' Petitioner Mithan s/o Umer has filed this Constitutional Petition challenging the order dated 18-3- 1982 passed by the Senior Member Board of Revenue (respondent No,1) in respect of land bearing Survey No,153, measuring 8-18 acres situated in deh Kumb, Taluka Tando Muhammad Khan. This land alongwith another Survey No,154 was included in the Schedule for disposal to the landless haris by the Revenue Officer, Kotri Barrage, Hyderabad. Katchery was held on 16-3-1981 in which Survey No,153 was granted to respondent No,3 (Abdul Karim) and Survey No,154 was granted to his brother Ghulam Hussain (respondent No,2. Both were applicants before the Revenue Officer Kotri Barrage. Petitioner had neither participated in the Katchery nor applied for the grant of the said lands. However, petitioner alongwith one Sadiq Ali challenged the grant in favour of respondents No2 and 3 in respect of Survey Nos.153 and 154 by filing an appeal before the Additional Commissioner, Hyderabad Division, Hyderabad, who by his order dated 11-11-1981, held that respondent Abdul Karim was not eligible for grant of the land as he had failed to establish his harap right and further ordered that the said land bearing Survey No,153 be granted to the petitioner, who, according to the Additional Commissioner, was admittedly a hari over another land adjacent to Survey No,154. By the same order dated 11-11-1981, the grant in respect of Survey No,154 made in favour of Respondent No,3, Ghulam Hussain was maintained by the Additional Commissioner. Respondents Ghulam Hussain and Abdul Karim challenged the order of the Additional Commissioner by way of appeal before the Member, Board of Revenue, who heard the parties at length and came to the conclusion that the petitioner had no preferential rights for the grant of land as he had failed to establish his harap right over Survey No,153. Respondent No,1, by order dated 18-3-1982, accordingly reversed the order of the Additionla Commissioner in respect of the grant of Survey No,153 in favour of the Petitioner and further ordered that Survey No,153 be restored to respondent Abdul Karim.
2. Aggrieved by the order dated 18-3-1982 of the Senior Member, Board of Revenue, the petitioner filed this Constitutional Petition. Arguments of Mr. Raja Qureshi, learned counsel for the petitioner and Mr. A.Q. Halepota, learned counsel for private respondents Nos.2 and 3 were heard by, us on 19-11-1990. Mr. K.M. Nadeem. Learned A.A.-G. Had appeared on behalf of the Board of Revenue and submitted that, since the dispute was beteen private parties, this petition may be decided after hearing the arguments advanced on their behalf. On conclusion of the arguments, we dismissed the petition with no order as to costs by a short order dated 19-11-1990. Reasons for dismissal of the petition are given in this judgment.
3. Mr. Raja Qureshi, learned counsel for the petitioner, had contended that respondent No,1 was not competent to hear a second appeal. He referred to proviso (ii) to Section 161 (1) of the Land Revenue Act, 1967, which, according to the learned counsel, provides that when an 'order is modified or reversed in appeal, it shall attain finality and, therefore, the second appeal filed by the private respondents before the Board of Revenue was incompetent.
' His other contention was that additional evidence at the level of the Board of Revenue was tendered by Respondent No3 which ought not to have been taken into consideration as the Petitioner had no opportunity to rebut the same.
' Mr. A.Q. Halepota, learned counsel for the respondents Nos.2 and 3, on the other hand argued that the appeal before the Board of Revenue was competent, It was pointed out that, in paragraph 4 of the memo of petition, the petitioner himself had takenup the position that an appeal was competent before the respondent No,1 on a point of law under the provisions of section 166 of the Land Revenue Act, 1967. This section had been amended by Sindh Ordinance XI of 1980 and by that amendment, clauses (a), (b) and (c) of subsection (1) of section 161 were renumbered as clauses (b), (e) and (d) and a new sub-clause (a) was added. And after amendment, an appeal lies to the Board of Revenue under clause (d) from the original or appellate order of the Commissioner on a point of law. According to Mr. A.Q. Halepota, the second appeal before the Board of Revenue by private respondents was competent.
4. Reliance had been placed by Mr. Raja Qureshi on proviso (ii) to section 161 (1) of the Land Revenue Act, 1967 which is to the following effect:- "(i) ................
(ii) When any such order is modified or reversed on appeal by Collector, the order made by the Commissioner on further appeal, if any, to him shall be final."
' According to Mr. Raja Qureshi, the aforesaid proviso barred a second appeal before the Board of Revenue. As observed earlier, under clause (d) of Section 161 (1) an appeal from an original or appellate order passed by the Commissioner lies on a point of law to the Board of Revenue. Proviso
(ii) is to the effect that in case an order passed by a Revenue Officer is modified or reversed on appeal by the Collector, and a further appeal is filed by the aggrieved party before the Commissioner against the appellate order of the Collector modifying or reversing the original order of the Revenue Officer, the order made by the Commissioner on further (or second) appeal shall be final. In the present case, the order passed by the Commissioner was not passed in further (or second) appeal but it was passed by the Commissioner in first appeal. In the circumstances, a second appeal lay before the Board of Revenue on a point of law and it was not barred by proviso
(ii) to Section 161 (1).
5. On the other contention raised by Mr. Raja Qureshi, that additional evidence was looked into by the Member Board of Revenue for the first time and the Petitioner had not been given any opportunity to rebut such additional evidence, Mr. A.Q. Halepota, learned counsel for the private respondents submitted that no additional evidence was produced by the private respondents. On perusal of the impugned order of the Board of Revenue, we find that Advocate for respondent No,3, had pointed out before the Board of Revenue that Petitioner held land on his Khata which disentitled him from the grant of disputed land as he was not a landless hari. Respondent No,1 in his impugned order has observed that admittedly the Petitioner held land which he inherited from his father and therefore, he could not be deemed to be a land less hari, Even in the memo of petition, no averment has been made that the petitioner did not inherit any land from his father and did not hold any agricultural land to take him outside the definition of a landless hari. The observation in the impugned order that admittedly the Petitioner held lands inherited from his father and, therefore, he was not a landless hari at the time of grant of land to him, has not been controverted in the memo of petition. In para 5 of the counter-affidavit filed by respondent No,3 in this petition, it has been stated that the Petitioner was not a landless hari but was a zamindar as the Petitioner and his brother had inherited 250 acres of land from their father on his demise. No rejoinder was filed by the Petitioner. This also_confirms the position that the petitioner was not a landless hari and as such not entitled to grant of land as a landless hari.
6. It was also contended by Mr. A.Q. Halepota that the Petitioner was not even present in the Katchery while the land was being disposed of by the Revenue Officer, Kotri Barrage, and, therefore, on appeal by the Petitioner before the Additional Commissioner, Survey No,153, could not have been granted to the Petitioner. The contention raised by Mr. A.Q. Halepota is supported by the provisions of the Land Grant Policy contained in Notification No,KB/1/1/30/72/7179/7784 dated 20-11- 1972. This notification regulates the grant of State land to the haris (peasants) or small land- holders, whose holding does not exceed 16 acres. Condition 6 (4) in the said Notification provides that grant to the haris shall be made in open Katchery, where objections may be raised against improper selection of a hari. It is also provided in the said Notification that eligibility of each applicant is to be determined at the time of the disposal of the said land. As the Petitioner was neither present at the time of Katchery nor did he apply for Survey No,153, the same could not have been given to him in appeal by the Additional Commissioner, Hyderabad. The order of the Additional Commissioner in appeal granting Survey No,153 to the Petitioner was not valid in law.
7. For the aforesaid reasons the petition was dismissed but with no order as to costs.