1985 PLP 1597 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑The petitioner was allotted agricultural land in lieu of his verified claim in several districts including an area of 186‑22 Acres in Deh Talti of Taluka Sehwan, District Dadu, on 22‑11‑1959. It is the case of the petitioner that on promulgation of Martial Law Regulations Nos. 89 and 91, he surrendered excess area and repurchased the same in Deh Talti. Although he thus remained in continuous possession of the lands since its allotment in his favour a claim was set up to the lands by respondents Mst. Saleha Begum, Mustafa Mian and Abdul Razak as the lawful transferees of the lands. Therefore the petitioner made an inquiry from the relevant Government department and found, according to him, that the said respondents had obtained bogus allotments of the same lands in their favour. The petitioner accordingly filed a revision before the Additional Commissioner and Settlement Commissioner (Land), Hyderabad Division, which was treated as an appeal dismissed by order, dated 29‑11‑1976, on two grounds. The first ground was that the record indicated that the petitioner's claim was fully satisfied in Taluka Guni and Hala, which is why his allotments were found in excess by 282 P.I. Us. as a result of which the Deputy Commissioner cancelled the disputed lands in Deh Talti from the allotment of the petitioner. The second ground that prevailed with the learned Additional Settlement Commissioner was that the order cancelling the allotment of the petitioner was passed by the Deputy Commissioner on 28‑11‑1962 and the appeal was, therefore, hopelessly barred by time, having been filed after a lapse of more than 12 years.

2. The petitioner being aggrieved by this order sought to challenge the same in constitutional petition in the High Court of Sind, at Karachi, but his petition was dismissed by a learned Single Judge vide his judgment, dated 17‑5‑1982. Hence this petition for special leave to appeal.

3. We have heard Mr. G.M. Paryani in support of the petition at some length. His main contention is that the order of the Deputy Commissioner, dated 28‑11‑1962, to which reference was made in the impugned order of the Additional Settlement Commissioner was non existent and fictitious and therefore, it cannot be said that the petitioner's allotment in respect of the disputed lands was validly cancelled. We however, find that this specific contention was not raised by the petitioner before the High Court and therefore, there is no finding recorded by the High Court as to whether the order of the A Deputy Commissioner, dated 28‑11‑1962, really exists or not. We, on our part, are unable to undertake an inquiry at this stage on a factual contention of this nature.

4. We have perused the order of the Additional Settlement Commissioner and the judgment of the High Court. From these, we find that the Deputy Commissioner in his order, dated 28‑11‑1962 had recorded finding that the Khatooni in respect of the disputed land in favour of the petitioner was not signed by any competent authority. Learned counsel was unable to satisfy us as to the genuineness of the original allotment and no document has been placed on the record of this petition to controvert the aforesaid finding. Be that as it may, the other finding of the Additional Settlement Commissioner was to the effect that the petitioner obtained allotment of 300‑16 acres in Badin District, 49‑9 acres in Taluka Hala and 144‑0 acres in Taluka Mehar. Having regard to these allotments, the learned Officer held that the petitioner was not entitled to have further allotments of the disputed land in Taluka Sehwan. No satisfactory explanation has been given by the learned counsel as regards this aspect of the matter. Finally the High Court has held that the allotment in favour of respondents was of a prior date than the date of the allotment in favour of the petitioner i.e. 22‑12‑1959. This fact which remains uncontroverted also clearly makes out that the allotment of the disputed land in favour of the petitioner was not justified.

5. For the foregoing reasons, we find no merit in this petition and accordingly dismiss the same. A.A. Leave refused.