P L D 1966 W (PLP)

This is a ‑revision filed against an order, dated the 13th of April 1963, passed by the Land Commissioner, Khairpur, whereby he accepted the appeal filed by the respondents. There are 37 respondents. Khawaja Abdur Rahim, Advocate and Mr. Samunder Khan, Advocate represent all the respondents except Nos. 27, 29, 31, 35, 36 and

37. They were duly served but are absent in spite of service. They have been proceeded against ex parte. The facts of the case are that, on 28th November 1959, the respondents put in an application requesting for the recognition of their Mukhadimi rights in the entire area of Deh Kot Yaqoob Jagir, Taluka Rohri. This application was considered by the Assistant Land Commissioner (Deputy Collector) who, after examination of the relevant revenue record, rejected the request of the respondents in respect of certain survey numbers. The respondents went in appeal to the Deputy Land Commissioner and the appeal was accepted on 4th October 1960. Against these orders, the petitioner along with others, filed a review application. The Deputy Land Commissioner secured the sanction of the Land Commissioner and thereafter, on 23rd July 1,962, accepted the review. Aggrieved by these orders, the respondents went up in appeal to the Land Commissioner, Khairpur, who accepted it. Only the, petitioner has come up in revision. The case involved a number of intricate questions and, therefore, the Advocate‑General was requested to participate in the arguments. I have heard the learned Advocate‑General and the learned counsel for the petitioner and the respondents. The first question for determination is whether the area in dispute is land as defined in clause (5) of para. 2 of Martial Law Regulation No.

64. This definition was subsequently clarified by the Land Commission and they have laid down that only such lands as are not assessable to land revenue should not be considered to be included in the definition given above. Out of the survey numbers in dispute, 33 is shown as un‑assessed; 42 as incapable of cultivation and 37, 38 and 46 as hillocks. The learned counsel for the respondents has contended that all these survey numbers should be considered as land to which Martial Law Regulation No. 64 is not applicable. The criterion laid down by the Commission was for sites of towns and villages which were not assessable to land revenue. If a portion of land was not assessed or was not under cultivation, it could not be, considered to be not assessable. Under the clarification issued by the Land Commission all these survey numbers have to be considered as land. The next question for determination is as to which are the survey numbers in dispute in respect of which the Mukhadimi rights of the respondents have been established. It was stated by the learned counsel for the respondents that, so far as Survey Nos. 12 to 18, 20 to 26, 29, 39, 40, 41, 45 and 48 were concerned, they could not claim Mukhadimi rights as in column 11 of Form VI, the Railway Department was shown as the Khatedar in possession. As regards survey No. 19, the respondents are not shown as the Khatedars in possession, in column 11 of Form VI. There the entry is Samadh i.e., Hindu Shrine. The learned counsel for the respondents has, however, pointed out that, because the land is shown as Inami in column VI in Form VI, it should be assumed that it is jagir land and Mukhadimi rights of respondents have been established. I am afraid, I cannot accept this contention. Column No. 6 only shows the character of land.' This land is admittedly Inami i.e., jagir land but it is out of such land that the respondents have to establish their Mukhadimi rights on the basis of actual possession which must necessarily be reflected in columns 11 of Form VI. As the respondents were not shown in that column, they cannot claim Mukhadimi rights in respect of this survey number. Similar remarks would apply to survey numbers 27, 28, 30, 32, 33, 42, 34, 37, 38, 46 and

55. In respect of survey No. 47 which is not, however, mentioned in the orders passed by the Assistant Land Commissioner (Deputy Collector), the entry in column 11 is `hospital; and the name of the respondents in column 11 is not entered against this survey number. In respect of this survey number also, the respondents cannot claim Mukhadimi rights. I also find that, in respect of Surveys Nos. 1 and 2, the respondents have not been able to establish their claim. From 1950‑51 onwards, these survey, numbers have remained un cultivated and no name of any of the respondents was mentioned in column 11 of Form VI. It is well established that, when Martial Law Regulation No. 64 came into force, the respondents, were not in possession of these two survey numbers. Mukhadimi rights cannot, therefore, be granted to them in respect of these survey numbers either. In these circumstances, I order that, in respect of all the survey numbers mentioned above, the respondents shall not get any Mukhadimi rights. The orders of the learned Land Com missioner and the Deputy Land Commissioner shall be considered to have been modified to this extent. S. Q. Order accordingly.