2005 PLP 56 (CLC)

15. The above grants were purportedly made under section "B", Part 1, Standing Order No. 10 of the Standing Orders of the Revenue Department, It is true that the grant made vide "A" Form No.7241 was cancelled from Rabi 1948-49 under A.R.Os. Order No.6175 dated 25-3-1950 but it was subsequently, regranted under Assistant Revenue Officers (AROs, No.665, dated 15-5-1951. The year of regrant is disputed. The version of appellant is that it is 1981 whereas the version of the respondents Nos. 1 to 4 is that it is 1951. The confession is that the figure "5" is also readable as "8". In the photo stat copy of "A" Form Na.7241 produced by the appellant which differs from the copy of said "A" Form No.7241 produced by respondents Nos.1 to 4, the contention of the appellants is that the year of regrant is readable as 1981. The copy produced by the appellant is an unattested copy hence not admissible whereas the copy of "A" Form No.7241 produced by the respondents Nos.1 to 4, is duly attested. From the attested copy of "A" Form produced by the respondents, it can be presumed that the land was regranted on 15-5-1951. Had it not been regranted in May, 1951, the then Barrage Authorities would have not accepted the 5th and final instalment on 23-11-1951 and the land in those days would have not been alienated in the name of grantee (Syed Alim Shah): This being the position that the land was fully paid 23-11-1951, there was no question of issuance of T.O. Form because as held in SROR-1488 of 1969-70 (Jalal v. Sajjan) published at page No. 120 of the Sindh Revenue and Land Reforms decision published by the Sindh Land Commission (1980), the condition requiring issue of T.O. Form before the alienation was incorporated in the agreement form vide memo. No.57-67/1850-P-III, dated 5-9-1967 of the Government of West Pakistan, Land Utilization Department and therefore, alienation after payment of full price but before issue of T.O. Form (prior to issue of Notification dated 5-9-1967) was not void. Under these circumstances, non-issuance of T.O. Form in respect of a land having been fully paid in the year 1951 and entered in Record-of-Rights vide first Entry No. 184 cannot be formed a base to hold that the disputed land is not a Qabuli land unless it would have been proved beyond any shadow of doubt that the disputed land after its cancellation vide the then A.R.O.'s Order No.6175, dated 25-3-1950 has never been regranted to Syed Alim Shah and that the entries in the "A" Form No.7241 respecting regrant and the entries in the Record-of-Rights in respect of disputed land in favour of Syed Alim Shah and his legal heirs and subsequent successors in interest including respondents Nos. 1, 2 and 3 are bogus and forged. Whenever it is proved that a glaring fraud has been played and a forgery in the Revenue Record in connivance of subordinate Revenue functionaries has been committed, no one could prevent the Executive District Officer (Revenue) from exercising his suo motu revisional jurisdiction strictly as per. law. There is another misunderstanding whether U.A. No.429 had been surveyed or not. It is evident from the reports of the Survey Superintendent, Khairpur vide his letter No. ZB/96 of 2003, dated 27-1-2003 and No. ZB.133 of 2003, dated 8-2-2003 and the attested copies of the Ghat Wadh Form No-37 that U.A. No.429 was surveyed under the orders of the then Deputy Collector N-Feroze vide No. 1207, dated 21-1-1952 and No.2710, dated 16-1-1952. The net survey numbers (excluding Kharaba) formed out of the above U.A. No.429 and S.No.739 (2-5 acres), 740 (7-0 acres), 741 (6-26 acres), 742 (2-19 acres), 743.(7-1 acres) and 744 (3-1 acres). The Survey No.745 (5-31 acres) and S. No.429 (16-29 acres) are also formed out of the said U.A. No.429 but these two survey numbers are shown under "Kharabo". It is thus, obvious that U.A. No.429 was surveyed and the disputed S.Nos.743, 744 were formed out of U.A. No.429 which were granted to Syed Alim Shah vide "A" Form No.7241 from Kharif 1946-47. The grant is said to have been fully paid on 23-11-1951. The land was mutated in V.F. VII, vide Entry No.284 (date is not shown). Syed Alim Shah died and Foti Khatabadal was made vide Entry No.6, dated 17-2-1987 of V.F. VII-A in the names of following legal heirs:-- (1) Asghar Shah (son) 0-25 Paisa (2) Talib Shah (son) 0-25 Paisa (3) Arif Hussain Shah (son) 0-25 Paisa (4) Mst. Zainab Bibi (daughter) 0-12-1/2 Paisa (5) Mst. Sughran Bibi (daughter) 0-12-1/2 Paisa Total 1-00 Rupee

18. The disputed land has changed the hands as is evidence from Entries No.241, dated 4-3-1987, No.352, dated 4-3-1987 and Entry No.403, dated 3-11-1996 whereby it was purchased by the respondents Nos. 1 to

3. It had also been mortgaged with A.D. B.P. and subsequently, returned vide Entry No.433, dated 8-11-1997 in V.F. VIII-B: It would be seen that nobody right from the beginning (say the year 1946) till today, has formally challenged the original grant made in the year' 1946 or has preferred any appeal or revision against any of the above mentioned entries existing in Record-of-Rights. Insofar as the present appeal is concerned it, as earlier discussed in paras.9 and 10 (ibid), is purportedly an appeal filed under section 9 of the Act, 1987. The present matter before me is not that of the Record of Rights but it is purely against the order dated 27-2-2001 of the then Commissioner, Sukkur concerning the issuance of Sanads and reservation of certain area as "Asaish" under the Act, 1987.

19. The impugned order is dated 27-2-2001 whereas the present appeal is filed on 24-5-2002. Excluding the 27th February, 2001, the day from which the, period is to be reckoned as required in section 12 of the Limitation Act, 1908, the period of filing of appeal is worked out as under:-- February, February, 1991 1 day March, 1991 31 days April, 1991 30 days May, 1991 31 days June, 1991 30 days July, 1991 31 days August, 1991 31 days September, 1991 30 days October, 1991 31 days November, 1991 30 days December, 1991 31 days January, 1992 31 days February, 1992 28 days Match, 1992 31 days April, 1992 30 days May, 1992 (upto 23rd) 23 days Total 451 days

20. Excluding the period of 90 days for filing of appeal vide section 162 of the Act, 1967, the net delay in filing the appeal is worked out as 361 days (451-90-361). It is a settled law that in the matter of condonation of delays in availing legal remedies, each days delay has to be explained satisfactorily. In his written arguments, the learned counsel for the appellant has given no plausible explanation for the delay. The short application filed by the learned Advocate for the appellants under section S of the Limitation Act is an stereotype, simply mentioning that the delay may be condoned on consideration of the facts and grounds mentioned in the accompanying affidavit and memo. of appeal. A perusal of affidavit dated 4-5-2002 and memo. of appeal reveals that no ground or explanation for delay is mentioned either in the affidavit or in the memo. of appeal excepting:-- (a) In para. 3 of the affidavit it is mentioned that delay in filing appeal is neither intentional nor deliberate one. (b) In para. 10 of ground of memo. of appeal, it is mentioned that the appellants due to some unavoidable circumstances could not file the appeal.

21. As laid down in section 5 of the Limitation Act, 1908, an appeal or application for revision or review may be admitted after the period of limitation prescribed therefor when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. The learned Advocate for the appellant has not disclosed any reason for such an inordinate delay occurred in filing of the appeal and even has not made any attempt to satisfy this Court that he had sufficient cause for not preferring the appeal within the prescribed time. The delay cannot be condoned impliedly. In a case reported in 1980 SCMR 875, condonation of delay was refused where the petitioner was unable to satisfactorily explain the long delay of 105 days involved in the case, nor had he made any sufficient cause for condonation of delay. The case is analogous to the above citation and resultantly, there would be no other option for the me but to dismiss the appeal under section 3 of the Limitation Act, 1908.

22. Besides the hurdle of the limitation which the appellant has failed to get across, the present appeal is not maintainable for the following reasons:-- (i) As already explained in paras. 9 and 10 (ibid), the Commissioner, Sukkur Division (defunct) had passed the impugned order (dated 27-2-2001) under section 9(1) of the Act, 1987, which is a final order and no appeal or revision lies against the order before any forum including the Board of Revenue. (ii) If the impugned order is treated as an order which has been passed under section 164 of the Act, 1967, even then no appeal lies against that order because the order dated 27-2-2001 by the then Commissioner passed in revisional jurisdiction under section 164, is not the original order as such no appeal lies against that order. Even, as laid down in clause (d) of section 161 of the Act, 1967 when the order is passed by the Executive District Officer (Revenue), an appeal lies against that order only on a point of law whereas in the present appeal no law point is involved or discussed. In a case reported in PLD 1987 Rev. 24, 28, appeal against an order passed under section 164 was held not maintainable and was dismissed. (iii) As regards the exercise of concurrent jurisdiction of the Board of Revenue under section 164(1)(4) read with section 179 (commonly called as second revision) it is also barred on an application of the affected party owing to the embargo put by second proviso to subsection (4) of section 164 of the Act, 1967 which contemplates that any order passed in revision under this section shall not be called in question -on an application of the party affected by such order.

23. For the above detailed reasons, the present appeal, being not maintainable before the Board of Revenue is dismissed with no order as to the costs. H. B. T./11/Rev. Appeal dismissed.