1. ' The appellant being aggrieved from the judgment and decree passed by the District Judge, Sukkur in C.A. No,18 of 1984 allowing the appeal of the present respondent No,1 setting aside the judgment and decree passed by the Senior Civil Judge, Ghotki in Suit No,376 of 1978 in favour of the present applicant has preferred this revision application.
2. ' Briefly the facts are that the present applicant had filed the said suit for declaration and injunction. His case is that one G.M. Shaikh was allotted agricultural land under Lot No,15 comprising of survey number 97/1 and others admeasuring about 100-28 acres in Deh Sanghri, Taluka Ghotki, District Sukkur during the year 1963 under the R/R Government Servants Scheme. The above said land was purchased by the defendant No,5 Ghulam Mustafa Shah from the above-said allottee G.M. Shaikh through a registered sale-deed in the year 1966/67 and that he is in possession of the said land. It is further the case of the applicant/plaintiff that he is owner of survey numbers 24 and 25 in the same deh which are adjacent to Block Nos. 113/1 and 114/4 total area of which comes to 3- 8 acres (hereinafter referred to as the suit land). The suit land being Government land was granted to the applicant/plaintiff in the year 1971/72 on the basis of Mohag right. This grant was challenged in appeal by the defendant No,5 Ghulam Mustafa Shah on the ground that suit land was included in the grant of G.M. Shaikh from whom he had purchased the whole lot in the grant. He also moved an application before the Secretary, Land Utilisation Department, Board of Revenue, Sindh the defendant No,2 seeking remedy on administrative side and the said Secretary ordered to grant stay in favour of defendant No,5 with the result that the appeal before the defendant No,4 was kept pending. However, in the year 1973 defendant No,2 directed the defendant No,4 to decide the said pending matter which was however, not decided till 24-7-1973 when the defendant No,2 intimated defendant No,4 that the request of plaintiff for grant of suit land was rejected on the ground that the same was included in the Kabuli land of defendant No,5. The plaintiff then moved an application before the defendant No,2 for reconsideration of the matter. This application was forwarded to defendant No,3 by defendant No,2, who treating the same as suo motu revision passed the orders on 17-5-1977 without hearing the plaintiff, whereby he dismissed the said application/suo motu revision. The plaintiff then preferred a review petition before defendant No,3 which was also dismissed on 13-6-1977. The plaintiff, therefore, filed the said suit praying for the relief of declaration that the suit land is not included in the lot originally allotted to the said G.M.
3. Shaikh and that the subsequent orders passed by the defendants Nos. 2 and 3 on 24-7-1973, 17-5- 1977 and 13-6-1977 are arbitrary, illegal, mala fide, fraudulent and ultra vires etc. He has also sought consequential relief of injunction. Plaintiff also claimed to be in possession of suit land and that he is paying the land revenue assessm ent.
4. ' The defendants Nos.1 to 4 did not contest the suit and the suit was ordered to proceed ex parte against them by order passed on 22-10-1979. Defendant No,5 filed his written statement and contested the suit. His case is that the original grant made to G.M. Shaikh was subsequently measured and it was found that the same did not admeasure 100-28 acres but was short by about 15-11 acres and the suit land being Government land was granted to him to make up the deficiency.
5. He also took the plea that the suit being barred by law is not maintainable. The trial Court framed the following issues:-
(1) Whether the Blocks Nos.113/1, 114/4 of Deh Sanghri were included in Lot No,15 granted to the defendant No,5?
(2) Whether the above land was granted to the plaintiffs on Muhag right?
(3) Whether the actual area of S. Nos. Included in Lot No,15 was less than 100 acres and whether the suit land was granted to the defendant No,5 in order to complete deficiency?
(4) Whether the orders of defendants Nos. 2 and 3 are illegal and without jurisdiction?
(5) What should the order be?
6. ' Both the plaintiff and defendant No,5 led the evidence and the trial Court finding issues Nos.1,2 and 4 in favour of plaintiff decreed his suit as prayed. Being aggrieved by this judgment and decree the defendant No,5 respondent No,1 preferred the appeal before the District Judge, Sukkur who was pleased to allow the same and the judgment and decree passed by the trial Court was set aside.
7. Hence this revision application.
8. ' I have heard the learned counsel for parties and Mr. Muhammad Siddiq Kharal, the learned Additional A.-G. Sindh. The learned counsel for the applicant has submitted that the District Judge has misread the evidence and that his judgment suffers from misapplication of the legal provisions and is based on surmises. He has drawn my attention to the prayer clause in the suit. He has submitted that his prayer is not that the suit land stands granted to him but his prayer in the suit is to the effect that the suit land does not stand granted to the defendant No,5/respondent No,1 and that the Revenue authorities be directed to dispose of the same in accordance with the provisions of Land Grant Policy. I have examined the above contention of the learned counsel for the applicant and have examined the evidence brought on record by both the parties. It is admitted position that one G.M. Shaikh was granted a lot comprising survey number 97/1 and others admeasuring about 100-28 acres which he sold to present respondent No,1 and that the land was measured afterwards and given block numbers. The plaintiff/applicant in his evidence has produced the certified copy of record of rights as Ex.42. This document is dated 15-9-1967 and shows the mutation of record in favour of purchaser, the present respondent No,1 who purchased the land from G.M. Shaikh. This document also shows the details of each block number which are 29 in number. The actual corresponding area of each block number is also mentioned and the total comes to 100-28 acres. This document does not include suit land (Block Nos.113 and 114). From this document it is obvious that the suit land was never included in the lot of 100-28 acres allotted to the original allottee G.M. Shaikh. As against this the present respondent No,1 has not brought any documentary evidence on record. He examined his attorney partially who has not produced any document to rebut this contention of plaintiff. In these circumstances I have no hesitation in holding that the suit land was not included in the grant of the allot-tee G.M. Shaikh and therefore, the present respondent No,1 has no right to it.
9. The District Judge has further based his findings on the premise that the plaintiff claims the land to have been granted to him but in fact the grant in favour of plaintiff being `Eksala' lease the same would not create any rights in his favour. No doubt the grant in favour of plaintiff is only an Eksala lease but by virtue of this lease he had been put in possession of the same and continues to be in possession which fact he has proved through production of the Land revenue assessment receipts which show that he has been paying the land revenue till the year 1978 when the suit was filed. Now under the Land Grant Policy the previous lease of or cultivating possession thereof are amongst the priorities to be taken into consideration and, therefore, certainly the plaintiff/applicant would be entitled to advance his claim on the basis of above priorities in his favour at the time the suit land is to be granted by the Government.
10. ' The learned counsel for the applicant has then referred to the two orders passed by the defendant No,3/respondent No,3 on 17-5-1977 and 13-6-1977. He has submitted that his application moved before the Secretary (defendant No,2) was referred to the present respondent No,3 who, treating the same as suo motu revision, dismissed it ex parte by the above-said orders. The very order in the opening lines reads: "Petitioner absent. His counsel Mr. Assardas also absent. Notices were issued to both of the petitioners, through Mukhtiarkar. (Notices not received back served or unserved) Counsel by post". It does not show if the notice to counsel was sent allowing sufficient time for service or that it was sent through c ordinary or registered post. This fact shows that the order passed against the plaintiff is ex parte without giving him an opportunity of being heard. This order, therefore, being in violation of principles of natural justice cannot be sustained in law. The learned counsel for respondent. No,1 has submitted that the plaintiff was given an opportunity of placing his case before the respondent No,3 during the hearing of his review application which was dismissed on 13-6-1977 and, therefore, the plea of not being heard is no more available to him. The contention of the learned counsel for respondent No,1 loses force when the said order is read. The order reads:"
11. "Present petitioner with counsel Mr. Ghulam Kadir Soomro. Heard. Papers seen. My order dated 17- 5-1977 is clear. There is nothing in this application to controvert my observations in that order. The petitioner has no case at all. In the circumstances this petition is dismissed summarily."
12. This shows that the respondent No,3 has merely confirmed his previous order without applying his mind to the case of the applicant. This order not being based on any sound reasons is also not sustainable.
13. ' The upshot of the above discussion is that it is declared that the suit land is not included in the original grant of Mr. G.M. Shaikh and is available for grant D by the Government according to the prevalent Land Grant laws. It is also declared that the orders passed by the respondents on 24-7- 1973, 17-5-1977 and 13-6-1977 are arbitrary, illegal and in ala fide. The judgment and decree passed by the District Judge Sukkur is set aside and the judgment/decree passed by the Senior Civil Judge, Ghotki is restored. The revision application is accepted with' costs throughout. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.