MUHAMMAD HAYAT Versus NEBHAU

ORDER

This is a revision petition against the order of the Director, Guddu Barrage Project, Sukkur dated, 26‑12‑69 whereby he dismissed the appeal petition of the revisionist Muhammad Hayat.

2. Facts giving rise to this revision are that the disputed land viz. S. Nos. 306, 313 and 314 of deh Adilpur Taulua Ghotki were forfeited dire to default in payment of Land Revenue Assessment, under the fallow Rules in the year 1902‑03, from the Khata of one Abdul Hamid son of Masu Khan Darejo. Since then these S. Nos. became Nakabuli Nobatzabt land on the Khata of Government. Neither the original Ahatedar, deceased Abdul Hamid, nor his immediate successors‑in‑interest applied for the restoration of these S. Nos. In 1965 the petitioner applied for grant of this land. He was informed by the Colonization Officer that the land could not be granted to him at concessionary rate. The petitioner then applied for purchase of these S. Nos. at

Market rate. The Colonization officer Guddu, Barrage, by his order dated 21‑3‑1966, granted the disputed land to the petitioner at the market value of Rs. 1,000 per acre, without notice to the respondent or checking the Revenue Record.

3. At this stage the respondent is said to have come to know about the order of grant of the disputed land to the petitioner and he preferred an appeal to the Project Director Guddu, Barrage, Sukkur. The learned Project Director heard the respondent and his counsel on 8th November 1967, and remanded the case to the Colonization Officer, Guddu Barrage for hearing it afresh, making the respondent also a party. The Colonization Officer Guddu Barrage passed his order dated 23rd January 1968 whereby he cancelled the grant of the petitioner and granted the land in question to the respondent taking into consideration the facts that the respondent had P. K. M. right over the disputed land and that it was superior right.

4. The petitioner filed an appeal against that order and the Director, Guddu Barrage Project, Sukkur, passed the order on 12th June 1968, as under :?

"No reason has been given for condonation of delay which could be convincing. Dismissed being time‑barred by one month."

The petitioner filed revision before the Member (Jud. 11) Board of Revenue, West Pakistan, Lahore, and the learned Member was pleased to remand the case to the Director Guddu, Barrage Project, Sukkur for passing fresh order according to law after giving the party an opportunity of being heard. As a result of the above remand, the Project Director heard the petitioner and passed the impugned order.

4. I have heard the parties and their counsels at great length. I have seen the relevant record. Both the parties have submitted written arguments which are precisely as under :‑?

(i) ??????? The petitioner has mainly contended that the disputed land is fallow forfeited land of his ancestor, grand‑father, Abdul Hamid Khan Dharejo and that he is his (Abdul Hamid's) successor‑in‑interest and thus entitled to get this land in preference to any body else. That he could not apply for the grant/restoration of land earlier because there was Bundish on the disposal of land on permanent tenure till Guddu Barrage Project started functioning and that he has actually been granted This land by the Colonization Officer at the malkano rate of Rs. 1,000 per acre.

(ii) ?????? The petitioner has further cited cases in which the Colonization Officer, and the Director have allowed grant of forfeited lands. He has also quote) decisions by the former Member, Board of Revenue, West Pakistan which indicate that restoration of forfeited lands has taken place in favour of the original Khatedars, even against those who have previous Khasmokal rights.

(iii) ????? Finally, the petitioner's stand is that he could not take steps for the restoration of the disputed land because he war minor and because there was bandish on the permanent disposal of the land now commanded by the Guddu Barrage.

6. The arguments of the counsel of respondent are summarised as follows :‑

(i) ??????? That the disputed S. Nos. were the property of one Abdul Hamid son of Masu Khan Darejo but have been forfeited by Government due to non‑payment of revenue assessment in the year 1901‑02.

(ii) ?????? That subsequently this land was being granted to the respondent on eksalo tenure since many years.

(iii) ????? That Abdul Hamid Khan Dhareoj, had given statement in favour of the respondent in respect of disputed land and other S. Nos. purporting to say that these S. Nos. were sold by the deceased to Mulan Menhoun ; father of the respondent for Rs. 250 even before forfeiture by verbal transaction. This statement also indicated that the deceased Khatedar relinquished rights in favour of the respondent and his brothers who then succeeded Menhoun. The statement said that the Ex‑Khatedar had no objection if these S. Nos. were granted to the sons of the vendee either on permanent basic or on leases since he (vendee himself) had expired by that time.

(iv) ????? That according to provision of law as laid down, in Standing Order No. 10, Abdul Hamid Khan or his heirs were entitled to restoration within 20 years of forfeiture, before 1927. If the forfeiture would have been after 1927, then the limitation was 10 years. None of the successors in interest of deceased Abdul Hamid or even his other heirs took advantage of the law to apply for restoration of the disputed land by the stipulated period.

11 (v) ? That the petitioner's father did not agitate for the restoration. No other heir of Abdul Hamid has agitated for restoration.

(vi) ????? That the petitioner has lost his case before the lower Courts.

(vii) ???? That appeal before the Project Director was time‑barred and the petitioner has not explained the point with regard to this period of limitation.

7. After considering the arguments advanced by the learned counsel for the parties, I am satisfied that the question that squarely and mainly fall for determination in the present revision petition are :‑‑

(i) ??????? Whether the appeal before the learned lower Court was time‑barred and whether this issue has been explained satisfactorily before me even now to show that the appeal was in time or that the delay could be condoned.

(ii) ?????? Whether the case of the petitioner has merits to get remedy sought by him.

In the first place, it is clear from the revision petition as well as from the written arguments that the petitioner's side has not at all explained as to why his appeal before the Director, Guddu Barrage Project, Sukkur, was filed beyond the period of limitation. In these circumstances. I am in agreement with the lower Court that the appeal of the petitioner was time?barred.

Secondly, it is apparent from the record before me that the petitioner has even otherwise no case on merits. The disputed S. Nos. were forfeited to Government for failure to liquidate the outstanding Land Revenue assessment in the year 1901‑02. It thus became Government Nobatzabit land. The land was forfeited from the Khata of Mr. Abdul Hamid Dharejo. No body from the immediate successor‑in‑interest of deceased ex‑Khatedar Abdul Hamid Khan applied for the disputed land. Even the ex‑Khatedar himself did not apply for the restoration of the land during his life time. It means that the deceased as well as his other immediate heirs had no mind to have the disputed land restored within the prescribed period.

The respondent, on the other hand was taking up the land on Eksalo basis since long. He has, therefore, very strong previous Khasmokal right over the land and therefore the same cannot be ignored.

The point much agitated by the petitioner is that the land was actually granted to him on payment of malkano by the Colonization Officer, but it was subsequently cancelled. This argument has also no force because the land was sold to him without hearing the respondent who had by that time created very strong Y.K.M. right over the land. The petitioner has argued that statement dated 17‑4‑1929 given by the deceased Abdul Hamid Khan son of Masu Khan in favour of heirs of the Menhoun Khan before the Deputy Collector Rohri, to the effect that the declarent had sold the land to the father of the respondent before forfeiture by verbal transaction but he could not mutate the Khara and in the meanwhile the land was forfeited although is not to be relied upon much, yet it created piece of evidence in favour of the respondent that even otherwise he had some other right over the disputed land.

In the result, therefore, I agree with the concurrent findings of the lower Courts and reject the petitioner's revision.

Petition dismissed.