' HAMID ALI MIRZA, J.---This civil appeal with leave of this Court is directed against the judgment dated 24-9-1997 in C.P. No,D-155 of 1996 (Lal Muhammad and another v. Province of Sindh and others) passed by learned Division Bench of the Sindh High Court Bench at Sukkur, whereby the said Constitutional petition was dismissed.
2. Brief facts of the case are that the appellants Lal Muhammad and Ghano made an application for grant of land Survey Nos.404, 405, 406, 407, 410, 990 and 992 of Deh Lainpurani, Taluka Kashmore on Harap rights which land was granted to them by Member (L and Utilization), Board of Revenue, Sindh, Hyderabad vide letter, dated 6-10-1992. The appellants paid all the instalments for the land granted to them and after having made full payment, T.O. Forms dated 18-1-1993 were issued in their favour by the Colonization Officer/respondent No,4 thereafter necessary mutations in the Revenue Record were made by Mukhtiarkar, Taluka Kashmore/respondent No,5 vide Entries Nos.171 and 172 dated 23-2-1993 in favour of the appellants. The respondents Abdullah and Khamiso moved an application before the Colonization Officer Guddu Barrage, Sukkur and got the land granted to the appellants cancelled vide his order, dated 2-7-1993 on the ground that the said land was Kabuli land of Abdullah, however Colonization Officer Guddu Barrage, Sukkur, vide order, dated 21-8-1993 recalled his earlier cancellation order on the ground that he was not empowered to cancel the grant as the land was granted by the learned Member (Land Utilization), Board of Revenue, Sindh. The respondent Abdullah filed an appeal before the Additional Commissioner, Larkana against the order dated 21-8-1993. Passed by Colonization Officer which appeal was allowed by Mr. Badruddin Ujjan, the then Additional Commissioner, Larkana thereby cancelled the grant of land to the appellants vide order, dated 22-3-1995 and allotted the same to the respondents Abdullah and Khamiso on the ground that though the land being Non-Kabuli Government land was granted to the appellants on Harap rights with retrospective effect i.e, from 1953-54 but the appellants to whom the land was granted were not even born at the relevant time and could not be termed to be Hari and therefore, they could not be in possession of the same, therefore, were not entitled to grant of land under Land Grant Policy. It was further observed by the Additional Commissioner that the respondents Abdullah and Khamiso being in possession of the land and Haris of the same were entitled to the grant of the disputed land. The appellants then preferred revision petition before the Member (Land Utilization), Board of Revenue Sindh which revision was dismissed on 11-1-1996. The appellants, thereafter, filed Suit. No,29 of 1995 in the Court of Senior Civil Judge, Kandhkot against the respondents Abdullah and Khamiso and Province of Sindh for restoration of the mutation entries in their favour but their plaint was rejected vide judgment dated 6-6-1995. The appellants, thereafter, filed Constitutional Petition No,D-155 of 1996 before the High Court of Sindh, Sukkur Bench, which petition was dismissed as per impugned judgment dated 23-9-1997, hence this appeal.
3. We have heard learned counsel for the parties and learned Additional Advocate-General for Government Functionaries at length and perused the record.
4. Learned counsel for the appellant has submitted that the private respondents initially contended that the land granted to the appellants was their Kabuli land therefore respondents got the grant of land cancelled on the said ground but subsequently it was found that the land in dispute was non-Kabuli Government land and then a new ground was raised that the appellants were not even born in 1954 therefore, could not be said to be Haris in possession, hence the grant of land was in contravention of the Land Grant Policy. He further submitted that the appellants paid the initial amount of the land and subsequently fully paid the balance amount consequently they were issued T.O. Forms, therefore, the land in question could not have been cancelled and furthermore that the respondents had not applied for the grant of land at the relevant time but applied for the cancellation of the land therefore, the land could not have been granted to the private respondents. Learned counsel for the private respondents submitted that admittedly the appellants were minor hence they were neither Haris nor could be in possession of land therefore, not eligible to the grant of land on Harap rights while the respondents being in possession of the land and Haris were rightly transferred the land. The learned Additional Advocate-General submitted that both the parties have not come with clean hands because the appellants were minor at the relevant time as well as the respondents had not applied for the grant of land and they Were not in possession but having taken the' possession by force could not be termed to be Haris of the said land, therefore, they were not entitled to the grant of land. Learned Additional Advocate-General submitted that in view of his submission all orders passed by Revenue Authorities be set aside so also of the High Court and land in dispute may be ordered to be disposed of afresh under the Land Grant Policy to the persons found to be eligible under the said scheme.
5. We find that both the parties have approached authorities for the grant of land with unclean hands and have practised fraud upon the Land Grant Authorities and misrepresented the facts with regard to their eligibility therefore, none of the parties could be allowed to take advantage of their wrong, fraud and misrepresentation therefore, all orders passed by Revenue, Authorities and judgment of the learned Division Bench of the Sindh High Court, Sukkur Bench are hereby set aside and this appeal is disposed of accordingly with direction to the Colonization Officer, Gaddu Berage, Sukkur to dispose of the land in dispute afresh in accordance with Land Grant Policy.