P L D 1966 W (PLP)

Fdzlur Rahman, for Respondents. This is a revision filed against an order, dated the 7th of June 1961; passed by the Land Commissioner, Dera Ismail Khan whereby he rejected the appeal of the petitioner.

2. The facts of the case are that the petitioner was cultiva ting 742 kanals and 4 marlas of land in village Tank. The respondents were allowed to purchase untenanted land resumed from their father, Nawab Qutab‑ud‑Din Khan. Each one desired to purchase 150 acres of land from village Tank. The Assistant Land Commissioner, Tank rejected the request because he considered that the area was tenanted. Against the Assistant Land Commissioner's orders, the respondents filed an appeal before the Deputy Land Commissioner who accepted it and held that, although the name of the petitioner was mentioned in Register L.C. IX, he was not in actual cultivating possession of the area in dispute in Kharif 1958 anti Rabi 1959. The petitioner went in appeal to the Land Commissioner, who rejected the appeal.. Hence this revision.

3. I have heard the learned counsel for the parties and have consulted the revenue records including khasra girdawari Register LC‑IX and Form LC‑X. An examination of the khasra girdawari shows that Ghani Khan was the tenant in possession of the land in dispute before Kharif 1958 and Rabi 1959. So far as Kharif 1958 and Rabi 1959 are concerned, he is entered in actual cultivating possession of the land in dispute, but the area is shown without any crop. The learned Land Commissioner, and the Deputy Land Commissioner, took up the position that unless a tenant actually cultivates land, he would not be considered eligible to purchase it under paragraph 19 of Martial Law Regula tion No.

64. I am afraid, this is not a correct view. In this case, the petitioner has been in actual cultivating possession of the land before the two harvests, but it so happened that he did not actually cultivate the land in Kharif 1958 and Rabi 1959; that does not mean that his cultivating possession was severed or the land could be treated as untenanted. In these, circumstances, the respondents cannot purchase the land in dispute.

4. Enquiries reveal that Ghani Khan has got 4 adult sons. He was actually cultivating 742 kanals and 4 marlas of land. He could not manage such a large area himself and the area itself is an ample proof that he was being helped by his sons. Under the existing instructions, each of his four sons and he, all the five persons are entitled to get 121 acres each.

5. In L.C. X, he also mentioned his brothers, Ghulam Nabi Khan and Maazallah Khan. It has been admitted by Ghani Khan, as well as Ghulam Nabi Khan, who is present, that Ghulam Nabi Khan and his sons' Maazallah Khan were separate from Ghani Khan. They cannot, therefore, be held' entitled to claim any portion of the land in dispute.

6. In these circumstances, I partially accept the revision, and direct that, out of the land in dispute, Ghani Khan and his four sons, Badshah Khan, Shaista Khan, Qutab Khan and Aslam Khan, will each get an area of 121 acres. The rest of the land in dispute will be treated as untenanted and can be sold to the respondent. S. Q. Petition partly accepted.