surreniered the grants. Although the application indicates that he was surrendering the entire grants yet there is no doubt that the application atleast amounted to surrender of his share in the grants. The other heirs of the grantees remained silent for 28 years much shows that they had also waived their rights, if any, in the land. The delay of 28 years shows that the grantees and their heirs had accepted the cancellation of the grants originally but have agitated against it in 1961 only to regain the lost grants which is not justified.
11. In view of the above, the petitioner had not remained ignorant about cancellation of the grants and the delay in preferring the appeal has not been explained except by vague arguments. The petition of appeal before the Additional Commissioner, Hyderabad, was badly time barred and was rightly rejected by him. There is no force in the revision petition, which is, therefore, dismissed.