NOOR alias NOOR MUHAMMAD and others vs MANAGER OF HIS HIGHNESS, THE MIR OF KHAIRPUR and others

1. ' ABDUL KADIR SHAIKH, J.---Facts leading to this appeal by leave briefly stated are that appellants claim to have inherited land measuring 323 acres from their ancesstors in Taluka Khairpur in the former State of Khairpur. This land was compulsorily acquired by Khairpur Government in 1945 at the price of Rs,15 per acre. However, according to the appellants, although the land was acquired for a public purpose, it was used by His Highness the Mir of Khairpur as his personal property, and on the promulgation of M.L.R. 64, His Highness surrendered the land as excess land. It is further stated that despite the surrender the land was handed over to His Highness in his capacity as the Assistant Chief Game Warden, treating the land as Shirkargh. In this background appellants served notice under section 80 of the Code of Civil Procedure on the Provincial Government in which they challenged the legality of the acquisition of their land. It appears that appellant's case was supported by the Commissioner, Khairpur, and according to the appellants, some part of the land was restored to them. However, some years later, appellants were dispossessed from the land under the provisions of Sindh Public Property (Removal of Encroachments) Act, 1975. Appellants challenged these orders and on getting no relief, they filed a Writ Petition in the Sindh and Balochistan High Court, which was dismissed by the impugned judgment dated 15th October, 1978.

2. Leave to appeal was granted by this Court in order to appreciate the submission advanced on behalf of the appellants that the Tribunal and the Additional District Magistrate, Khairpur, who had dealt with the case had assumed that the land in dispute was public property and rejected the claim of the appellants by ignoring all the evidence which supported them, and the High Court also had erred in rejecting appellants' claim.

3. After having heard the learned counsel for the parties in the light of the record before us, we find that the factual assertions made by the appellants with regard to their claim to the land at various stages from the year 1945 were vehemently denied, and this was therefore, not a fit case for interference by the High Court in its Constitutional jurisdiction and the petition should have been rejected on this ground alone. Admittedly, appellants had served the statutory notice under section 80 of the Code on the Provincial Government and in the circumstances they should have pursued the relief, if any, by way of a Civil Suit rather than through the Constitutional means. We, therefore, find no merit in this appeal and it is accordingly dismissed with no order as to costs.