1986 PLP 694 (MLD)

AJMAL MIAN, J.‑‑This petition is directed against the order dated 9‑10‑1978, passed by respondent No.1. The brief facts leading to the filing of the above petition are that the suit land was granted in 1943‑44 to late Haji son of Muhammad Elyas Sheedi from Rabi crop, 1943‑44 subject to the payment of price in instalments. It seems that late Haji paid Rs. 70‑9 on 10‑12‑1944. The grant was cancelled on 11‑4‑1947 on the ground of non‑payment of the instalment: The suit land was granted on 5 years lease to the two present petitioners on 26‑12‑1973. From the record, it seems that they cultivated land for two years. After that the land was put in schedule for permanent grant. It is the case of the petitioners that they were granted the above land in an open Katchery on 26‑6‑1975 (Annexure 'E' to the petition). It appears that respondent No.2 filed an appeal on 3‑6‑1976, which was dismissed by the Additional Commissioner, Hyderabad by his order dated 15‑11‑1976 on the ground of limitation as the grant was made as observed hereinabove on 26‑6‑1975. Respondent No.2 being aggrieved by the above order filed revision before respondent No.1, which was allowed by the impugned order dated 5‑10‑1978 on the ground that late Haji son of Muhammad Elyas Sheedi was not served with a notice prior to the cancellation. The petitioners being aggrieved by the above order have filed the present petition. It may be observed that none has appeared for the respondents, though the intimation for the date of hearing was sent to both the respondents for today. We have, therefore, proceeded with the case in the absence of the respondents.

2. In support of the above petition, Mr. Muhammad Ismail H. Memon, learned counsel for the petitioners has urged that since grant was cancelled on 11‑7‑1947 and as thereafter the land was granted on 5 years' lease on 26‑12‑1973 and that factually the petitioners were put into possession in 1973, which is reflected by Annexure 'F' dated 25‑11‑1975, the question of non‑service of notice had become insignificant, as at no point of time respondent No.2 agitated the question of notice prior to the filing of the aforesaid appeal. He has referred to the case of Rais Allahdad Khan v. Collector District Sanghar, Hyderabad Division and another, reported in P L D 1960 (W.P.) Kar. 651, in which it was held that the Revenue Authorities were not obliged to serve notice for the payment of the land revenue as the dates for payment are known to the Zamindars. The above case has no direct application to the present case as the question in issue is whether prior to the cancellation a notice should have been issued to late Haji.

4. It was then contended by Mr. Muhammad Ismail H. Memon that on 11‑7‑1947 when the grant was cancelled, the Punjab Colonization Act was not applicable to the Province of Sind, and, therefore, the requirement of notice under section 24 was not there. We are of the view that since there was no action on the part of late Haji and, thereafter, on the part of respondent No.2, his son inasmuch as the did not contest the grant of the lease on 26‑12‑1975 in favour of the petitioners, they did not contest the handing over of the possession of the land to the petitioners. Nor they contested the inclusion of the land in the schedule nor raised any objection to the disposal of the land in open Katchery. In view of the above acts/omissions on the part of late Haji and his successor in interest respondent No.2 for about 2 years, we are inclined to hold that respondent No.1 was not justified to re‑open the issue, which already stands concluded. The order of the Additional Commissioner dismissing respondent No.2's above appeal on the ground of limitation was more in consonance with law.

4. We, therefore, allow the above petition and declare the impugned order as without lawful authority and of no legal effect, but there will be no order as to costs. A. A.??????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.