1989 PLP 4386 (MLD)

AJMAL MIAN, C.J.--This petition is directed against an order dated 18-12-1979 passed by respondent No.1. setting aside the order of respondent No.2 dated 12-4-1978.

2. The brief facts leading to the filing of the above petition are that the petitioner purchased Survey No.506, hereinafter referred to as the Survey Number, measuring 6-18 acres for a sum of Rs.17,500 from one Muhammad Nawaz Khan, respondent No.5, through a registered sale-deed on 20th October, 1976. It seems that respondents Nos.6 and 7 filed an application on 5-3-1977 addressed to the Prime Minister, Chief Minister of Sind, Revenue Minister, Government of Sind, Deputy Commissioner, Khairpur and Superintendent of Police, Khairpur, averring therein that they were in possession of Survey Number since 24 years without any break and that the petitioner was threatening to eject from harp land. It may be observed that there is another application dated 15-1-1976, which according to Mr. A. Q. Halepota, learned counsel for respondents Nos. 6 and 7, should be read as dated 15-1-1977, Annexure 'B' to the petition, addressed to the Mukhtiarkar Gambat for claiming the right of pre-emption on the basis that respondents Nos. 6 and 7 were sitting tenants of the land at the relevant time. This application has been disputed by the petitioner and it has been alleged that this has been planted, which allegation has been denied vehemently by the learned counsel for respondents Nos. 6 and

7. It appears that the petitioner also filed an application before the Mukhtiarkar on 26-4-1977 alleging that the names of respondents Nos. 6 and 7 were wrongly recorded in Number Shumari Register in the year 1975-76 and that the same be deleted. Upon the above application according to respondents Nos. 6 and 7 without hearing them their names were scored off and the name of the petitioner was substituted. Be that as it may, the respondents Nos. 6 and Ts above application dated 15-1-1976 (15-1-1977 as contended) was forwarded by the Mukhtiarkar to the Deputy Commissioner alongwith the statement of respondent No.6 and also alongwith certain other documents. Thereupon, the Deputy Commissioner by his order elated 6-10-1977 allowed the respondents Nos. 6 and 7's aforesaid application for pre-emption. The petitioner being aggrieved by the above order filed an appeal before the Commissioner, who by his order dated 12-4-1978 set aside the order of the Deputy Commissioner. Against the above order, respondents Nos. 6 and 7 filed revision, which was upheld by the Board of Revenue by impugned order dated 18-12-1979. The petitioner being aggrieved by the above order has filed the present petition.

3. In support of the above petition, Mr. Farooq H. Naek, learned counsel for the petitioner, has contended as follows: (i) That if factually respondents Nos. 6 and 7 had filed an application on 15-1-1977 for claiming the right of pre-emption, there was no occasion for them to have filed an application on 5th March, 1977, which was addressed to the Prime Minister of Pakistan and the other official personnel referred to hereinabove and in which no reference to the pre-emption application for claiming the right of pre-emption was made. (ii) The alleged application dated 15-1-1977 in fact has been planted by respondents Nos. 6 and 7 in the office of the Mukhtiarkar though the normal application should have been filed in the Office of the Deputy Commissioner. (iii) That even otherwise there was no reliable evidence before respondent No.1 to have concluded that factually respondents Nos. 6 and 7 were in physical cultivating possession on the target date. (iv) That factually respondents Nos. 6 and 7 had waived their alleged right of pre-emption. (v) That the petitioner was not heard by the Deputy Commissioner; and (vi) That the price was not paid by the respondents Nos. 6 and 7 as per order of the Deputy Commissioner. On the other hand Mr. A.Q. Halepota, learned counsel for respondents Nos. 6 and 7, has submitted as under:- (i) That since the application dated 5-3-1977 was drafted in muffasil by a person not well-conversant with the intricacies of the legal aspect, no reference to the application for claiming right of pre-emption made by the respondents Nos. 6 and 7 was made therein and secondly, the object of making the said application was to protect possession of the respondents over the land in dispute till their right of pre-emption was decided for which separate application was pending. (ii) That there is no question of planting any application dated 15-1-1977 as there is sufficient material on record of the Revenue authorities to support the genuineness of the above application. (iii) That factually the Mukhtiarkar had no right to score off the names of respondents Nos.6 and 7 from Number Shumari Register of the year 1975-76 upon the petitioner's application dated 26-4-1977 of which no notice was given to the respondents Nos. 6 and 7. (iv) That there is sufficient material available in the Revenue record to indicate that respondents Nos. 6 and 7 were in cultivating possession as tenants on the target date. (v) That there was no waiver on the part of respondents Nos. 6 and 7 as to the right of pre-emption. (vi) That factually the petitioner was given the notice of the hearing and his counsel was heard; and (vii) That the time for the payment of the price was extended.

4. We would not like to dilate upon the above submissions made by the learned counsel for the parties as we intend to remand the case to the Commissioner. It will suffice to observe that the Commissioner while deciding the appeal filed by the present petitioner has not touched upon the above factual aspects, which were very much pertinent for the purpose of deciding as to whether respondents Nos. 6 and 7 were entitled to any pre-emption right as alleged by them. The decision of the Commissioner is mainly based on the administering of special oath, which was not warranted by law as rightly observed by the Board of Revenue in the impugned order. In our view, it will be just and proper that the matter may be remanded to the Commissioner with the direction to send for the entire record relating to the Survey Number in question from the office of the Mukhtiarkar and Deputy Commissioner and to allow the parties to produce further material which they may wish to produce in support of their respective claims and thereafter to decide all the above questions which have been raised or are further be raised.

5. The petition stands disposed of in the above terms with no order as to costs. M.Y.H./M-843/K Case remanded.