2002 PLP 2615 (YLR)

(i) Recover:‑‑ (a) the full price when the installments are not ordered. (b) The value of trees, if any, and credit the amount in the treasury. (ii) Issue intimation of the grant in the Tear‑off Form (specimen attached) and send two counterfoils of the form to the, Taluka Mukhtiarkar, with the particulars of the S. Nos. in question, their areas, and the date (for the season or the year) from which the possession of the land is allowed. On receipt of these counterfoils the Taluka Mukhtiarkar will pass them on to the tapedar. The tapedar will enter the details of the grant in question for the recovery of malkano in case the area is more and for adjustment or refund, if the area is less. (iii) Get on agreement executed by the purchase in the prescribed form. (iv) Issue an Ijazatnama"

19. The paragraph No.3 of section B, Part I of Standing Order No. 10 is also re produced as under:‑‑ "

3. When the grants are fully paid, the Bandash is removed, and intimation in the Tear‑off Forms is issued by the Barrage Mukhtiarkar and sent to the Taluka Mukhtiarkar through the Revenue Officer. The Accounts Branch of the Revenue Officer after verification with the Forms certifies that the grant is fully paid including the cost of trees and transmits two counterfoils to Taluka Mukhtiarkar. The Accounts Branch takes care to see that no serial number is missing and if any number is missing it is called for from the Barrage Mukhtiarkar. In case of lands disposed of form un assessed S. Nos. bhadas, etc. no T.O. Form is to be issued till the land is measured and difference of malkano if any recovery from the grantee."

20. The T. O. Form is issued in the form which has been prescribed by the Government under an Administrative Letter No.443/F/50, dated the 6th January, 1951. The specimen of T.O. form is attached at the end of section‑B, Part I of Standing Order No. 10 and it is reproduced as under:‑‑ S. No. Date Month Year S. No. Date Month Year Intimation about removal of restriction after the grant is fully paid up Intimation about removal of restriction after the grant is fully paid up Tapedar Revenue Officer Return this counterfoil after entry Form A From A Name of Deh. Block No. Name of Deh. Block No. Area grantee Area grantee Mukhtiarkar Barrage Mukhtiarkar Outward No. Date Month Year 195 Mukhtiarkar Entry No. Form VII Mukhtiarkar Intimation is sent after verification for entry Entry No. in Form VII. For Revenue Officer Barrage Return after entry Date Tapedar Tapedar

21. It would thus be seen that T.O. Form is nothing but an intimation from Barrage Mukhtiarkar (now Mukhtiarkar Estate) to Taluka Mukhtiarkar (now re -designated as Mukhtiarkar Revenue) about removal of restriction after the grant is fully paid. It is neither a 'Transfer order' not a "title deed". Therefore, a mere issuance of T.O. Form will not confer any proprietary rights upon a tenant until he, as laid down in section 15 of the Act, 1912, fulfills the other conditions set forth in the statement of conditions of sale issued by the Collector (Now District Officer Revenue) and such other conditions mentioned in the Act, 1912.

22. After the grant is fully paid and T.O. Form is issued, the purchaser has to execute an agreement described in clause (iii), para.2, section B, Part I of Standing Order 10 (if the T.O. Form had been issued before 4‑12‑1989) or conveyance deed duly stamped and duly registered as envisaged in condition No.30 of the statement of conditions notified vide No.SB‑III/1‑279/P/1704/89, dated 4‑12‑1989 (if the T.O. Form had been issued on or after 4‑12‑1989). An entry in V.F. VII‑B of the aforesaid purchaser is to be based on the agreement/conveyance deed. If such an agreement conveyance deed which is one of the condition of the grant is not executed, then there will be no transfer of land within the meaning of sections 11 and 15 of the Act, 1912 read with section 3 of the Government Grants Act, 1895. It has been held in PLD 1987 Supreme Court 123, that both the sections 11 and 15 of the Act, 1912 are applicable to grant and by reason of section 3 of the Government Grant Act, 1895, which by reference, is in‑corporation in section 11 of the Act, 1912, the terms and conditions of the grant itself pre eminently would prevail so as to give them an overriding effect.

23. As mentioned in section 15 of the Act 1912, a purchaser from Government who has been placed in possession of the land by order of the District Officer Revenue (defunct Collector) shall be deemed to be a tenant of such land until:‑‑ (i) the fun amount of the purchase money with any interest due thereon has been paid, and; (ii) the other conditions set forth in the statement of the conditions of sale issued, by the District Officer Revenue (defunct Collector) have been fulfilled.

24. Obviously, payment of full amount of purchase money with any interest due thereon alone is not sufficient to oust out a purchaser from the sphere of 'Tenant' unless he fulfills all the conditions set forth in the statement of the conditions of sale either, issued by the Distinct Officer Revenue (defunct Collector) or contained in the Act 1912 or in any notification or circular concerning the subject‑matter issued under the said Act. Reliance is placed on PLD 1967 Lahore

52. It is clearly laid down in section 3 of the Government Grant Act, 1895 that all provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule, of law, statement or enactment of the Legislature to the contrary notwithstanding.

25. As reported by the Revenue Tapedar of the beat, Muhammad Ramzan (appellant No. 1) has never been in possession of lane bearing Chaukri/Field Survey Nos.855 and 856 (8 Acres) which seems to be a duplicate' grant. Similarly, Khushi Muhammad (appellant No.2) has also never been in possession of land bearing Chaukri/Field Survey Nos.825 and 826 (8 Acres) which too seems to be a duplicate grant. Section 10(4) of the Act, 1912 envisages that allottee or a purchaser of State land would attain status of tenant, only after he had been placed in possession of land by an order or with the permission of the District Officer Revenue (defunct Collector). Reliance is also placed on 1992 MLD 37 (Lahore). As such, both the appellants are to deemed tenants of the aforesaid Chaukri/Field Survey Nos.855, 856, 825 and 826 and have no right or title on the said land as envisaged in subsection (4) of section 10 of the Act, 1912.

26. Beside other conditions, the appellants had also not fulfilled the important condition No.8 laid down in the grant of land to the peasant in the Ghulam Muhammad, Barrage Area Rules notified vide No. Col- 7/113‑9‑7, dated 12‑3‑1959 in respect of land which is said to be the duplicate grants which required them to cultivate the land personally for 20 years. In a case reported in 1998 SCMR 468, the Honourable Supreme Court of Pakistan refused to grant leave to appeal when the petitioners filed to cultivate land in accordance with terms and conditions of their allotment. As regards the effect of entry in mutation register, there is a plethora of rulings that entries in the mutation record are fiscal in nature, and do not conclusively establish ownership in favour of person in whose name such entries have been made and provide merely a rebuttal material. It has also been held that mutation entries are made only for correcting the entries in the Revenue Record to facilitate the recovery of land revenue. Entries in mutation register and other Revenue Records are not in the nature of title deeds, but only have evidentiary value in support of title. Reliance is placed on 1993 SCMR 618, PLC 1993 SC (AJ&K) 24, 1992 SCMR 1832, 1986 SCMR 598, etc.

28. Suffice to say, If all the terms and conditions of sale are not fulfilled, and agreement or conveyance deed conferring full Ownership rights on the grantee is not executed, as is the case of present appellants neither the fell, payment of price of land and the issuance of a T.O. Form nor entry in the mutation register (V.F. VII‑B) would confer upon the grantees, the proprietary rights.

29. The next pivotal point to ponder which has emerged as germane to the subject -matter is whether a tenant who has acquired proprietary rights in any land, shall in respect of such land cease to be subject to statement of conditions issued under the Act, 1912, so as to bar the jurisdiction of the Revenue Courts/Authorities to rectify any fraud, forgery or mistake advertently or inadvertently committed by any subordinate Revenue Officer and correct the Record accordingly. The answer to this question is available in section 30 of the Act, 1912 which contemplates that notwithstanding anything entered in any statement of conditions under the Government Tenants (Punjab) Act, 1893, a tenant, who either in pursuance of any such condition or otherwise by agreement with, or under rules issued by the Provincial Government has acquired proprietary right in any land included in his tenancy shall in respect of such land cease to be subject to any statement of conditions issued under above mentioned Act. In Sindh, this section 30 of the Act, 1912 has been omitted vide Sindh Repealing and Amending Act, 1975. Hence purchaser, irrespective of the fact that he ceases to be a Tenant within the meaning of section 15 of the Act, 1912; will still remain subject to the statement of conditions as has been provided in section 3 of the Government Grants Act. 1895. Reliance is also placed on PLD 1987 SC 123, wherein it has been held that Collector (Now District Officer Revenue) is empowered to cancel the sale and resume property after conferment of proprietary right in case of breach of any of conditions of grant itself.

30. In view of above, there will be no legal bar or any embargo to cancel or modify a grant in which the terns and conditions of the grant are not fulfilled. In the instant case, there are several conditions of the grant, hereinbefore discussed, which are not fulfilled. Consequently, there is no legal hitch or any hesitation to cancel or modify such grants.

31. The learned counsel for the appellants has raised the question of limitation. According to him the appeal before the learned Additional Commissioner‑II, Hyderabad was time‑barred by more than 30 years from the date of grant and 6 years from tote issue of T.O. Form/Mutation in the Record‑of‑Rights but he passed the impugned order without deciding the limitation.

32. The learned Additional Commissioner‑II, Hyderabad in para. 6 of his order (impugned order) has dealt with the above points in the following manner:‑‑ "Mr. Bhimraj, Advocate for the respondent mostly argued on technical points viz. Limitation, change of status of Land as Qabooli after issuance of T.O. Form and other things. I entirely agree with him on technical points but the problem will not be solved as the same land cannot be left entered in the name of two persons: Admittedly, the appellant is first grantee and as such the land granted to him in shape of B. Nos. could not be granted, subsequently to respondents in shape of survey members."

33. It is true that under section 3 of the Limitation Act, 1908 it is the bounden duty of the Court not to proceed with an appeal or a revision petition etc. if it is made beyond the period of Limitation prescribed. This section is designed to discourage the pursuit of claims which have become stale by efflux of time. It is also well‑settled that limitation cannot be impliedly condoned. As laid down in section 162 of the Act, 1967, the period of limitation for an appeal starts from the date of order whereas in the case before the learned Additional Commissioner‑II, Hyderabad there was no existence of any order (said to be the revised sanction order of the Revenue Officer Kotri Barrage in favour of appellants impugned in the appeal). Therefore, there was no question of limitation before the Learned Additional Commissioner‑II, Hyderabad. In fact, he should have returned or dismissed the appeal for want of copy of the impugned order as stipulated in rule 3 of Order 41 of the Civil Procedure Code.

34. In view of above, it is decided and ordered accordingly that the land bearing block Nos.36/3, 4 (8 Acres) and block Nos.87/1 to 4, (16 Acres) total 24 Acres, Deh Lonia Taluka Mirpur Bathoro District Thatta, granted to Muhammad Soomar (respondent No.1) in the year 1958 vide A‑Form No.469 shall continue to remain enact and shall not be disturbed as the purchaser Muhammad Soomar has:‑‑ (a) paid the full price of the land. (b) fulfilled the conditions of sale. (c) got revised sanction issued converting the land from UA No. to block Nos. (d) got the T.O. Form from issued in his name: (e) got the land mutated in V.F. VII‑B in his name and thereby ceases to be the tenant of the Government within the meaning of section 15 of the Act, 1912 and his grant is deemed to be the transfer of land within the meaning of section 11 of the Act, 1912 read with Government Grant Act, 1895.

35. It is also decided and ordered accordingly that the District Officer (Revenue) Thatta shall issue revised sanction in respect of land bearing Chaukri/field Survey Nos.855 to 858 (16 Acres) of Deh Lonia granted to Muhammad Ramzan in the year 1968 on A‑Form No.H‑1687, dated 19‑9‑1968 converting the land from Chaukri/field Survey number into Block numbers. Having the revised sanction so issued, the District Officer (Revenue) Thatta to his satisfaction, shall determine as to which Chaukri/Field Survey numbers out of the Grant of Muhammad Ramzan are overlapping the Block Survey numbers earlier granted to Muhammad Soomar. Thereafter, the District Officer (Revenue), Thatta shall exclude that much area out of the grant of Muhammad Ramzan (appellant No. 1), which is overlapping Block Nos.36/3, 4 (8 Acres) and 87/1 to 4 (16 Acres) of Deh Lonia earlier first granted to Muhammad Soomar and beyond any shadow of doubt is a duplicate grant and shall issue fresh/revised T.O. Form accordingly for further necessary action as per law.

36. It is also decided and ordered accordingly that the District Officer (Revenue) Thatta shall also issue revised sanction in respect of land bearing Chaukri/Field. Survey Nos.825, 826, 827 and 854 (16 Acres) granted to Khushi Muhammad in the year 1968 on A‑Form No.H‑1693, dated 19‑9‑1968 converting the land from Chaukri/Field Survey member into Block Surrey numbers. Having the revised sanction so issued, the District Officer (Revenue) Thatta to his satisfaction, shall determine as to which Chaukri/Field Survey numbers out of the grant of Khushi Muhammad are overlapping the Block Survey numbers earlier granted to Muhammad Soomar. Thereafter, the District Officer (Revenue). Than shall exclude that much area out of the grant of Khushi Muhammad (appellant No.2) which is over lapping Block. Nos.36/3, 4 (8 Acres) and Block Nos.87/1 to 4 (16 Acres) of Deh Lonia/earlier first granted to Muhammad Soomar and beyond any shadow of doubt is a duplicate grant and shall issue fresh/revised T.O. Form accordingly for further necessary action as per law.

37. Last but not the least, in the list of documents filed, mentioned at page No.5 of the memo. of appeal it has been shown at S. No.2 that a copy of revised sanction allowed to appellant on 20‑5‑1999 is filed, whereas no such document is attached with the memo. of appeal. When inquired from Mr. Bhimraj, the learned Counsel for the appellant on 7th September, 2002, he verified the papers and confirmed that no such revised sanction has ever been issued and in fact the document mentioned at S. No.2 of the list of documents is the T.O. Form, dated 20‑5-1991 and not the revised sanction which is a typing error.

38. I have perused the memo. of appeal. At page No.1, it bears the following endorsement of Reader/Registrar of the Board of Revenue: 'Checked. Complete in all respects. May be registered'

39. The above endorsement is incorrect inasmuch as the document mentioned at S. No.2 of the list of documents filed, is not attached. The Reader/Registrar Board of Revenue, Sindh at the time of receiving, appeals/revisions/review petitions shall check the documents with due diligence, care and caution. He, by accepting the appeal without the aforesaid documents, acted to abitvion of sub‑rules (2) and (3) of rule 3 of the Writ Petition Board of Revenue (Conduct of Appeals and Revision) Rules, 1959. Any way, he should be careful in future and not o accept the incomplete documents.

40. With these observations, the appeal stands disposed off, with no order as to the costs under section 34 of the Act, 1967 read with rule 12 of the Sindh Land Revenue Rules, 1968.

41. Announced given under my hand and seal of the Court, this 7th day of September 2002. S.A.K./61/Rev. Order accordingly.