1999CLC921 (PLP)

SARMAD JALAL OSMANY, J.‑ This petition impugns the order, dated 17‑12‑1997 passed by the learned Deputy Commissioner, Thatta, in Appeal No.28 of 1997 filed by the respondents Nos.3 and 4 against the present appellants whereby the allotment of the disputed land in favour of the respondents Nos.5 and 6 was cancelled with the consequent result that further transfer of the land by said respondents in favour of the petitioners also stood vitiated by operation of law. As per the averments contained in the petition the brief facts of the matter are that the land in dispute i.e. Survey Nos.86, 87, 88, 89 and 90 situated in Deh Simki Taluka and District Thatta were owned jointly by Evacuee Hindus and the fore‑fathers of the respondent No.3 in equal shares. After partition, 50% of the property was treated as Evacuee and consequently went into the compensation pool for allotment to displaced persons who cane over from India at the said time in due course. The said 50% land was allotted to S.M. Taheer Hassan and S.M. Musheer Hassan respondents Nos.5 and 6 under the Displaced Persons Lands Settlement Act, 1958 and after completion of all formalities, the said land was entered in the record of rights in favour of the abovementioned respondents Nos.5 and

6. It is further averred in the petition that 50% of the aforementioned property was offered for sale to the petitioners by the allottees through their Attorney Abdul Hafeez, which was accepted by the former and the sale of the land was effected in favour of the petitioners at the rate of Rs.8,000 per acre. Various portions of the land were purchased by various petitioners for consideration and accordingly fifty per cent. of the land was mutated in the record of rights in favour of the petitioners on 7‑6‑1986 and after that date the petitioners are in lawful possession of the same without any interference from any person. However, respondent No.3 being the owner of the balance 50% land in question had filed a Pre‑emption Suit against the petitioners before the respondent No.l, i.e. Deputy Commissioner but the same was dismissed as having abated in accordance with judgment of the Shariat Appellate Bench of the Honourable Supreme Court. That thereafter other attempts were made by the respondent No. 3 to purchase 50% share of the land but without any success and finally the said respondent moved an application before the Deputy Commissioner, Thatta on the basis that the 50 % land left behind by Evacuee Hindus was not really evacuee property and, thus, could not be settled upon the respondents Nos.5 and 6 and could not be lawfully conveyed to the petitioners by the said respondents. The said application was heard by the Assistant Commissioner, Thatta i.e. respondent No.2, who came to the conclusion, vide his order, dated 31‑10‑1997 that since the matter was subjudice in a Civil Court he could not give any finding and advised the parties to have their disputes settled before the Court, which was seized of the matter. Thereafter, respondents Nos.3 and 4 filed a Revision Petition before the Deputy Commissioner, Thatta, against the orders, dated 31‑10‑1997, who in due course passed the ex parte order, dated 17‑12‑1997. allowing the said revision petition and cancelling the allotments of respondents Nos.5 and

6. The petitioners being aggrieved thereby have filed the present petition. In the parawise comments filed on behalf of the Deputy Commissioner, Thatta the only disputed question is that as regards para.4 of the petition, it is stated that initially the disputed land was allotted to Khan Bahadur S.M. Baqar on 31‑7‑1958 but after promulgation of M.L.R.89 of 1991, the said claimant surrendered the land and did not opt to purchase the same and accordingly the status of the land changed from Evacuee to surrendered land, which thereafter became the property of the Provincial Government and, thus, could not be allotted against satisfaction of Evacuee Claims but was to be disposed off by the Revenue Officials, Kotri Branch. Consequently, the respondents Nos.5 and 6 could not lawfully have been allotted the disputed land against their claims because, in the first instance, the said land did not form part of the common pool for the purpose of said allotment and furthermore the said respondents had already been allotted land in Deh Agehemani. Therefore, it has been maintained in the parawise comments that the subsequent sale/transfer of the land to the petitioners by respondents Nos.5 and 6 was unlawful and, therefore, null and void.. Accordingly, the entries in the record of rights with regard to the allotments of the disputed land to respondents Nos.5 and 6 were cancelled being unlawful and obtained fraudulently. It has also been denied in the parawise comments that the impugned order was ex parte as the notices were pasted on the doors of the residence of the respondents Nos.5 to 6, whereas the petitioners were present on the date of announcement of orders. The same position has been taken by the respondent No.4 in his counter‑affidavit to the petition. Mr. K.B. Bhutto, learned counsel for the petitioner has strenuously urged the following in favour of the petition. (a) That after repeal of the rehabilitation laws vide Evacuee Property Displaced Persons Laws (Repeal) Act, 1975, the Revenue Authorities including the respondent No.l become functous officio and, thus, had no jurisdiction to pass the impugned order such being only within the purview of the notified Officers as per section 2(2) of the Act. (b) Even otherwise no notice was given to the petitioners before passing of the impugned order which is defective to that extent as well. (c) That under section 11 of the Land Revenue Act only the Chief Settlement Commissioner could take cognizance of the disputes between the parties. Learned counsel has relied upon the following:‑‑ (a) Sher Afzal Khan v. Haji Razi Abdullah and others 1984 SCMR 228, (b) Muhammad Yousuf v. Muhammad Yousuf 1994 CLC 1269, (c) Abul A'la Muadoodi and others v. Government of West Pakistan PLD 1964 SC

673. On the other hand, Mr. Shabbir Ahmed Shaikh learned counsel for the respondent No.3 has submitted as follows:‑‑ (a) That as per M.L.R. 1984 the surrendered land could not vest in the common pool and hence could not become evacuee and thereafter, allotted to respondents Nos.5 and 6 against their entitlements. (b) That even otherwise respondents Nos.5 and 6 having been allotted other land as against their claims, the allotment of the disputed land was patently fraudulent and bogus. (c) That accordingly the impugned order was correctly passed as the disputed property having been vested in the Provincial Government, it could be disposed of by the Revenue Officers Kotri Barrage as per M.L.R. No.89 which, was done in favour of respondents Nos.3 and

4. Consequently, the names of the petitioners were cancelled from the Record of Rights and those of the respondents Nos.3 and 4 entered. Learned counsel has relied upon the following case‑laws. (a) Noor Muhammad and others v. Member Board of Revenue and others 1968 SCMR 600, (b) Ali Muhammad v. Hussain Bukhsh and others PLD 1976 SC 37, (c) Khuda Bukhsh v. Khushi Muhammad PLD 1976 SC 208, (d) Yousuf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104, (e) Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC

236. We have heard both the learned counsel as well as the learned A.A.‑G. and have come to the conclusion that essentially the matter involves questions of fact the foremost being whether the disputed property was originally allotted to S.M. Baqar and whether he surrendered the same which thereafter, came to be vested in the Provincial Government. Similarly the other important question would be that even if it were established that the disputed property was lawfully allotted to respondents Nos.5 and 6 on an evacuee basis, whether the said allotment was fraudulent on the basis that the said respondents had already been A settled on some other property in satisfaction of their evacuee claims. In our view these and other questions of fact would require evidence and consequently, a civil Court would be the only competent forum where this exercise could be carried out. During the course of arguments learned counsel had submitted that the matter is pending before the learned Senior Civil Judge, Thatta. If that be the case, the parties are directed to have their title to the disputed property resolved before such forum, otherwise to approach the appropriate Civil Court for this purpose. This petition is in the circumstances dismissed with no order as to A Costs. However, the parties are directed to maintain status quo till the final decision in the matter is obtained from the Civil Court. I agree Mrs. Majida Razvi, J H. B. T. /M‑406/K Petition dismissed