1. ' I take up these three (3) appeals jointly as all the three (3) appeals arise out of the same judgment passed in Suit No,177 of 1980 on 20-12-1980 by the District Judge, Sukkur decreeing the suit.
2. ' The facts giving rise to these appeals are that the agricultural land situate in Deh Maro Wala, Talkua Ubaro was granted to the respondents Nos. 1 to 34 as cited in Ist Appeal No,4 of 1981 by the Colonisation Officer, Guddu Barage on 8-10-1964. The said grant is said to have taken place in open Katchari. The total area granted to the said 34 grantees comes to 555-31 acres. According to the rules then applicable the said land was to be granted to the Haris in the following order of priority: "(a) Haris holding Khasmokal leases in respect of the survey numbers for which they apply provided that they have brought these numbers under cultivation authorisedly for at least two years, out of five proceeding the grant,
(b) Haris residing in village proximate to the land is offered,
(c) Haris belonging to the same Deh in which the land is offered,
(d) Haris belonging to adjoining Dehs in the Taluks."
3. ' The case of the present grantees is that they were Haris in adjoining Dehs Harangra and Jam Pur of same Taluka and, therefore, they were eligible to grant of land and were accordingly granted the same. However, it appears that subsequently the present appellants which included appellant Khan Muhammad and others moved higher authorities through applications challenging the said grant on the grounds that the grant was made outside the Katchari and that the appellants were the Haris in cultivating possession of land in the same Deh i,e, Deh Marowala and, therefore, had preferential right of grant. The appellants also contended that the 34 grantees were outsiders and had no right to the said land. On such applications an enquiry was instituted and in enquiry it was found that the present grantees were not elgible for such land grant and the Colonization Officer vide his order dated 1-8-1966 cancelled the said grants. Against this order the grantees filed an appeal before the Project Director, Guddu Barage, the predecessor-in-title of Commissioner, Sukkur, who by his order dated 14-9-1966 dismissed the appeal of the grantees. The grantees then preferred a Revision Application before the Member, Board of Revenue, West Pakistan who had heard the matter on 1-11-1967. On this date he ordered the notice to be issued in clear terms to all those persons who obtained lease of any of the disputed lands earlier to the grant and also directed the service through proclamation by beat of drum and by pasting of notice on area near the disputed land or on the last known residential addresses of such lesses. The case was then adjourned to 28-11-1967. However, the matter was taken up on 30-11-1967 by Member, Board of Revenue and on this date the learned Member called for certain information from the Colonization Officer, Guddu Barage and also directed the Mukhtiarkar Ubaro to forward Number Shumari, Charukh Shumari and Field Books of Deh Marowala for the period 1954-66. The matter was then adjourned to 2-2-1968. Ultimately the final order was passed on 7-2-1968 on which date the Member, Board of Revenue, although held that the Colonization Officer could not have cancelled the grants of the said 34 grantees himself as that amounts to review of the order of his predecessors but acting in exercise of suo motu revisional powers he confirmed the cancellation of the grant of the said 34 grantees. However, the Member, Board of Revenue refrained from making any observations with regard to the rights of the present appellants on the ground that the same was being adjudicated upon in the lower Courts, as it was said that the appeal of the present appellants was pending before the Project Director, Guddu Barage. The said order however, showed that it was admitted by the attorney of the 34 grantees that some of the land granted to them was already in possession of appellant Khan Muhammad etc. On lease and that they had installed a tube-well in the said land since long before their grant which is functioning and in Survey No,317 of the same Deh the present appellants are residing. Being aggrieved from this order the said 34 grantees filed the above civil suit before Senior Civil Judge, Sukkur which was then registered as Suit No,83/1968. In the suit an application was moved by some of the appellants on 16-4-1970 under Order I, rule 10, C.P.C. Which was allowed by the learned Senior Civil Judge, Sukkur on 5-5-1970. A Revision Application No,125/1970 was filed before the High Court of West, Pakistan at Karachi challenging the said order. This Revision Application was allowed by order passed on 2-10- 1978. Originally the suit was filed against the Government of West Pakistan, Member, Board of Revenue West Pakistan and Director, Guddu Barage Project, Sukkur as defendants Nos. 1 to 3 but after the repeal of Agricultural Development Corporation Ordinance with effect from 7-2-1972 the control of Agricultural Development Corporation over the Guddu Barage was transferred to Sindh Government and, therefore, the Government of Sindh, Member, Board of Revenue, Sindh and Commissioner, Sukkur were substituted as defendants Nos.1 to 3. On 30-9-1978 the suit was transferred to the Senior Civil Judge, (sic) where it was registered as Suit No,340/1978.
4. ' In the meanwhile another application under Order I, rule 10, C.P.C. Was moved which was dismissed for non-prosecution on 2-2-1980. The suit was, however, then transferred to the Court of Senior Civil Judge, Sukkur by order passed on 28-2-1980 on Transfer Application No,2/1980. The suit was then registered as Suit No,39/1980. Again at 'he request of the Senior Civil Judge, Sukkur made on 214-1980 the Suit was transferred to the Court of District Judge, Sukkur and registered as Suit No, F.C. 177/1980. The learned District Judge proceeded with the suit and passed the impugned judgment. The appellants being aggrieved have preferred these three appeals from the said judgment.
5. ' The appeals came up for regular hearing today when Mr. Lachman Das, the learned counsel for the respondents grantees raised a preliminary point with regard to maintainability of the appeals and the learned counsel for the parties agreed that this point be decided first and then if the appeals are found to be maintainable, the same be fixed for regular hearing on merits. Accordingly I have heard the learned counsel with regard to the maintainability of the appeal.
6. ' Mr. Lachman Das, learned counsel for the grantees has submitted that in the present case the appellants were not a party to the suit and, therefore, under section 96, C.P.C. They have no right to prefer the present appeal. He has submitted that this aspect of the case has already been decided in the Revision Application No,125 of 1970, He has referred to the order passed in the above said Revision Application. He has also placed reliance on the case of Q.B.E. Insurance Limited v. The Trustees of the Port of Karachi (1992 CLC 904). In this case a Division Bench of this Court has been pleased to hold: "A person who is not a party to the suit or proceedings has no right to appeal against the decision and this is the position where a person who is not a first party is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal from the appellate Court, before that he cannot be allowed to file an appeal, There is no right of appeal vested in him by any of the provisions of the Civil Procedure Code or by any other provision of law, The only remedy open to him, if his interests are adversely affected or if he is aggrieved by decision of 'the Court, is to approach the appellate Court and ask for leave to appeal which the appellate Court would grant in proper cases."
7. As against this the learned counsel for the appellants has submitted that under the Land Grant Rules as prevalent then the first preference is to be given to the Haris of the concerned Deh as against the Haris belonging to adjoining Deh. The learned counsel has submitted that without prejudice to his case, the very order of the Member, Board of Revenue shows that admittedly the present respondents grantees were the Haris of the adjoining Deh while this very order also shows that the attorney of the grantees had admitted that the appellants were not only the Harts of the Deh under grant but also had their village and tube-well in Survey No,317 of the same Deh. From this the learned counsel has submitted that the appellants would fall In the 'category which has the preferential right of grant and, therefore, a vested right has been created in their favour. The learned counsel has then submitted that the grantees respondents had deliberately avoided to join the present appellants as party to the suit, although they were party before the Revenue Authorities throughout and in fact it was on their applications that the whole question was investigated into. He has submitted that thus the present appellants are affected parties and would be within their rights to prefer the appeal. He has placed reliance on the following cases (1)
8. Ghulam Rasool and 2 others v. Additional Settlement Commissioner and others (1985 SCM R 1832),
(2) MM. Saya & Co. v. Wazir All Industries Ltd., Karachi and others (PLD 1969 SC 65) and (3) India General Navigation and Railway Co. Ltd. And others v. Noor Muhammad (PLD 1960 Dacca 66).
9. ' Mr. S. Sarfraz Ahmed, Additional Advocate-General Sindh appearing for the official respondents has supported the orders of the Member, Board of Revenue and the case of the appellants.
10. I have given anxious consideration to the submissions of the learned counsel and have perused the case papers. As far as the first contention of the learned counsel for the respondents is concerned, it may be observed that at the very beginning of the memorandum of appeal a prayer has been made in C the following terms:-- "The appellants pray for leave to appeal as the appellants who are adversely affected by the said judgment and decree."
11. ' The appeals were admitted for regular heating on 15.2.1981 which order shows that the prayer for grant of permission to prefer the appeal was allowed. This objection of the learned counsel for the respondents, therefore, loses grounds. The other objection raised by the learned counsel for the respondents is with regard to the fact that the present appellants were not the party to the suit and, therefore, they could not prefer this appeal. As already observed the present appellants have been granted leave to appeal. However, even on the facts of the case, prima facie, it appears that it was at the instance of the appellants that all the impugned orders were passed by the Revenue Authorities after having held an enquiry in respect of the grant of land to the respondents grantees.
12. The ultimate effect of the orders finally passed by the Member, Board of Revenue it that the grant made by the Colonization Officer, Guddu Barage stands cancelled and that no grants have been made to present appellants or any other person. The said order of the Member, Board of Revenue also shows that admittedly appellants Khan Muhammad etc. Are living in Survey No,317 of Deh Marowala, which is one of the survey Nos. From amongst the said grants and that they have a tube well sunk in this land and are in cultivating possession of some of the land under grant. In this view of the matter, certainly the appellants Khan Muhammad etc. Can be said to come within the category (b) and (c) as mentioned above and have the most preferential right to the said grant and would be entitled to bid for the said land whenever Revenue Department undertakes the disposal of the land in Deh Marowala. In the case of Ghulam Rasool v. Additional Settlement Commissioner the Hon'able Supreme Court has been pleased to hold: ' We cannot agree with this submission because it is eivdent that if ultimately, Mir Ehsan is not found to be entitled to the transfer and it is held that transfer of land in question in his favour was not legally valid, respondents 5 to 28 will become entitled to purchase the said land by virtue of Act XIV of 1975. They were, therefore, rightly impleaded as respondents by the High Court so that they, too, can be heard when the matter is decided."
13. ' In the present case also as, discussed above, it will be seen that disputed land does not stand granted to any person under the orders of the Member, Board of Revenue and it would thus be open for Revenue Department to grant the land afresh according to the Land Grant Policy and that the present appellant, too, would have a right to appeal for the same and at the same time the respondents also cannot be debarred from contesting for grant. Also in the case of M. M. Saya v.
14. Wazir Ali Industries it has been held by the Hon'ble Supreme Court that stranger to the suit or proceedings would be competent to file an appeal if he is effected by order passed in such suits or proceedings. In the case of India General Navigation & Railway Co. v. Noor Muhammad a learned Single Judge of the Dacca High Court, while dealing with a Second Appeal by a party to a suit but not joined as party to 1st appeal has observed that he has a right to prefer the second appeal with the leave of the appellate Court. In the present case also such leave has been granted to the present appellants.
15. In view of the above discussion I hold that the present appeals are maintainable and be fixed for regular hearing. Since the matter involves litigation between the parties since last twenty-eight years, I direct that these appeals be fixed for regular hearing on 29-9-1992.