1986 PLP 1302 (MLD)

‑‑‑Art.199‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.163 & 164‑‑Where a party in revision petition was not impleaded as party in review of such revisonal finding, impugned order, held, would not be sustainable and could be set aside by High Court in' constitutional jurisdiction. Muhammad Ibrahim Memon for Petitioners. Khawaja Sharful Islam for Respondents. Date of hearing: 17th April, 1984. AJMAL MIAN, J.‑‑This petition is directed against the order, dated 31‑1‑1977, passed by respondent No.2.

2. The brief facts leading to the filing of the above petition are that late Rab Dino alleged brother of petitioner No.1 was allotted survey numbers 341, 343 and 437 of Deh Palki and survey numbers 433 to 437 of Deh Garho, Taluka Ghorabari, District Thattar in 1956‑57 (hereinafter referred to as the land). It further seems that respondent No.1 in the year, 1968 ws also allotted about 40 Acres of land from U.A. No.93‑D of Deh Khirsar Uttarwari, Taluka Ghorabari. It also seems that the respondent No.1 could not take over possession of the above allotted un‑assessed land on account of erosion of the river. After that the respondent No.1 made some application to the Revenue Officer, whereupon without any notice to late Rab Dino, the land from his name was cancelled and the same was allotted to respondent No.1 by an order, dated 26‑Q‑1969. Late Rab Dino being aggrieved by the above order filed an appeal which was allowed by the Additional Commissioner vide his order, dated 19‑12‑1972, whereby the allotment in favour of respondent No.1 in respect of the land was cancelled but at the same time it was held that late Rab Dino was also not entitled to the allotment being a big Zamindar. It was further ordered that the land would be disposed of in favour of the heirs in cultivating possession. The respondent No.1 being aggrieved by the above order filed a revision, which was dismissed by the Member Board of Revenue, Sind, by his order, dated 6‑6‑1975. After that the respondent No.1 filed a review, which was allowed by respondent No.2 i.e. another Member Board of Revenue by impugned order, dated 31‑1‑1977 without impleading late Rab Dino or his legal heirs as party to the review petition. The petitioner being aggrieved by the above order have filed the present petition. It may be observed that petitioner No.1 claims to be the only legal heir of late Rab Dino being the real brother and the petitioners Nos.2 to 4 have alleged that they are haris in cultivating possession of the land.

3. In support of the above petition Mr. M. I. Memon," the learned counsel for the petitioners, inter alia has urged that since late Rab Dino was a party to the revision filed by respondent No.1, he or his legal heirs after his death was a necessary party to the review petition and that the petitioners Nos.2 to 4 being Haris in cultivating possession were also entitled to be heard before the disposal of the review petition. On the other hand, Khawaja Sharful Islam learned counsel for respondent No.1 has contended that if late Rab Dino was aggrieved by the order of the Additional Commissioner or by the revisional order, dated 6‑6‑1975 he or his legal heirs should have filed proper proceedings against the above orders but late Rab Dino or his legal heirs was not necessary party to the review petition as it was already held by the Additional Commissioner as well as by the Member Board of Revenue that late Rab Dino was not entitled to the allotment of the land. He has also denied the factum that petitioners Nos.2 to 4 are factually haris in cultivating possession.

4. It will suffice to observe that late Rab Dino was party to th revision and as in the review the order passed in revision was sought to be reviewed late Rab Dino or his legal heirs was necessary party to the review petition. Late Rab Dino might be satisfied with the order of Additional Commissioner for ordering the transfer of land to haris in cultivating possession but it cannot be urged that he would have no grievance if the land was to be given to respondent No.1 in preference to late Rab Dino,‑who was also allottee of the land. It was also contended by Mr. Khawaja Sharful Islam that factually the petitioner No.1 is not the legal heir of Late Rab Dino. However, we have noticed that in the Counter‑affidavit there is no such express averment made. The respondent No.1, however, may contest this position before the Member Board of Revenue as we intend to remand the case.

5. Since late Rab Dino or his legal heir was not made a party to the review petition nor he or his legal heir was heard prior to the passing of the impugned order, the same cannot be sustained. We, therefore, allow the petition and declare the impugned order as being without lawful authority but we remand the case to the respondent No.2 with the direction to rehear the review petition and to dispose o the same in accordance with law‑ after hearing both the parties. There will be no order as to costs. A.A. Petition allowed