' Mr. Jhamatmal counsel for the petitioner and Mr. Anwarali Shah respondent in person are present.
Those presents have been heard and the case record perused.
' This is a revision petition against the order, dated 15-4-1975 passed by the learned Commissioner, Hyderabad Division, in respect of Block Nos. 10/6, 7, 8, 13/12, 13 and 48/1 to 4 measuring 827 Acres situated in Deh Bukerani, Taluka Tando Allahyar.
The petitioner's contention is that the disputed land was granted to him on full rate conditions from Rabi 1958-59. He paid the initial deposit and 7 other instalments out of 10. The petitioner also claims that he has spent huge amount on the development of the land and also declared the same under M. L. R.
115. Subsequently the land was cancelled by the Colonization Officer, Sukkur Barrage, Hyderabad from his name and 306 Acres were granted to the respondent on Harap conditions.
' The petitioner has argued that the order of the learned Commissioner, Hyderabad Division, was without notice to him and 316 Acres were cancelled from his name without giving him any reason to explain the correct position The perusal of the order passed by the learned Commissioner, Hydera)ad Division, shows that the allegation made by the petitioner is without my support either through recorded evidence or verbally and is, therefore, lot tenable. In para. 2 of his order the learned Commissioner has observe bat the petitioner has not only remained absent but has refused to take the Iotice of his hearing.
The petitioner has therefore himself deprived of the chance of appearing before the competent authority and explaining the correct position.
' The reasons for non-appearance before the Commissioner have not been explained by the petitioner. The present revision petition, therefore, merits no consideration and is rejected. Cases cannot be reopened on my grounds to cover up the neglect of parties.
Revision rejected.
PLD 1986 Rev. Ill [Sind] Present : Nusrat Hasan, C. S. P., Member, Board of Revenue KHUDA BUX-Petitioner versus NALEY MITHO-Respondent R.O.R. No, 2529/1968-69, decided on 20th April, 1971.
Land Grant Policy- Para. 13-A-Desert area-Mohag right in respect of desert area could be claimed for land, held, for more than 10 years. [p. 1131,41 West Pakistan Land Revenue Act (XVII of 1967)- S. 161-Appea.-Service of notice-Served copies of notices not available on record --Dismissal of appeal in default without proof of service, held, was not maintainable. [p. 113]B PLD 1950 Rev. 530 Jo!.
' This is a revision petition against the order, dated 9-7-1969 passed by e Additional Commissioner, Hyderabad (Mr. Kutibali Shah Hussaini), hereby he rejected the petition of the petitioner for review of the order, ted 17-2-1969 passed by his predecessor regarding grant of piece 'A' aded red in the sketch situated in Deh Makan Vinjhoto, Taluka Mithi.
2. The facts of the case are that the disputed piece was granted to e respondent by the Deputy Collector, Desert. The petitioner preferred appeal to the Additional Commissioner, Hyderabad, which was rejected him, vide his order, dated 17-2-1969 on merits as well as in default. The titioner submitted a review petition to the Additional Commissioner, yderabad, which is rejected, vide the impugned order.
3. The parties urged the following points :- -PETITIONER:
(i) The Additional Commissioner had fixed the hearing of the case for 20-1-1969 at Mirpurkhas but his tour to Mirpurkhas was cancelled and no fresh date was fixed and communicated to the petitioner on that day. No notice was served on the petitioner about the next date of hearing and he was, therefore, absent and the case was heard at Digri on 17-2-1969 behind his back without notice to him.
(ii) The petitioner held S. No, 132 since 1935 by virtue of Ijazatnama, dated 25-7-1934 issued by Mukhtiarkar, Mithi and as he held the land for more than 10 years, he was entitled to grant of the disputed land on its Mohag right vide paras. 13 and 13-A of the Land Grant Policy for Desert area.
The Additional Commissioner, Hyderabad, had erred in holding that the land held by the petitioner had not been confirmed in his name and that he had no locus standi.
(iii) The Additional Commissioner, Hyderabad, rejected the petitioner's appeal, vide his order, dated 17-2-1969 in default and as such the petitioner had to file a review petition in the first instance as case heard in absence is not decided on merits even though the merits are discussed in the order, vide PLD 1950 Punjab Revenue 530.
B-RESPONDENT : (0 Original order was passed on 17-2-1969 and review petition was rejected on 9-7-969. The revision petition has been filed on 9-9-1969. The petitioner was aggrieved by order, dated 17-2-1969 and his revision petition against that order was time-barred by 4 months. There was no application for condonation of delay under section 5 of Limitation Act and as such the petition was liable to be dismissed as time-barred. GO S. No, 132 was held by father of the petitioner and 16 Kachi Bani had been given to the petitione on Mohag right of S. No, 132.
(iii) According to para. I( f ) of the Land Grant Policy for Desert area, Mohag frontage implies to immediate vicinity and any land situated at distance of more than 10 chains from a field is not to be considered as frontage of the latter. The disputed land is not in the immediate vicinity of Kabuli holding of the petitioner and is cut by Sand Dunes and is situated in a separate valley.
4. The petitioner lastly urged that he had challenged the original as well as the subsequent orders, vide his revision petition and that the first order was ex parte and in default and that he had submitted the revision petition within 2 months from the second order and his petition was, therefore, in time.
5. I have considered the arguments put forth by the parties and seen the record. The first order rejecting the appeal of the petitioner was passed by Additional Commissioner, Hyderabad on 17-2- 1969 in default. The file of the office of Additional Commissioner, Hyderabad, shows that notices for 17-2-1969 were issued against the parties but the served copies of notices are not available on the file. It cannot, therefore, be said that the petitioner had any knowledge about the date of hearing and that his absence on the date of hearing was deliberate. I have perused PLD 1950 (Rev.) 530 and in the circumstances the petitioner had to file a Review petition, which was, however, rejected by the Additional Commissioner, vide his order, dated 9-7-1969. The present revision petition has been filed on 9-9-1969 i,e, within two months from the date of the second order. In view of PLD 1950 Punjab Revenue 530, recourse to the review petition was necessary and since the review petition was rejected the present revision petition is in time against the second order and as such against the first order as well,
6. The Additional Commissioner rejected the appeal of the petitioner on the following two accounts :-
(i) The petitioner was not present in spite of service of notice.
(ii) The nature of the tenure of the land held by the petitioner was not Kabuli and as such he was not entitled to grant of dispute land on its Mohag right.
7. The service of the notice on the petitioner has not been established. According to the ljazatnama shown by the petitioner, it appears that S. No, 132 was held by him for more than 10 years and he could claim Mohag right on its basis, vide para. 13-A of the Land Grant Policy for Desert area. Both the points on which the appeal of petitioner was rejected by the Additional Commissioner, Hyderabad, do not hold good. The petitioner has not been heard by the Additional Commissioner and the order passed by him was ex parte. Consequently it will be in interest of justice if the Additional Commissioner hears both the parties after giving them adequate opportunity and he decides as to who has the better claim.
8. In view of these facts, I accept the revision petition and remand the case to the Additional Commissioner, Hyderabad, for fresh decision on merits after giving proper opportunity to both the parties of being heard.