1985 PLP 2021 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑Petitioner Wall Muhammad, being aggrieved by the judgment, dated 19th April, 1984, of a learned Single Judge of the Sind High Court dismissing his revision petition, seeks leave to appeal.

2. Briefly the facts are that the petitioner was admittedly the permanent Hari of a plot of agricultural land bearing Survey No. 17, Deh Rajo Dehri, Taluka Kandiaro, District Nawabshah, admeasuring 3 Acres and 30 Ghuntas, since 1947. This land was owned by Salam Khan and others and was on lease with one Sher Zaman. In about January, 1974, the lessee started harassing the petitioner and as the latter came to know that the land was sold to someone else, the petitioner filed an application to the Mukhtiarkar and Tenancy Tribunal, Taluka Kandiaro, in which he also expressed his preparedness to purchase the land. At about the same time Stier Zaman also submitted an application before the Mukhtiarkar and Tenancy Tribunal, Taluka Kandiaro, seeking termination of tenancy right of the petitioner. The learned Mukhtiarkar and Tribunal Kandiaro, by his order dated 16th April, 1975, held the petitioner guilty of misappropriation of the Zamandari share of the produce and ordered him to give accounts, but did not touch the question of the pre‑emption right claimed by the petitioner on the ground that the land was sold by the owner. On the application of Sher Zaman the Tribunal terminated his tenancy under section 14 of the Sind Tenancy Act, 1950.

3. Being aggrieved by the aforesaid order the petitioner filed an appeal before the Assistant Commissioner, Nawabshah, on which a report was called from the Mukhtiarkar, Kandiaro. The learned Assistant Commissioner in his order, dated 19th June, 197,5, disposing of the appeal observed that Sher Zaman had admitted that a month prior to the date of the order he had purchased survey No. 17 alongwith other survey numbers from Abdul Salam and others under registered sale‑deed. He, therefore, ordered that in the circumstances if it was established that the petitioner was a permanent Hari of the survey number in question, then he had the first right of pre‑emption to purchase it and such a direction be issued to Sher Zaman to transfer .the land to the petitioner. The Deputy Commissioner, Nawabshah, dismissed a revision application filed by Sher Zaman against the order of the Assistant Commissioner on 19th August, 1975.

4. Thereafter, respondent Ghulam Hyder and others filed a civil suit against the petitioner, the Government of Sind, Deputy Commissioner and Assistant Commissioner, Nawabshah, for declaration and injunction, challenging the orders passed by the last mentioned two officers as illegal. It may be mentioned at this stage that respondent No. 1 Ghulam Hyder is the brother of the lessee Sher Zaman who also figured as a witness for the plaintiff in the civil suit. The trial Court dismissed the suit on 19th November, 1978. On appeal filed by the respondent, however, the learned Second Additional District Judge, Nawabshah, allowed the appeal and decreed the suit of the respondents vide judgment, dated 18th May, 1981. The main grounds on which the learned Additional District Judge, allowed the appeal of the respondent was that impugned orders of the revenue officers before the Court were passed in violation of the rule of natural justice, inasmuch as the respondents were not given opportunity of hearing at any stage, that the sale in favour of the respondents was effected after the petitioner's tenancy was terminated by the order of the Mukhtiarkar and Tribunal, and finally that the right of pre‑emption was granted, to the petitioner ‑when no such prayer was made by him in his original application before the Mukhtiarkar and the Tribunal.

5. The petitioner then filed a revision application before the High Court which, as observed above, was dismissed by the impugned judgment in this petition.

6. In support of the petition, the learned counsel contended that the respondents had themselves filed a revision application before the Deputy Commissioner in which they were afforded full opportunity to represent their grievance against the orders passed by the Assistant Commissioner and consequently the High Court erred in holding that the rule of natural justice was violated. He further submitted that the tenancy of the petitioner was not finally terminated by the order of the Tribunal and in the appeal it was found that the petitioner was the permanent Hari of the land. Lastly the learned counsel urged that in his original application the petitioner had offered to purchase the land and had, therefore, exercised his first right of purchase conferred on him under the Land Reforms Regulation. At any rate, according to the learned counsel their is no bar on the appellate authority to entertain such prayer which was clearly made in the memo. of the appeal before the Assistant Commissioner.

7. After hearing the learned counsel for the parties we feel that the contentions raised require consideration. We, therefore, grant leave to appeal and order that the appeal shall be set down for hearing at an early date. Security Rs.500. M. I. Leave granted.