' RANA BHAGWAN DAS, J.---Crucial question for determination in this petition is whether respondent No,1, i,e, learned Member, Board of Revenue, Sindh acted with lawful authority in the exercise of his revisional jurisdiction by disturbing concurrent findings of fact in relation to the grant of land recorded by Colonization Officer, Sukkur Barrage and the Additional Commissioner, Hyderabad Division and upholding the duplicate grant of land in favour of respondent No,2 after 18 years of the original grant in favour of the petitioner.
2. Facts in nutshell leading to this petition are that 16 acres of agricultural land from unassessed No,1 of Deh Lib, Taluka Sanghar was granted to Rano Khan, father of the petitioner on instalment basis in the year 1949-50 on account of his meritorious services. Possession of the land was transferred in favour of the grantee who made regular payments of instalments as well as land revenue to the Government proportionate to the area brought under cultivation. Grant was fully paid in 1959 with the result that a T.O. Form was issued in favour of the grantee and the nature of the land assumed the status of Qabooli land. However, inadvertently same piece of land with the description as Block No,40 alongwith other lands was granted to respondent No,2 in the year 1967 under the Military Settlement Scheme, who being the personnel of the Armed Forces, forcibly dispossessed the lawful owner of the land.
3. Petitioner, therefore, approached the Divisional Commissioner, Hyderabad, who took cognizance of the matter and by his order dated 20-7-1971 treating the subsequent grant in favour of the respondent as a duplicate grant cancelled the same. Being dissatisfied with this order, respondent moved a review application before the Commissioner and simultaneously filed a revision application before the Additional Member, Board of Revenue, Sindh. Initially hearing of review petition was deferred by the Divisional Commissioner in view of pendency of a revision application against his order before the Board of Revenue. Subsequently, however, the review petition was dismissed by late Agha Nooruallh, Additional Revenue Commissioner, Hyderabad by his order dated 4-3-1974 holding the grant in favour of respondent No,2 as a duplicate grant.
4. After the rejection of review petition, revision application before the Board of Revenue came up for hearing, which by an order of Additional Member, Board of Revenue, dated 19-7-1975 was remanded to the Colonization Officer, Sukkur Barrage for a fresh decision on the following points:
(a) The reports of the Barrage Mukhtiarkar treating the grant of petitioner as duplicate one are conflicting and he has not based his report on documentary evidence. A thorough enquiry should be made in the matter.
(b) Whether Block No,40 was in existence in the year 1949-50 when an area of 16 acres was granted to the father of the respondent out of unassessed No,1? If not whether proper location was stated in the sketch, attached or prepared at the time of grant made in favour of the respondent in the year 1949-50.
5. After the remand, Colonization Officer, Sukkur Barrage sent for the revenue record, summoned the concerned Tapedar of the beat i,e, Muhammad Moosa who produced before him the extracts from the Field Book with effect from 1949-50, entries from Village Form 8-A and 8-B and testified that the land in dispute after the grant in favour of Rano Khan had remained in his cultivating possession till 1967 when it was granted in favour of respondent No,2. By his order dated 26-5-1985 Colonization Officer observed that since Rano Khan was in cultivating possession of the disputed land, it was illegal to grant the same piece of land to the respondent No,2. He held that this was a clear case of duplicate grant which was fully paid up in 1959. Referring to the report of the Taluka Mukhtiarkar that Block No,40 is from the piece of land granted to Rano Khan which had remained in his possession prior to the grant in favour of Lt.-Col. Attaullah, he made a pertinent observation that according to the instructions of the Government, the land in cultivating possession of the locals/lessees, cannot be disturbed or granted to defence personnel. He, therefore, maintained the grant in favour of the original grantee allowing the respondent No,2 to avail of equal area in lieu thereof.
6. Respondent No,2 impugned this order in appeal before the Additional Commissioner, Hyderabad Division who by his order dated 16-3-1987 held that after the grant, father of the petitioner remained in cultivating possession thereof, developed the land by spending a huge amount on its improvement when his cultivating possession was disturbed in 1967 and granted to the respondent at a time when the land in dispute was not available for grant. Consequently he dismissed the appeal.
7. Aggrieved by this order, respondent No,2 filed a revision petition before the respondent No,1, who by his order dated 29-8-1988 upset the concurrent findings recorded by the Colonization Officer, Sukkur Barrage and the Additional Commissioner, Hyderabad and restored the grant of land in favour of respondent No,2 by his order dated 29-8-1988 which has been impugned in this petition as perverse, not sustainable at law and passed without lawful authority.
8. When this petition came up for regular hearing before a Bench of this Court in May, 1992, learned Assistant Advocate-General placed on record a statement that the Government of Sindh in Land Utilization Department had decided not to defend the petition at public expenses as the main litigation is between two private parties. On subsequent hearing, the petition was finally heard by another Bench but the judgment could not be delivered for unavoidable reasons. In the circumstances there was no occasion for parawise comments on behalf of respondent No,1 whereas a counter-affidavit to injunction application was filed by respondent No,2 after more than two years of the decision of the said application.
9. We have heard learned counsel for the parties at quite some length and examined the material on record. We have also heard the Colonization Officer, Sukkur Barrage and the Settlement Survey and Land Records Officer who were summoned in pursuance of an order made by a Bench of this Court on 10-1-1995. Learned counsel for the petitioner raised the following contentions:--
(a) That the respondent No,1 acted without lawful authority and in complete disregard of the settled principles of law by interfering with the concurrent findings of the two lower forums holding that this was a case of duplicate grant.
(b) That the learned Member, Board of Revenue acted arbitrarily and at his whims by holding that the piece of land granted in favour of the respondent was different from the disputed land granted to the petitioner.
(C) That after full payment of the grant installments, petitioner acquired the rights of ownership under the Colonization of Government Lands Act, 1912 and without the cancellation of grant in his favour, grant of land in favour of the respondent is void and illegal.
(d) That there is no warrant in law for a finding that the appeal of the petitioner before the Commissioner, Hyderabad was barred by limitation as prescribed in section 162 of the Land Revenue Act particularly when this question was never raised before the said authority.
10. On his part learned counsel for the respondent supported the impugned order on facts as well as law and contended that the order is just, prior, legal, within jurisdiction and based on proper appreciation of facts and law.
11. Adverting to the first two contentions raised on behalf of the petitioner, we find that the Colonization Officer as well as Additional Commissioner, Hyderabad Division in their respective orders have recorded findings on fact that the disputed land consisting of 16 acres from unassessed No,1 was initially granted to the predecessor-in-interest of petitioner on full rate Malkana. It is not disputed that the original grantee paid usual instalments towards the price of the land and paid land revenue assessment according to Bigoti system proportionate to the area brought under cultivation and remained in undisturbed cultivating possession of the land in dispute throughout till his possession was disturbed in 1967 when the same land was granted in favour of the respondent. Unfortunately order dated 20-7-1971 passed on the miscellaneous application of the petitioner by Commissioner, Hyderabad Division has not been placed on record, therefore, we are not in a position to refer the said order. From the various orders placed on record and copies of extracts from Field Book of Deb Lib and Deb Forms 8-A and 8-B for the year 1949-50 onwards (which were also produced by the Revenue Tapedar before the Colonization Officer at the time of recording his stateinent on 25-7-1978) cultivating possession and enjoyment of the produce by the original grantee is conclusively established and this position has not been controverted. It is also evident that the record of rights was mutated in favour of the father of the petitioner after the grant in his favour.
12. In the impugned order learned Member, Board of Revenue was impressed by the circumstance that Block No,40 of Deh Lib was in existence in the year 1949-50 as reported by the Land Records Officer who further reported that Block survey was conducted in the year 1945. He, therefore, concluded that the land granted to Rano Khan was out of unsurveyed area at a time when Block No,440 had already been surveyed which could not be formed out of the area granted to Rano Khan as contended on his behalf. It is common ground that unsurveyed State land was surveyed on Block survey pattern in the year 1945 but the learned Member, Board of Revenue ignored the observation of the Colonization Office, Sukkur Barrage in his order dated 26-5-1985 that no doubt unassessed number was measured by Survey and Settlement Department in 1945 but such record was not sent to the Barrage Department and for this reason even the respondent himself paid land revenue of the disputed piece of land as Bigoti land in 1973-74. In our view this circumstance clearly suggests that it was on account o1 this lapse and inadvertence on the part of Settlement and Survey Department that the Barrage Authorities bona fide treated and considered that area as unassessed number for want of requisite information whereas same piece of land having been surveyed as Block No,40 was wrongly and inadvertently granted in favour of the respondent under the Military Settlement Scheme. Likewise there is hardly any material on record to support the finding that the piece of land granted to the respondent is different from the land granted to the petitioner. On the basis of Deh map produced before the respondent No,1, he appears to have held that the Block No,40 and unassessed No,1 are quite different from each other which finding cannot be sustained in law in view of the opinion framed by the Colonization Officer as well as Additional Commissioner, Hyderabad. In case the respondent No,1 desired to upset the concurrent findings of fact that this was a case of duplicate grant, he ought to have held independent inquiries through the officials at the site. In case we accept the factual position taken by the respondent No,1, it is bound to result in multifarious complications for the petitioner. Moreover, if the two pieces of lands are situated pole apart there would be no question of dispossessing the petitioner's father or occasion for dispute between the parties for the last 30 years. View expressed by the respondent No,1, in our opinion cannot be sustained in law which is erroneous factually incorrect on the face of it and not supported by the record. At any rate respondent No,1 in the exercise of his revisional jurisdiction could not take into account entirely a new fact without notice to the parties.
13. There is considerable force in the submission of the petitioner that by virtue of section 15 of the Colonization of Government Lands Act on full payment of the instalments for the grant, he acquired absolute ownership thereof and the grant in his favour became Qabooli land which could not have been lawfully resumed by the land grant authorities. We are fortified in this view by a Division Bench decision in Muhammad Ishaq v. Dr. Saiduddin Swaleh -(PLD 1960 Karachi 48). Late Qadeeruddin Ahmed, J. (as he then was) speaking for the Bench at page 54 of the report observed as under: "If during the subsistence of one allotment order another allotment order is issued then it is merely provisional and must remain floating in the air to settle down in the place of the former allotment when the former allottee is ejected. Its concurrent existence would not invalidate the former allotment order and therefore the former allottees need not have appealed against the second allotment order."
14. There is no denial of the fact that the petitioner's father had fully paid up the grant which is also borne out by the entries in the Revenue Record and the orders passed by Colonization Officer as well as Additional Commissioner, Hyderabad. It is settled position in law that after the land acquired, the status of Qabooli land, land grant authorities became functus officio and could not deal with transfer or grant of such land. At any rate without the cancellation of grant in favour of the petitioner, disputed land could not be lawfully granted in favour of the respondent which on the face of it, is illegal and void.
15. Dealing with the last contention raised on behalf of the petitioner, we find that the proceedings before the Commissioner, Hyderabad Division at the instance of the petitioner were neither barred by limitation nor is there adequate material on record to support the view taken by the respondent No,l. As observed hereinabove, none of the parties carded to place on record a copy of the order dated 20-7-1971 passed by the Divisional Commissioner, Hayderabad, However, perusal of the impugned order tends to create an impression that assuming the date of the alleged dispossession of the petitioner as 28-8-1968 and the date of application as 28-12-1968 (which dates could not be deemed to be accepted as above, even by the learned respondent No,1), the conclusion drawn in the circumstances is neither justified nor supported by the principles of law.
This question having not been agitated before the Commissioner, it was neither just nor proper for the revisional authority to raise this mixed question of law and fact. Alternatively, it may be fairly assumed that the Commissioner in view of the grant in favour of the respondent being void had impliedly condoned the delay if at all any. Lastly it may be pertinent to observe that the order of grant of land in favour of respondent No,2 being void ab intitio and the act of grant being a fraud on statute period of limitation would hardly be attracted in such cases as held in Khuda Buz v.
Khushi Muhammad and others PLD 1976 SC 208 and Muhammad Shafi v. Mushtaque Ahmed 1996 SCMR 856. On his part learned counsel for the respondent relied upon Manzoor Hussain v. Sajawal 1983 SCMR 465, Nanki v. Member (Revenue), Board of Revenue 1988 SCMR 168 and United Bank Limited v. S.G. Rauf PLD 1990 Karachi 312 which are completely irrelevant.
16. In Manzoor Hussain's case extension of time was sought on ground that clerk of counsel could not collect copy of High Court judgment for lack of intimation about the date of preparation but it was declined.
' In 1988 SCMR 168, suit for declaration filed by the petitioner in 1982 after repeal of evacuee laws in 1974 was dismissed and decree passed by Civil Court attained finality. Subsequent proceedings before revisional authority and in writ jurisdiction had also failed. Since the petitioner did not proceed against the order before the revisional authorities but instituted a suit after a long time petition was dismissed on merits, as well as barred by time.
' In United Bank Limited's case, application for leave to defend was not accompanied by application for condonation of delay. Learned Single Judge of this Court expressed the view that there was no question of condoning the delay without an application under section 5, Limitation Act. Suffice to say all these cases are completely distinguishable on facts and do not take the respondent's case any further. These cases are thus of no assistance to the respondent.
17. Before parting with this judgment, it may he observed that the Colonization Officer, Sukkur Barrage and Settlement Survey and Land Records Officer present in Court on Court notice, with the assistance of the relevant record available with them made a candid statement in open Court that the land in dispute is one and the same and not different as wrongly observed by learned respondent No, 1 .
18. In view of the aforesaid facts and circumstances, we are of the considered view that the impugned order suffers from inherent legal flaws which cannot be sustained at law and is declared to have been passed without lawful authority. Consequently this petition is allowed and the orders passed in favour of the petitioner by the Colonization Officer and Additional Commissioner, Hyderabad restored with all consequential benefits to the petitioner. In the circumstances, parties are left to bear their own costs.