1989 PLP 4112 (MLD)

AJMAL MIAN, CJ.--This petition is directed against the orders dated 6 5-1979 passed by the respondent No.2 and dated 13-5-1978 passed by the respondent No.1. The brief facts as alleged in the petition are that inter alia 93 paisas in Survey No.238 of Deh Kharich Taluka Johi District Dadu was allotted to one Qassimuddin mentioned as Qaseemuddin in the Revenue record. It is the case of the petitioners that they have purchased the above interest of the allottee in the above survey number alongwith the some other land by a registered sale-deed dated 28-10-1968, in pursuance whereof mutation in the Revenue record was effected on 28-11-1973. It is also the case of the petitioners that respondent No.5 who was allottee of inter alia survey No.234 situated in the same Deh while filing a declaration under pra.7 of the M.L.R. 115 by mistake mentioned survey No.238 instead of 234 though he had given correct acreage i.e. 2 acre which were the acreage of survey No.234 and whereas the accreage of 238 was 9 acres and 26 ghuntas. It is the further case of the petitioners that respondent No.5 purported to surrender above survey No.238 as excess land instead of surrendering

234. The petitioners after coming to know filed an application on 3-4-1974 before the Revenue authorities but eventually Dy. Land Commissioner by his letter dated 3-5-1980 informed the petitioner that they should approach the Federal Land Commissioner which had resumed the above survey number upon its surrender by respondent No.5. Thereupon, the petitioners filed an appeal which was dismissed by respondent No.2 on the ground of limitation, against which the petitioner filed a revision which was also dismissed by respondent on 23-5-1978. The petitioners have, therefore, filed the present petition. In support of the above petition the learned counsel for the petitioners has vehemently contended that at no point of time the petitioners were served with any notice by the Federal Land commission about the above mistake and after discovering the same they approached the Land Revenue authorities and thereafter when they were told to approach the Federal Land Commission within 10 days from such intimation they filed the above aforesaid appeal. It has, therefore, been further contended that the respondents Nos.2 and 3 were not justified in dismissing the appeal and revision respectively. On the other hand, the learned counsel for the respondents Nos.6 & 7 has submitted that the petition suffers from lrsches inasmuch as the land was surrendered in 1973 whereas the petitioner filed appeal in 1978 i.e. after the expiry of five years and that in between the above survey No.238 was allotted to respondents Nos. 6 & 7 as landless haris under the scheme and they have been in possession since then and are settled on the land inasmuch as they have constructed their houses and are cultivating the land. He has further submitted that even otherwise the are alleged documents which have been filed by the petitioners are doubtful and probably they have been manipulated after the land was allotted to above respondents Nos. 6 and

7. We would not have exercised constitutional jurisdiction because of the above changed situation but one fact which has persuaded us to press into service constitutional jurisdiction is that at no point of time the petitioners were allowed to put up their case before any forum. If factually there was a mistake on the part of the respondent No.5 in mentioning survey No.238 instead of 234, the question would arise whether the petitioners as the purchasers can be deprived of the above survey number without being heard. It is true that there seems to be no plausible explanation given by the petitioners as to why they had not ascertained the actual position at the site during these long period of five years. In our view it will be just and proper to remand the case to respondent No.1 with the direction to examine the case on merits of the petition. However, it will be open to respondents Nos.6 & 7 to urge that the petitioners by their own conduct are estopped from claiming against the above respondents Nos.6 & 7 because of the development of the land and other improvements made by them. With the above observations the petition is disposed of with no order as to costs. H.B.T./A-572/K Order accordingly.