1990 PLP 790 (CLC)

Karam Ali Mughal for Respondents. Date of hearing: 14th March, 1989. SALEEM AKHTAR, J.‑‑The petitioners were granted 24 acres of land in equal shares out of U.A. No.285 of Dch Chanhccn Taluka Naushcroferoz in the year 1957 under Standing Order 10 of the Revenue Department, Government of Sindh. Under this order lands lying within 20 chains of villages were to be disposed of permanently subject .to the consent of the villagers and that cultivation of rice was prohibited. According to the petitioners all formalities for obtaining the consent of the villagers were completed, and thereafter, the petitioners were finally allotted 12 acres of land each. The petitioners paid instalments till the year 19'18 and Ijazatnama was granted. They developed the land by investing money and planted a garden of mangoes and lemon on a portion of the land and the rest was being cultivated. At the time when land was being sanctioned to the petitioners one Rajpar Muqeem a villager of village Mughal had riled an application before the Colonisation Officer objecting to the grant to the petitioners on the ground that the land was situated within 20 chains of village Mughal. He, however, withdrew his application. It is also alleged that Barrage Mukhtiarkar visited the site and no objection was raised by the villagers. The petitioners enjoyed the possession till 1974 when some persons encroached upon the land. The petitioners filed civil suit in the Court of Civil Judge Nausheroferoz which was decreed. It is alleged that respondent No.4 in collusion with the staff of Director Settlement surveyed the land and got prepared fictitious measurements and sketches where under the area of the petitioners land was seriously affected by overlapping although this sketch was contrary to that which was prepared by Barrage Mukhtiarkar. When the petitioners carne to know that this measurement has been sent to respondent No.3 they protested and sent a notice to the Director Settlement, Land Survey and Record requesting him to correct the measurement according to the sketch which the petitioners allege to have obtained from the authorities. The Director did not accede to the request of the petitioners and the same incorrect measurements were mentioned by the Colonization Officer, respondent No.3 in his record. The petitioners filed an appeal but did not succeed. They challenged that order by a Revision application before the respondent No.1 but failed. In 1977 the petitioners filed Civil Suits Nos.181/77 and 182/77 in the Court of Civil ,fudge Nawabshah and had also filed an application before the Martial Law Authorities. However, the suit was withdrawn and the dispute was referred to the respondent No.3 who passed the impugned order on 3‑6‑1979 holding that the land granted to the petitioners fell within 20 chains of the village Mughal except small strip on the northern side. The petitioners were granted only that strip of land on the northern side which is beyond ''0 chains of the village. The petitioners and respondent No.4 filed appeal against this order before the Additional Commissioner Sukkur, who remanded the case to Colonization Officer with the direction that he should physically verify as to whether survey Nos.963, 964, 965 granted to the petitioner N .1 and D‑911, 967 granted to the petitioner No.2 fall within 20 chains of village Mughal. 11c further directed that the area which falls within 20 chains of the said village is to be excluded from their grants. The petitioners riled a Revision application before the respondent No.l which was dismissed. The respondent No.4 has filed counter‑affidavit in which it has been alleged that the land granted to the petitioners falls within 20 chains of the sanctioned village which could not have been granted by the Revenue Authorities without the express consent of all the villagers residing in the village concerned. It has been stated that such consent was never given by the villagers of village Mughal and such finding has been given by the Revenue Commissioner in his order dated 26‑9‑1972. A copy of this order has also been filed. The village Mughal consists of 200 houses and under law the land falling within 20 chains of the village is to be utililised by the villagers alone and not by any outsider. It has been claimed that the land in dispute is part of the grant of respondent No.4 and has remained all along in his cultivating possession and finding to this effect, has been given in the aforestated order dated 26‑9‑1972. It hat been averred that the petitioners have no interest in this land as they have transferred it as far back in 1966. Mr. Z.U. Ahmad, the learned counsel has contended that the land was granted to the petitioners after complying with AT the formalities and consent of the villagers had also been obtained. Therefore, if any new policy is implemented, the petitioners' right will not be affected by it. Mr. Karam Ali Mughal the learned counsel for the respondent No.4 has contended that the petitioners at no stage had obtained the consent of the villagers and finding to this effect has been given in order dated 26‑9‑1972 which has not been challenged and remains effective till today. It is an admitted position that the land falls within 20 chains of village Mughal. It was, therefore, necessary that before any grant was made. the consent of the residents of the village should have been obtained. According to the petitioners such consent was obtained and only after complying with the conditions Ijazatnama was granted to them. However, in this regard the Revenue Commissioner Sindh by his order dated 26‑9‑1972 has observed as follows:‑ "The fact that some of the Survey Numbers which have been deleted from the name of Ijaz Hussain, Shah and Fayaz Hussain Shah were located within 20 chains is proved by the sketch placed on the file. This position has been admitted by the field staff also. Ijaz Hussain Shah and Fayaz Hussain Shah have not been able to prove the allegation that their opponents are in league with the Survey staff. The present possession admittedly is also with Ali Muhammad and Muhammad Sharif. The petition of appeal from Ijaz Hussain Shah and Fayaz Hussain Shah, therefore, merits no consideration and is rejected. It is an accepted policy that land within 20 chains of established village has not to be utilized for grant in this manner. The learned Colonization Officer, therefore, rightly deleted certain portions from the grant of Ijaz Hussain Shah and Fayaz Hussain Shah. Their appeal is, therefore, dismissed." The question arises that once the petitioners' claim had been dismissed how all the questions can be re‑agitated and why the Revenue Officer did not take note, of order dated 2<‑9‑1972. Be that as it may, by order dated 25‑10‑1979 the case has been remanded to ascertain the correct measurement and to find out whether the petitioners' land falls within 20 chains of village Mughal. It has also been ordered that the area which falls within 20 chains shall be excluded from the grant. This is an order of remand where the measurements about which the. petitioners had grievance shall be rechecked and all the parties will have opportunity to participate in it and raise their objections. The impugned order cannot be termed as illegal and passed without jurisdiction. In such circumstances in our view it would be just and proper that while the Colonization Officer, the respondent No.3, would be complying with the order of the Additional Commissioner by ascertaining the measurements he should also ascertain whether at the time when land was granted to the petitioners prior consent of the residents of village Mughal had been obtained. In case any area falls within 20 chains of the said village and no consent of the residents of the village had been obtained according to law the order passed by the Additional Commissioner for exclusion of the land from the petitioners' grant which falls within 20 chains of the village shall be maintained. With this observation, modification and direction to respondent No.3 the petition is dismissed with no order as to cost. M.Y.H./A‑665/K Case remanded.