SHER MUHAMMAD Versus MEMBER (RELIEF AND SETTLEMENT), BOARD OF REVENUE
1. AJMAL MIAN; CJ.‑‑This petition is directed against the order dated 9‑1‑198.0; passed by respondent 1 in purported exercise of review power, whereby, he set aside two orders, namely, the order dated 11‑7‑1978, passed by predecessor in office and order dated 30‑10‑1977, passed by the learned Additional Commissioner, Hyderabad, both in favour of the petitioner. The petitioner, being aggrieved by the above order, has filed the present petition.
2. The case has been called out several times since morning, but nobody has turned up for the private respondents 4 and 5. Notice for today's date of hearing was sent to the learned counsel for respondents 4 and 5 on 11‑12‑1988. We have, therefore, proceeded with the case at about 11‑45 a.m.
3. The brief facts leading to the filing of the above petition are that the Survey Nos.237 and 238, situated in deh Aqial, taluka Tando Bago, district Dadin, (herinafter referred to as the land) allotted by the Revenue Officer, Kotri Barrage, by order dated 14‑6‑1974, in favour of respondents 4 and 5. The petitioner, being aggrieved by the above order, filed an appeal, which was allowed by the Additional Commissioner, by his aforesaid order dated 30‑10‑1977. Against the above order, respondents 4 and 5, filed an appeal before the respondent 1, which was dismissed by the aforesaid order dated 11‑7‑1978. Thereafter, respondents 4 and 5, filed a review, which was upheld by respondent No.1. In support of the above petition, Mr. Naraindas, learned counsel for the petitioner, has vehemently urged that the conditions precedent for exercising the power of review under section 8 of the West Pakistan Board of Revenue Act, 1957 (hereinafter referred to as the Act) were not present in the instant case and, therefore, respondent 1 was not justified in setting aside the order of his predecessor and of the Additional Commissioner inasmuch as no fresh fact or document was discovered at the time of filing of the review petition.
4. We have gone through the three orders and we find that the learned Additional Commissioner has dilated upon the question of entitlement inter se between the petitioner and respondents 4 and 5 more in detail and has recorded the finding of fact on the basis of site inspection made by the Assistant Commissioner, Matli that the petitioner had been cultivating the land for about 30 years and that respondents 4 and 5 first time got the possession of the land in 1974 and cultivated the land for only two years. The above finding of fact was maintained by the learned Member Board of Revenue while dismissing respondents 4 & 5's appeal by the aforesaid order dated 11‑7‑1978. The respondent 1 without adverting to the question, in which year the entry in Khasra? e‑Gardawari in favour of respondents 4 & 5 was made, set aside the two orders. We are inclined to hold that in the absence of the conditions precedent for exercising the review power in terms of section 8 of the Act, the respondent 1 was not justified in setting aside the concurrent finding in favour of the petitioner without even referring to any alleged new fact or document which was not available when the above two orders were passed by the Additional Commissioner and by his predecessor. We would, therefore, allow the above petition and declare the impugned order as being without lawful authority and of no legal effect, but there will be no order as to costs.
5. M.Y.H./S‑477/K ??????????????????????????????????????????????????????????????????? Petition allowed.