1983 PLP 1998 (CLC)

Under the circumstances, I find that the question of title over the disputed survey number is not under dispute. I, therefore, maintain the Khata of appellant and direct the Mukhtiarkar to decide the application of appellant in respect of proceeding under section 145 of Cr. P. C. With the above observations, the appeal is disposed of accordingly." It seems that the petitioner being aggrieved by the above order filed a Revision before the Board of Revenue, Sind, Hyderabad. which was disposed of by the aforesaid order dated 14th March, 1982. The petitioner being aggrieved by the above two orders, has filed the present petition. 2. (a) In support of the above petition. Mr: Muhammad. Ali Shaikh, learned counsel for the petitioners has submitted as under :‑ (i) That in terms of section 161 of the Act no second appeal was competent before the Additional Commissioner, Hyderabad and, therefore, the aforesaid alleged appellateJ) order dated 6th October,.1981 is without jurisdiction. . (ii) That even the revisional order is without jurisdiction inasmuch as under section 164 of the Act, the revision was competent before the Commissioner and not before the Board of Revenue, Sind. (b) On the other band, Mr. Saeed A. Shaikh, Advocate‑General on Courts notice has urged the following points :‑ (i) That the petitioner did not raise any objection before the Additional Commissioner as to the maintainability of the above appeal. (ii) That in any case the appellate order has been merged into revisional order and, therefore, the appellate order dated 6th October, 1981 is no longer in the field. (iii) That the impugned orders do not prejudice the 'petitioner in any way as his title to 50 /a share in the survey number in question has been maintained. to the above order dated 24th August, 1980, which was passed under section 161 of the Act in exercise of the appellate power. Mr. Saeed A. Shaikh does not contest the position that the aforesaid appeal was not competent before the Additional Commissioner but his submissions as pointed out hereinabove were firstly, that the petitioner did not raise any objection as to the jurisdiction before the Additional Commissioner, secondly in any case the aforesaid appellate order had merged into the revisional order. Mr. Muhammad Ali Shaikh was unable to point out that as matter of fact any objection as to the maintainability of the appeal before the Additional Commissioner was raised by the petitioner. We, therefore, presume that no such plea was raised. However, it was contended by Mr. Muhammad Ali Shaikh that since it is a question of jurisdic tion, the petitioner is competent to raise the same before this Court. If the matter would have rested on passing of the aforesaid order dated 6th October, 1981 by the Additional Commissioner, the petitioner might have a good case to argue. But the aforesaid order stands merged into the revisional order. We are, therefore, not inclined to allow the petitioner to raise this plea at this stage for two reasons namely. (i) he did not raise any such objection before the Additional Commissioner, (ii) that this order was challenged by the petitioner in revision and the revisional order is the order which is now operative.

4. It was next contended by Mr. Muhammad Ali Sheikh that even the foresaid, revision was not competent before the Board of Revenue and therefore the revisional order is also without jurisdiction. In support of the above contention, he has referred to section 164 of the Act but we find that under subsection. (1) of the above section 164, the Board of Revenue has concurrent jurisdiction with the Commissioner. In this view of the matter, it cannot be urged that the order passed by the Board of Revenue is without jurisdiction. Furthermore, it may again be pointed out that the petitioner himself had invoked the revisional jurisdiction of the Board of Revenue and it does not lie in his mouth to urge that the Board of Revenue had no jurisdiction in the matter.

5. We may also observe that the third submission of Mr. Saeed A. Shaikh referred to hereinabove, namely, that the two impugned order have not prejudiced the petitioner is not devoid of any force. The Additional Commissioner in his order dated 6th October, 1981 has maintained the Khata in favour of the petitioner as well as in favour of respondent No. 1, the petitioner according to the Revenue Record owns 50% share in the Survey number in question, whereas the remaining 50% is owned by respondent No. 3, the above position has been maintained by the Additional Commissioner as well as by the Senior Member Board of Revenue, Sind. Mr. Muhammad Ali Shaikh has not been able to produce any document to indicate that he has any interest whatsoever in the remaining 50% share which is owned by respondent No.

3. The petition, therefore, is also liable to be dismissed on the above‑ground.

6. For the aforesaid reasons, the petition is dismissed in limine. K. M. A. Writ petition dismissed.