1989 PLP 4365 (MLD)

AJMAL MIAN, C J--This petition is directed against an order dated 13-11-1980 passed by respondent No.l dismissing the petitioner's Revision.

2. The brief facts leading to the filing of the above petition are that the suit ' land originally belonged to Anluman-e-Tahreek-e-Jadid Ahmedia. The same was resumed under M.L.R.115 (hereinafter referred roc as M.L.R). The petitioner applied for the allotment of the land under para. 18 of the M.L.R. read with the scheme framed thereunder. 1t appears that the above request was declined by the Assistant Commissioner by his order dated 16-6-1977. Against the above order the petitioner filed an appeal which was dismissed by the Deputy Land Commissioner, Hyderabad by his order dated 29-11-1979. Against that the petitioner filed a Revision which was dismissed by the Chief Land Commissioner, Hyderabad by his order dated 27-7-1980. After that the petitioner filed a second revision before respondent No.l which was also dismissed. The petitioner being aggrieved by the above orders has filed the present petition.

3. In support of the above petition it is contended by Mr. M.M. Pirzada, learned counsel for the petitioner that the respondent and the other functionaries which had passed the impugned orders rejected the claim on considerations which were not material for the purposes of deciding the petitioner's claim. On the other hand Mr. Mohammad Osman Abro who is appearing for the private respondents has submitted that there is a finding of fact recorded by the competent forum to the effect that the petitioner was not hari at the relevant time and that he factually gave up the profession of cultivation after he had become old, whereas the private respondents were haris in respect of which there is also a finding of fact.

4. It is evident from the impugned order of the respondent No.l that it seems to be an admitted position that the petitioner was hari of the land which was owned by the aforesaid Anjuman-e-Tahreek-e-Jadid Ahmedia in 1970, the reference to which has been made by respondent No.1 in the impugned orders and which fact is also supported by an order of February, 1970 passed by the Mukhtiarkar and Tribunal, Tando Allah Yar under the Sind Tenancy Act upon an application filed by the petitioner and 13 other tenants against the Manager of the Anjuman. It may be observed that under para. 18 of the M.L.R. the relevant period mentioned is that the applicant should be in cultivating possession of Kharif 1971 and Rabi 1971-72. It has been contended that even if it is to be assumed that the petitioner was not in cultivating possession during the above period, the next question which required adjudication was, whether private respondents were in possession at that time and if they were not in possession then inter se between the petitioner and respondents 2 and 3 who had better claim under the Scheme if the land remained undisposed of. Though in the impugned order respondents 2 and 3 have been referred to as the harts but there is no reference to any document on the basis of which the above conclusion has been arrived at. Not only in the order of respondent No.l but in none of the orders any reference to any document in favour of respondents 2 and 3 has been made.

5. In our view, it will be just and proper if the case is remanded to respondent No.l with the direction to decide the question, who was in the cultivating possession of the land in dispute in Kharif 1971 and Rabi 1971-72 and the second question would be if none of the parties to the above petition was in possession during the above period who had better claim under the Scheme as to the allotment. The respondent No.1 will refer to the documents which may-be produced by the parties. Mr. Osman wanted to show certain documents, which according to him arc the documents to indicate that the above private respondents have been in possession for a number of years at the relevant time. The petition stands disposed of in the above terms with no order as to Costs. M.Y.H/A-613/K