P L D 1957 W (PLP)

A. K. MALIK.

This is a petition for revision of an order of the Additional Commissioner, Multan Division, dated 9th May 1956, whereby he upheld the order of the Collector, Montgomery, dated 1st March 1955, allotting a horse-breeding square in Chak No. 29/14-L, Tahsil and District Montgomery to Muhammad Sadiq respondent. Fazil petitioner and Muhammad Sadiq, respondent are brothers, the latter being the elder son. The land in dispute was granted to their father, Walia, on horse breeding conditions. Walia died on 26th November 1954. The District Remount Officer recommended that the tenancy should be given to Fazil, petitioner, on the ground that he was capable of carrying out the conditions of the grant in all respects. This recommendation was accepted by the Collector, Muhammad Sadiq respondent went in appeal to the Commissioner, who remanded the case to the Collector on 27th September 1955, for fresh decision on the ground that no specific reasons for ignoring the senior most heir of the' deceased had been given. A fresh report was then called for from the District Remount Officer who again recom mended Fazil in very strong terms. D. R. O. also stated that Muhammad Sadiq was running a shop and in fact had mortgaged his ancestral holding with someone else. The Collector, however, has ignored the recommendation of D. R. O. on the ground that according the rule of primogeniture Sadiq was better entitled to the tenancy. Fazil's appeal before the Additional Commissioner also failed on the ground that it could not be argued that Muhammad Sadiq respondent would prove a bad breeder unless he was given a chance to prove his merits. I have heard Kh. Abdur Rahim for the petitioner and Mr. Muhammad Amin Khan for the respondent. According to condition No. 17 of the Statement of Conditions relating to these grants if a tenant dies during the period of tenancy the land shall revert to Government and may be granted to either one of his heirs by selection by the Government, provided that such heir is considered to be fully capable of satisfactorily carrying out the conditions of the grant in all respects, or to some other tenant: It is clear that the heirs of the tenant cannot claim the grant as a matter of right nor has senior heir any preference over junior heirs. I think the learned Additional Commissioner and the Collector both have erred in taking the view that the Rule of primogeniture should be given any weight in the selection of the heir. My learned brother, H. A. Majid, has in a recent case relating to a similar grant viz Muhammad Ali Shah v. Fida Hassan Shah Appellate Side No. 176 of 1955‑56 (P L D 1956 W. P. (Rev.) 48) rightly observed that the selection of a new tenant in such a case should normally be made in favour of the persons whom the District Remount Officer recommends unless the Colonisation Authorities find adequate reasons which would justify departure from his recommendations. As mentioned in condition No. 17 no heir can be selected as a tenant unless he is considered to be fully capable of satisfactorily carrying out the conditions of the grant in all respects. In the present case it was the petitioner, who was recommended by the District Remount Officer, who is immediately concerned with horse‑breeding to be capable of fulfilling the conditions of the grant. The District Remount Officer had given cogent reasons in support of his opinion. I do not think that there were sufficient reasons for the learned Additional Commissioner or the Collector for overriding D. R. O's. recommendations. Under these circumstances. I accept Fazil's appeal. K. M. A. Appeal accepted.