MUHAMMAD QASIM LASHARI, MEMBER (JUDICIAL).--- This is an appeal filed on 24.5.2002 against order dated 27.2.2001 passed by the then Commissioner Sukkur Division. The time prescribed u/S. 162(c) of the Sindh Land Revenue Act, 1967 for filing an appeal before the Board of Revenue is 90 days. Hence, the appeal is time-barred by 11 months and 24 days. The appellant has filed application under Section 5 of the Limitation Act, 1908 alongwith an affidavit for the condonation of delay.
2. Brief facts of the case are that Muzafar Hussain. Shah (respondent No. 1) filed an application before the then Deputy Commissioner Naushahroferoze for the cancellation of Sanads (allotments/grants) issued to Muhammad Ilyas Bhatti and others residents of Village A.I Ratto Bhatti, deh Dali, Taluka Bhiria, District Naushahroferoze issued - by the then Assistant Commissioner/Controller, Naushahroferoze under the Sindh Gothabad (Housing Scheme) Act, 1987 (hereinafter referred to as the Act, 1987). His contention was that the land bearing S. Nos. 743 and 744 of deh Dali, Taluka Bhiria, District Naushahroferoze (hereinafter to be referred as the disputed land) is his Qabuli (privately owned) land duly entered in the Record-of-Rights vide entry No. 403, dated 3.11.1996 in V.F. VII-B of deh Dali and it has been wrongly allotted to M/s. Muhammad ilyas and others, under Sindh Gothabad Scheme by issuing Sanads to the villagers which may be cancelled in, the interest of justice.
3. Though, the applicant did not mention the relevant provision of Law, yet from the contents of the application and prayer made therein, it is obvious that the aforesaid application made by Muzafar Hussain Shah was under Section 6 of the Act, 1987 which is reproduced as under:- "6. Notwithstanding the allotment of land or conferment of proprietary rights in respect thereof the District Officer (Revenue) may, after giving the allottee or grantee an opportunity of being heard, cancel the allotment or grant and resume the land if he is satisfied that the allottee or grantee has:-
(a) furnished wrong information for securing allotment or grant; or
(b) committed a breach of the conditions of the allotment or grant: Provided that before the land is resumed for breach of any conditions of the allotment or grant the allottee or grantee may be given reasonable time to rectify such breach."
4. The then Deputy Commissioner/Collector [Now District Officer (Revenue)] Naushahroferoze heard the parties and also got the matter inquired through his subordinate Revenue Officers. In this context, the Mukhtiar kar Gothabad vide his letter No. SGA/32 of 1999, dated 2.6.1999 (photostat copy produced before me) reported the facts to - the then Deputy Commissioner/Collector Naushahroferoze as under:- "The facts are' that S. No. 743/744 of deh Dali Taluka Bhiria has been utilizated under Sindh Gothabad Scheme and the Sanads were issued to the residents of village for residential purpose .
At the time of issuance of Sanads, the above S. Nos. Were Government land as is evident from the Gothabad record. After lapse of about 8 years, above named person appeared before Assistant Commissioner, Naushahroferoze claiming the said land stating that it has been granted by the Barrage Authority to his grant father. He produced 'A' Form before the A.C. Who passed order showing the proprietary right of applicant on the strength of 'A' Form issued by Barrage Department issued in year 1946.
As a rule of law, "A" form does not confer the tittle of the land in respect of any grantee. He, therefore, cannot claim the right of ownership unless T.O. Is issued by the C.0 Bairage Department.
5. The Mukthiarkar Naushahroferoze in pursuance of verbal orders of the then Deputy Commissioner/Collector Naushahroferoze verified the record of deh Dali as well as the papers available in the office of Gothabad to know the factual position regarding utilization of Qabuli land by issuance of Sanads under Gothabad scheme to various persons. He, vide his letter No. Sett/43 of 99, dated 10.9.1999 (photostat copy produced before me), made the following report to the then Deputy Commissioner/Collector Naushahroferoze:- "The following points/issues were kept in mind while verification of record etc:
(1) Whether the land bearing S. Nos. 743 and 744 of deh Dali is Kabuli land owned by applicant?
(2) Whether the Sanads issued to various persons under Gothabad Scheme, were issued from Kabuli land?
(3) Whether any action of acquisition of land, as required under relevant rules, was taken prior to issuance of the said Sanads?
(4) Whether the plea of the applicant that his Kabuli land has been utilized illegally, is correct or otherwise?
The above points were kept in mind while checking the relevant record, and it was found that the land bearing Nos. 743 and 744 of deh Dali is Kabuli land belonging to the applicant party. Hence the Sanads issued from Kabuli land are worth to be cancelled.
ThL,, is nothing on record that any action for acquirement of the said land was taken by the concerned authority, as such the legal rights of the applicant about ownership of land seem to be usurped by utilizing the area of the owners.
The plea of the applicant about ownership of the land in question stands proved from the entries made in the record-of-rights, as such the final point No. 4 is also replied in affirmative that his area was used illegally.
6. The then Assistant Commissioner, Naushahroferoze vide his letter No. JC of 1999, dated 3.12.1999 (photostat copy produced before me) made the following report to the then Deputy Commissioner Naushahroferoze:- "In continuation to this office letter No. Under reference (photostat copy enclosed) it is submitted that the undersigned has re-verified the actual facts from the relevant record called from the office of the Survey Superintendent Khairpur, Barrage Mukhtiar kar Naushahroferoze and Mukhtiar kar Bhiria and found that the disputed S. Nos. 743 and 744 of deh Dali Taluka Bhiria are the property of applicant party out of which an approximate area of 2-0 acres has been occupied by the inhabitants of village A.I Rato Bhatti. The land-owners after long discussion agreed to get compensation of area involved in village/under occupation of villagers but they claimed Rs.
1,00,000 one lac only be per acre which may be justified on the face of prevailing rates in deh but is beyond the paying capacity of villagers.
The opponent party i.e. Villagers have agreed to pay reasonable rate of area involved in their village and disclosed that at this stage they cannot vacate the said area as their shifting would cause them huge and irrepairable losses.
Keeping in view of the above facts it is submitted that the matter regarding compensation may be got resolved through mediator who could bring the parties to amicable settlement at the payment of compensation of disputed area keeping in view the paying capacity of villagers."
7. The learned Deputy Commissioner, Naushahroferoze during the proceedings asked the applicant to produce T.O. Form and furnish other documentary proof about the ownership of the disputed land but the applicant did not produce the copy of T.O.
Form. The learned Deputy Commissioner, Naushahroferoze did not accept the documents produced by the applicant viz. Entries in the record-ofrights, pass-book issued by the revenue functionary, etc. The learned Deputy Commissioner, Naushahroferoze relied on the version of the appellants (Muhammad Ilyas and others) who produced the Sanads issued to them under the Act, 1987 during the year 1989 and stated that their village exists in S. Nos. 712, 743 and 744, being Na-Qabuli Government land since their forefather since the year 1941 and they are residing in the said village spread over an area of 11-09 acres including "asaish" area and ditch for drainage water and that the applicant (Muzafar Hussain Shah) has got no claim over the said land and he had managed the forged documents and has put his claim after a long period at this belated stage. The learned Deputy Commissioner, Naushahroferoze held that the claim of the applicant about grant of disputed land from the Barrage Department stands disproved as he has not been able to produce T.O. Form issued by the concerned authority. The learned Deputy Commissioner disposed of the application vide his order dated 28.2.2000 which was endorsed to the parties vide No. 803, dated 4.3.2000. The concluding para. Of the said order dated 28.2.2000, is reproduced as under:- "Summing up the facts brought on record and the failure of the applicant to produce copy of T.O.
Form in support of his version that the land bearing S. Nos. 743/744 was barrage land and was granted to his elders, clearly show that the plea of the applicant stands shattered and I have come to the conclusion that the prayer of the opponents for maintenance of the area occupied for village site is reasonable and genuine. Hence the land bearing S. Nos. 712, 743 and 744 having total area 11-05 acres of deh Dali Taluka Bhiria are reserved for the village A.I Rato Bhatti already existing on site. With these observations, the matter stands decided."
8. Being aggrieved by the above order dated 28.2.2000 of the Deputy Commissioner, Naushahroferoze whereby he reserved an area of 11-05 acres from S. Nos. 712, 743 and 744 (disputed land) of deh Dali for village A.I Rato Bhatti, Muzaffar Hussain Shah filed Appeal I Jp. S-7-RC/2000 before the learned Commissioner, Sukitur Division (defunct) against Muhammad. Ilyas Bhatti, Wazir Bhatti, Darya Khan, Siddique and Deputy Commissioner, Naushahroferoze (respondents Nos. 1, 2, 3, 4 and 5 respectively). The learned Commissioner treated the appeal as an application for revision under Section 164 of the Sindh Land Revenue Act, 1967.
9. It is pertinent to point out that the order passed by the then Deputy Commissioner/Collector, Naushahroferoze was under the provisions of Act, 1987. The Act, 1987 has its own provision of appeal which is described under Section 9 of the Act and Sections 161 and 164 of the Sindh Land Revenue Act, 1967 (Appeal and Revision) have no applicant, whatsoever, in the mattes decided under the provisions of the Act, 1987. Section 9 of the Act, 1987 as amended vide Sindh Laws (Amendment)
Ordinance, 2001, is re-produced as under:- "9. (1) An appeal shall lie to the D.O. (Rev.) of the District from any order passed by any officer under this Act and to the Executive District Officer (Revenue) from the order passed by the District Officer (Revenue) not peing an appellate order of the District Officer (Revenue).
(2) Appeal under sub-section (1) shall be heard and disposed in the manner as may be prescribed."
10. Obviously, the matter before the then Commissioner was neither an appeal under Section 161 nor an application for revision under Section 164 of the Sindh Land Revenue Act, 1967, but it was an appeal under Section 9(1) of the Act, 1987.
11. The learned Commissioner, Sukkur Division (defunct) after hearing both the parties, disposed of the appeal/application vide his order dated 27.2.2001, the last two, concluding paragraphs, of the order, are reproduced as under:- "I have heard the parties and perused the record . The Deputy Commissioner, Naushahroferoze was asked to carry out the measurement of the village A.I Ratto Bhatti situated in S. Nos. 743 and 744 of deh Dali, who has reported that an area of 1-36 acres from S. Nos. 744 and 0-38 acres from S. No. 743 total area 2-34 acres is under the said village and that the petitioners have agreed that area coming under the village may be allowed to be utilized for easement of villagers of village A.I Ratto Bhatti.
12. Being dis-satisfied with the above order dated 27.2.2001 of the learned Commissioner, Muhammad Ilyas and 2 others filed the present appeal which is time-barred by 11 months and 24 days.
13. I have heard the parties at length. Mr. Saleem Raza, the learned counsel for the appellants submitted his written arguments dated 8.1.2003 and additional arguments on behalf of appellants stating that in the year 1946-47 Alim Shah was granted an area of 20-00 acres out of U.A. No. 429 vide A-Form No. 7241 but no sketch was prepared by any authority. He waa also granted S. Nos.
608, 347, 348, 609 and 630 total area 18-26 acres vide A-Form No. 7137. The contention of the learned counsel is that both these grants were "lease" and not on "harap basis". His further contentions are as under:-
(a) As regards the land granted vide A-Form No. 7137 Syed A.I Shah paid five instalments towards lease money upto 22.5.1956. The land was cancelled but through a fraud, the note of cancellation was defaced and a note was put that T.O. Form No. 78750 was issued on 9.9.1965.
(b) As regards the land granted vide A-Form No. 7241, Syed A.I Shah paid five instalments. The land was subsequently cancelled but the grant is shown fully paid on 10.5.1980. No T.O. Form is issued and therefore the grant is not Qabuli. According to basic entry No. 283, S. Nos. 743 and 744 are entered after wards in different handwriting and with different ink.
(c) The village A.I Ratoo Bhatti is established since 150 years and consist of more than 100 houses.
The villagers have been issued San,ads under the Gothabad Housing Scheme.
(d) That according to "A" Form produced by opponents the total amount with penal interest was paid of Rs.1,90,3.14 for 41.00 acres, whereas the amount of lease was fixed Rs.3,025/- for 27 acres only without penal interest. Area of 20 acres which was granted to the respondent out of U.A. No. 429 was not reduced but was actually increased from 20 acres to 34-03 acres, according to Ghat Wadh Form which the respondents produced. Therefore, the note on "A" Form which shows the land fully paid, is not authenticated and does not support the contention of other side that grant was fully paid. The respondents Nos. 1 to 3 have not produced any receipt which was paid for the remaining amount.
(e) The Revenue Officer/Assistant Revenue Officer was not competent to regrant the land after lapse of 30 years.
(f) According to Pass Book, the S. No. 744 is also mortgaged with Agricultural Development Bank of Pakistan, Naushahroferoze Branch by Jamil S/o Karmoo on 8.11.1984, and it shows that there is a number of the manipulations in the Revenue Record of the District, Naushahroferoze.
14, The contentions of the respondents Nos. 1 to 4 are that Syed Alim Shah was granted the land on full rate vide A-form Nos. 7241 and 7137 from Kharif 1946-47. The land granted vide A-form No. 7241 is as under.:-
(a) He was granted S.No. 613 (2-34 acres) and S. No. 614 (4-11 acres) at the rate of. Rs. 2,001 per acre per annum in five equated instalments. The total sale price was fixed Rs.1,425-00.
(b) He was granted an area of 20-00 acres from U,A. No. 429 at the rate of Rs.80-00 per acre per annum in five equated instalments. The total sale price was fixed Rs.1,600-00. The land was subsequently surveyed and S. Nos. 429 (16-29 acres) 739 (2-5 acres), 740 (7-00 acres), 741 (6-26 acres) 742 (2-19 acres), 743 (7-1 acres) 744 (3-1 acres) and 745 (5-31 acres) were formed out of the said U.A. No. 429.
15. The above grants were purportedly made under Section-B, Part-I Standing Order No. 10 of the standing orders of the Revenue Department. It is true that the grant made vide A-form No. 7241 was cancelled from Rabi 1948-49 under A.R.Os. Order No. 6175, dated 25.3.1950 but it was subsequently regranted under Assistant Revenue Officers (AROs) No. 665. Dated 15.5.1951. The year of regrant is disputed. The version of appellant is that it is 1981 whereas the version of the respondents Nos. 1 to 4 is that it is 1951. The confusion is that the figure "5" is also readible as "8". In the photostat copy of A- form No. 7241 produced by the appellant which differs from the copy of said A-form No. 7241 produced by respondents Nos. 1 to 4, the contention of the appellants is that the year of regrant is readible as 1981. The copy produced by the appellant is an unattested copy hence not admissible whereas the copy of A-Form No. 7241 produced by the respondents Nos. 1 to 4, is duly attested.
From the attested copy of A-Form produced by the respondents, it can be presumed that the land was regranted on 15.5.1951. Had it not been regranted in May, 1951, the then Barrage authorities would have not accepted the 5th and final instalment on 23.11.1951 and the land in those days would have not been alienated in the name of grantee (Syed Alim Shah). This being the position that the land was fully Apaid 23.11.1951, there was no question of issuance of T.O. Form because as held in SROR-1488 of 1969-70 (Jalal v. Sajjan) published at page No. 120 of the Sindh Revenue and Land Reforms decision published by the Sindh Land Commission (1980), the condition requiring issue of T.O. Form before the alienation was incorporated in the agreement form vide memo. No. 57- 67/1850-P-III, dated 5.9.1967 of the Government of West Pakistan, Land Utilization Department and therefore, alienation after payment of full price but before issue of T.O.
Form (prior to issue of Notification No. 5.9.1967) was not void. Under these circumstances, non- issuance of T.O. Form in respect of a land having been fully paid in the year 1951 and entered in Record-of-Rights vide first entry No. 184 cannot be formed a base to hold that the disputed land is not a Qabuli land unless it would have been proved beyond any shadow of doubt that the disputed land after its cancellation vide the then A.R.O's Order No. 6175, dated 25.3.1950 has never been regranted to Syed Alim Shah and that the entries in the A-Form No. 7241 respecting regrant and the entries in the Recordof-Rights in respect of disputed land in favour of Syed Alim Shah and his legal heirs and subsequent successors in interest including respondents Nos. 1, 2 and 3 are bogus and forged. Whenever it is proved that a glaring fraud has been played and a forgery in the Revenue Record in connivance of subordinate revenue functionaries has been committed, no one could prevent the Executive District Officer (Revenue) from exercising his suo motu revisional jurisdiction strictly as per law. There is another misunderstanding whether U.A. No. 429 had been surveyed or not. It is evident from the reports of the Survey Superintendent Khairpur vide his letter No. ZB/96 of 2003, dated 27.1.2003 and No. ZB. 133 of 2003, dated 8.2.2003 and the attested copies of the Ghat Wadh Form No. 37, that U.A. No. 429 was surveyed under the orders of the then Deputy Collector N'feroze vide No. 1207, dated 21.1.1952 and No. 2710, dated 16.1.1952. The not survey numbers (excluding Kharaba) formed out of the above U.A. No. 429 are S. No. 739 (2-5 acres), 740 (TO acres), 741 (6-26 acres) 742 (2-19 acres), 743 (7-1 acres) and 744 (3-1 acres). The Survey No. 745 (5-31 acres) and S. No. 429 (16-29 acres) are also formed out of the said U.A. No. 429 but these two survey numbers are shown under Kharabo'. It is thus obvious that U.A. No. 429 was surveyed and the disputed S. Nos. 743, 744 were formed out of U.A. No. 429 which were granted to Syed Alim Shah vide A-Form No. 7241 from Kharif 1946-47. The grant is said to have been fully paid on 23.11.1951. The land was mutated in V.F. VII, vide entry No. 284 (date is not shown). Syed A.I Shah died and Foti Khatabadal was made vide entry No. 6, dated 17.2.1987 of V.F. VII-A in the names of following legal heirs: (1)Asghar Shah (son) 0-25 paisa (2)Talib Shah (son) 0-25 paisa (3)Arif Hussain Shah (son) 0-25 paisa (4)Mst. Zainab Bibi (daughter) 0-121/2 paisa (5)Mst. Sughran Bibi (daughter) 0-121/2 paisa Total 1-00 rupee
18. The disputed land has changed the hands as is evident from entries No. 241, dated, 4.3.1987, No. 352, dated 4.3.1987 and entry No. 403, dated 3,11,1996 whereby it was purchased by the respondents Nos: 1 to 3. It had also been mortgaged with A,D.BP and subsequently returned vide entry No. 433, dated 8.11.1997 in V.F. VII-B. It would be seen that nobody right from the beginning (say the year 1946) till today, has formally challenged the original grant made in the year 1946 or has preferred any appeal or revision against any of the above-mentioned entries existing in Record-of-Rights. In so far as the present appeal is concerned it, as earlier discussed in paras. 9 and 10 ibid, is purportedly an appeal filed under Section 9 of the Act, 1987. The present matter before me is not that of the Record-of-Rights but it is purely against the order dated 27.2.2001 of the then Commissioner, Sukkur concerning the issuance of Sanads and reservation of certain area as 'asaish' under the Act, 1987.
19. The impugned order is dated 27.2.2001 whereas the present appeal is filed on 24.5.2002.
Excluding the 27th February, 2001, the day from which the period is to be reckoned as required in Section 12 of the Limitation Act, 1908, the period of filing of appeal is worked out as under:- February, 1991 01 day March, 1991 31 days April, 1991 30 days May, 1991 31 days June, 1991 30 days July, 1991 31 days August, 1991 31 days September, 1991 30 days October, 1991 31 days November, 1991 30 days December, 1991 31 days January, 1992 31 days February, 1992 28 days March, 1992 31 days April, 1992 30 days May, 1992 (upto 23rd)23 days Total 451 days
20. Excluding the period of 90 days for filing of appeal vide Section 162 of the Act, 1967, the nett delay in filing the appeal is worked out as 361 days (451-90 = 361). It is a settled Law that in the matter of condonation of delays in availing legal remedies, each days delay has to be explained satisfactorily. In his written arguments, the learned counsel for the appellant has given no plausible explanation for the delay. The short application filed by the learned Advocate for the appellants u/S. 5 of the Limitation Act is an stereotype, simply mentioning that the delay may be condoned on consideration of the facts and grounds mentioned in the accompanying affidavit and memo. Of appeal. A perusal of affidavit dated 4.5.2002 and memo. Of appeal reveals that no ground or explanation for delay is mentioned either in the affidavit or in the memo. Of appeal excepting:-
(a) In para. 3 of the affidavit it is mentioned that delay in filing appeal is neither intentional nor deliberate one.
(b) In para. 10 of rounds of memo. Of appeal, it is mentioned that the appellants due to some unavoidable circumstances could not file the appeal.
21. As laid down in Section 5 of the Limitation Act, 1908, an appeal or application for revision or review may be admitted after the period of limitation prescribed therefor when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. The learned Advocate for the appellant has not disclosed any reason for such an inordinate delay occurred in filing of the appeal and even has not made any attempt to satisfy this Court that he had sufficient cause for not preferring the appeal within the prescribed time, The delay cannot be condoned impliedly. In a case reported in 1980 SCM R 875, condonation of delay was refused where the petitioner was unable to satisfactorily explain the long delay of 105 days involved in the case, nor had he made any sufficient cause for condonation of delay. The case is analogous to the above citation and resultantly, there would be no other option for me but to dismiss the appeal under Section 3 of the Limitation Act, 1908.
22. Beside the hurdle of the limitation which the appellant has failed to get across, the present appeal is not maintainable for the following reasons:-
(i) As already explained in paras. 9 and 10 ibid, the Commissioner, Sukkur Division (defunct) had passed the impugned order (dated 27.2.2001) under Section 9(1) of the Act, 1987, which is a final order and no appeal or revision lies against the order before any forum including the Board of Revenue.
(ii) If the impugned order is treated as an order which has been passed under Section 164 of the Act, 1967, even then no appeal lies against that order because the order dated 27.2.2001 by the then Commissioner passed in revisional jurisdiction under Section 164, is not the original order as such no appeal lies against that order. Even, as laid down in clause (d) of Section 161 of the Act, 1967 when the order is passed by the Executive District Officer (Revenue), an appeal lies against that order only on a point of Jaw whereas in the present appeal no law point is involved or discussed. In a case reported in PLD 1987 Rev. 24, 28, appeal against an order passed under Section 164 was held not maintainable and was dismissed.
(iii) As regards the exercise of concurrent jurisdiction of the Board of Revenue under Section 164(1)
(4) read with Section 179 (commonly called as second revision) it is also barred on an application of the affected party owing to the embargo put by second proviso to sub-section (4) of Section 164 of the Act, 1967 which contemplates that any order passed in revision under this section shall not be called in question on an application of the party affected by such order.
23. For the above detailed reasons, the present appeal, being not maintainable before the Board of Revenue is dismissed with no order as to the costs.