' SAJJAD ALI SHAH, J.---This appeal through leave of the Court is directed against judgment dated 21-5-1986 of Division Bench at Sukkur, of the High Court of Sindh, whereby Constitutional Petition No,D-126 of 1984 filed by appellants herein is partly allowed to the extent and with direction to the Deputy Land Commissioner, Jacobabad, to decide after hearing the parties entitlement, if any, of the parties under MLR 115 within six months.
2. Briefly stated the relevant facts are that appellants herein are displaced persons from Mangla Dam and they alongwith other displaced persons were allotted 507 acres of State land situated in Deh Domewali, Taluka Kashmore, District Jacobabad and possession was delivered to them on 18- 3-1967. This land was earlier leased out to Mir Ali Bilawal Domki who had surrendered the same to the Government under MLR-64. Prior to the allotment to displaced persons, 270 acres of this land was allotted to local persons. Dispute arose between departments of the Government whether in the circumstances land was resumed land under MLR-64 or it was State land having reverted to the State on termination of lease in consequence of surrender. Dispute was resolved by the West Pakistan Land Commission on 15-6-1970 by approval of sale of 270 acres in favour of displaced persons at the rate of 20 per P.I. Unit. After dissolution of Province of West Pakistan, the Chief Land Commissioner, Sindh regularised sale of 270 acres in favour of displaced persons and such order was issued by the Assistant Land Commissioner, Kandhkot on 11-9-1971. No order was passed with regard to 237 acres in respect of which respondents Nos.3 to 18 herein also claimed allotment as local persons. After exchange of correspondence between various departments, finally Chief Land Commissioner, Sindh, vide order, dated 30-3-1982 regularised sale of 237 acres in favour of appellants.
3. The order dated 30-3-1982 was challenged by respondents Nos.3 to 18 in Constitutional Petition No,41 of 1982 which was allowed vide judgment dated 8-3-1983 by Bench at Sukkur of the High Court of Sindh remanding the case to the Deputy Land Commissioner, Jacobabad with direction to hear all the parties and to determine their entitlement in accordance with law. In compliance with the order of the High Court, Deputy Land Commissioner, Jacobabad held that disputed land of 237 acres is resumed land and directed for its disposal under Land Reforms Policy under Paragraph 18 of MLR-115 of 1972 to eligible persons. This order was challenged in the Constitutional petition from which the present appeal has arisen and the High Court vide impugned judgment has again remanded the case to the Deputy Land Commissioner, Jacobabad to determine entitlement under MLR-115 after hearing the parties within six months.
4. We have heard at length learned counsel for the parties. It was submitted before us on behalf of the appellants that High Court was not correct in holding that land in dispute had been surrendered under MLR-115. It was surrendered in the year 1964 under MLR-64 of 1959 and possession was also handed over to the appellants on 18-3-1967 of total area of 507 acres of State land. Sale of 237 acres, which is disputed land, was regularised subsequently .Vide order, dated 3- 3-1982 passed by the Chief Land Commissioner. It is further submitted on behalf of appellants that Abdur Rashid and others (respondents Nos.3 to 18) purchased some agricultural land from Raja Zaheer and others near the disputed land and then started making a claim on the disputed land and applied to the Chief Land Commissioner but without success. Claim of respondents Nos.3 to 11 as sitting tenants of disputed land is strongly denied. About the claim of Abdur Rashid that disputed land was leased out to Syed Aijaz Ali Shah, it is submitted that Syed Aijaz Ali Shah got temporary lease from 1960-61 by the Guddoo Barrage authorities but on resumption it was permanently granted to the appellants in 1967 and from that time they are in cultivating possession. In support of claim, appellants have filed a large number of documents, copies of which are included in the paper book.
5. It is open to the revenue authorities to decide a dispute as to whether a transaction falls within the mischief of Regulation 64 or not, for there is sanction of the authority of the Land Commission behind such decision. In support of this proposition reference can be made to the case of Nasir Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCM R 667.
6. Under Paragraph 19 of M.L.R 64 of 1959, it is provided that land resumed under Part-IV may be sold to tenants who are in cultivating possession and any such land not sold to such tenants may be offered for sale to such other persons on terms and conditions as considered suitable by the Commission. M.L.R. 64 was replaced by Paragraph 32 of M.L.R. 115 in 1972, providing that land vesting in Government under the repealed Regulation and not granted to any person before the repealing, shall be disposed of or utilized by the Government as mentioned in Part V.
7. Question on the subject mentioned above, is to be decided according to law in the light of case- law and in this context this Court has rendered three judgments which hold the field. In the case of Talib Din and others v. The Chief Land Commissioner and others PLD 1984 SC 453 it is held that cultivating tenants of State land surrendered by grantees under Land Reforms Regulation cannot be transferred ownership rights under sale agreement because such ownership rights vest in the Provincial Government and remain untouched and unaffected by Regulation. Possessory interest alone in such cases could be dealt with by the Land Commission.
8. In the case of Syed Wajid Ali Shah and another v. The Chairman, Federal Land Commission and others 1985 SCM R 370, relying upon ratio in the case of Talib Din (supra), it was held that authorities established under Regulation 1972, could not exercise any jurisdiction or authority over proprietary interest of Government and tenants/actual cultivators in possession would not be able to claim from Land Commission transfer to them of any share of such proprietary interest.
9. In the case of the Chief Land Commissioner Punjab, Lahore and another v. Ch. Atta Muhammad Bajwa and others 1991 SCM R 736 it was held that excess area surrendered by grantee located in Sindh continued to remain with the Government as owner and is not available under Paragraph 18 of MLR-115 for grant free of charge to the sitting tenants.
10. In the circumstances and for the facts and reasons mentioned above, there is no . Other alternative for us except to remand the case again to the Deputy Land Commissioner, Jacobabad (respondent No,2) for decision in the light of legal position enunciated in the case-law mentioned above. He is directed to decide within three months in respect of disputed land, entitlement of parties including intervenor, who has applied in this Court to be impleaded as a necessary party and for correction of his name from Khan Muhammad to Khair Muhammad. At the end of hearing judgment was reserved and opportunity was given to the parties for amicable settlement of dispute outside the Court but so far no intimation has been given about settlement although sufficient time has elapsed, which shows that settlement is not reached. In the result appeal is dismissed with no order as to costs with observation as above.