1985 PLP 238 (MLD)

Date of hearing: 6th March, 1985:, AJMAL MIAN, J.-- The petitioners through this petition have impugned the orders dated 8-11-1973, 20-3-1975 and 21-2-1979 passed by respondents Nos. 3, 2 and 1 respectively. The brief facts leading to the filing of the above petition are that one Hap Muhammad Saleh Nahiyoon purported to effect gift in 1970 in respect of the agricultural land mentioned in the petition in favour of the petitioners, his minor sons and daughters, though above land was originally in 1958 gifted to respondent No. 4, then a minor son. It is the case of the petitioners that the gift in favour of respondent No.4 was not acted upon, whereas the case of the official respondents is that the above gift was acted upon inasmuch as under M.L.R. 64 a declaration was filed indicating respondent No. 4 as the owner of the land, which was accepted. It seems that on 1-7-1972 the Land Commis sioner Sind Hyderabad in Case No. 212-3-LC/72-1258 held that the gifts in favour of 'the petitioners were valid. However, it may also be stated that according to Mr. Sattar A. Shaikh, learned A.A.-G. this order was passed upon a declaration filed by respondent No. 4 under M.L.R. 115 to the effect the above gifts were made by him and not by said Hap Muhammad Saleh Nahiyoon. The aforesaid order dated 1-7-1972 was reviewed by the Land Commissioner Sind, Hyderabad by his order dated 8-11-1973 upon' the direction issued by respondent No.l. It is the grievance of the petitioners that the above order was passed without any notice to them. The above order was followed by the other two impugned orders referred to hereinabove, and that too were, passed without hearing them. The petitioners being aggrieved by the above orders have filed the present petition. 2. (a) In support of the above petition Mr. A.Q. Halepota, learned counsel for the petitioners has submitted as follows:- (i) that factually the gift effected by Hap Muhammad Saleh Nahiyoon in favour of respondent No.4 in 1958 was never acted upon and, therefore, the land remained vested in him. (ii) The said Hap Muhemmad Saleh Nahiyoon had effected gifts in favour of the petitioners who were specified heir., in terms of M.L.R. 115 and, therefore, the order dated 1-7-1972 accepting the above gift as valid, was a valid order w~iich could not have been reversed and that in any case once the said order in favour of petitioners was passed, the same. could not have been reversed without hearing them nor the subsequent orders could have been passed without hearing the petitioners. (b) On the other hand Mr. Sattar A. Shaikh, learned A.A.-G. has contended as follows:- (i) That the gift effected by Hap Muhammad Saleh Nahiyoon in 1958 was accepted under M.L.R. 64 in 1958-59 and, therefore, said Hap Muhammad Saleh had ceased to have any interest in the land in question. (ii) That the petitioner obtained the above order dated 1-7-1972 by making fraudulent representation that the gift was effected by respondent No. 4 in favour of his sons and daughters though factually it was not done by said respondent being a real brother.

3. Since the petitioners had acquired some interest in the subject -matter of the petition upon passing of above order dated 1-7-1972, the same could not have been reversed without hearing the petitioners. We do not wish to go into the merits of the respective contentions of the learned counsel for the parties touching upon the merits of the case as we intend to remand the case to the Federal Land Commission. It was then contended by Mr. Sattar A. Shaikh, learned A.A.-G. that a brother of the petitioners next friend was heard. It will suffice to observe that the hearing of a brother of the next friend of the petitioners without having any authority from a competent Court of law B would not constitute hearing of the petitioners., We would, therefore, declare the impugned orders as being without lawful authority and of no legal effect but remand the case to Federal Land Commission with the direction to pass appropriate order after hearing the parties. There will be no order as to costs. H . A . K . Petition accepted.