1989 PLP 2469 (CLC)

AJMAL MIAN, C.J.‑‑This petition is directed against the order dated 13‑11‑1980 passed by the Respondent No.l setting aside the order dated 27‑7 1980 passed by the Chief Land Commissioner, Sind, Hyderabad. The brief facts leading to the filing of the above petition are that survey No.168/1 to 4 situated in Deh Sanjar Chang, according to the averments of the petitioner was allotted to the petitioner in 1974 but the allotment was cancelled by the Federal Land Commission with the direction to dispose of the same afresh. It appears that the Assistant Land Commissioner allotted the above land to Respondent No.2. The petitioner being aggrieved by the above allotment filed an appeal which was dismissed by the learned Deputy Land Commissioner by his order dated 28‑12‑1978. Against the above orders the petitioner filed another appeal before the Land Commissioner Sind which was also dismissed by order dated 26‑3‑1979. Against the above orders the petitioner went in a revision before the Chief Land Commissioner Sind which was allowed by an order dated 27‑7 1980 and case was remanded to the Assistant Land Commissioner with the direction to decide the matter on merit on the question, who was entitled to the allotment after reverification of the status of both the parties. Against the above order, the respondent No.2 filed revision before the respondent No.l which was allowed by the impugned order. The petitioner being aggrieved by the above order has filed the present petition. In support of the present petition Mr. M.M. Pirzada, learned counsel for the petitioner has vehemently urged that none of the respondents has decided the basic question provided in paragraph 18 of M.L.R.115 namely who was shown as tenant in the Revenue record m cultivating possession in Kharif 1971 or Rabi 1971‑72 and, therefore, the remand order was the just order. On the other hand Mr. Usman Ghani Rashid , learned counsel for respondent No.2 has submitted that there is a finding of fact recorded by the forums below on the admission of the petitioner that respondent No.2 was the tenant of the land and that the petitioner was allotted certain land in some other Deh and therefore was not landless Hari. Mr. M.M.Pirzada has invited our attention to paragraphs 7 and 8 of the grounds of the petition in order to contend that factually the petitioner had not admitted anything before the Deputy Land Commissioner or the Land Commissioner Sind and factually the land was allotted in certain other Deh to one Muhammad Khan son of Miro whereas the petitioner is Muhammad Khan son of Haji Miran. He has further pointed out that no counter‑affidavit has been filed by the petitioner to deny the above averment. We have enquired from the learned counsel for the petitioner, whether the above plea was raised by the petitioner in any of the memos. of appeals which was filed by the petitioner as the copies thereof have not been filed. before us. Mr. Pirzada was unable to give reply to the above query as according to him he had not appeared before the forum below. It is true that under paragraph 18 of the M.L.R. it has been provided that the factum that who was in cultivating possession in Kharif 1971 or Rabi 1971‑72 was pertinent for the purpose of deciding the entitlement of the allotment but from the orders on record, it appears that before the Deputy Land Commissioner, the petitioner admitted that the respondent was tenant of the land. This admission was accepted by the Deputy Land Commissioner. It is apparent that this could not have been accepted unless Dy. Land Commissioner was of the view that the respondent No.2 was the tenant at the relevant time. Similarly in the order dated 26‑3‑1979 before the Land Commissioner Hyderabad Division the petitioner admitted that he was allotted some of the resumed land in Taluka Tando Muhammad Khan. The findings of fact on the above two admissions have been concurred with by respondent No.l. As per respondent No.2 he has been in cultivating possession since 1977 and, therefore, it will not. be just and proper to remand this case at this stage. The order of the respondent No.l seems to be just and proper. The petition is dismissed but there will be no order as to costs. M.A.K./M‑869/K Petition dismissed.