ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P.NO.D-1017 OF 2013.

DATE ORDER WITH SIGNATURE OF JUDGE

1. FOR ORDER ON OFFICE OBJECTION ALONGWITH REPLY AS FLAGGED.

2. FOR ORDERS ON M.A.NO.8019 OF 2013.

3. FOR KATCHA PESHI.

4. FOR HEARING OF MA NO.5148 OF 2013.

23.10.2013.

Mr. Jagdesh R. Mullani, Advocate for petitioners.

Mr. Allah Bachayo Soomro, Additional Advocate General.

Mr. Wali Muhammad Khoso, Advocate for respondents No.6(a), (b)(i), (ii) and (iii).

The dispute in the present Constitutional Petition pertains to survey Nos.10, 11, 12, 13, 14, 15 and 16 of Deh Unarki, Taluka Tando Ghulam Hyder, District Tando Muhammad Khan. These survey numbers under the Land Grant Policy were allotted to various persons including the private respondents in 1960-61 on full rate basis. The payment was to be made in installments and upon the payment of installments to the Government, the Government issued transfer orders in favour of the allottees. On 08.08.2006 an application through Zila Nazim Tando Muhammad Khan was moved to the District Officer Revenue (Estate), Tando Muhammad Khan seeking cancellation of the grant of the above said land on the ground that it was wrongfully allotted to the allottees in violation of the Land Grant Policy. On the application of the petitioner No.1, suo motu action was taken and after hearing the parties, the claim of petitioner No.1 was dismissed vide order dated 28.10.2009, by holding as under:-

“I have perused the Barrage record and heard its representative. It is inter alia stated that as per Barrage laws any S.No, which is Government Na-qabooli land and sought to be placed for disposal is to be checked of the initial stages from all its angles including the concept of the factum of 20 chains. I have also seen the revenue record. There is no mention whether the village Theba was ever regularized under the Sindh Goth Abad (Housing Scheme) Act, 1987.

For the reasons stated above, I have no hesitation to hold that the Respondent No.01 is not come with clean hands. A study of the file reveals that he has wasted the precious time of the revenue functionaries in vaxious allegations, as other wise there is no truth into his allegations, the main factor that the Respondent No.01 never challenged the impugned grants in any revenue court during a bulky period of nearly 50 years, which are still intact. In the result, I, hereby dismiss the plea of Respondent No.01 being unfounded and bad in law, as stated above and consequently up-hold the grants and maintain corresponding entries in the record of rights. The Respondent No.04 is proforma party hence, no order is passed for or against him.”

2. Aggrieved by the decision of the Executive District Officer (Revenue), Tando Muhammad Khan, the petitioner No.1 alongwith other petitioners filed an appeal before the Board of Revenue Sindh, which heard the appeal and dismissed the same on 21.03.2013 after holding as follows:-

“The counsel for appellants submitted his counter objections on 01.04.2010 stating therein that appellants filed appeal u/s 161 Land Revenue Act before Board of Revenue as per law and grant is within 20 chains of village hence illegal and appellants have been declared residents of village Thebo by the Honer’able Civil Judge and Judicial Magistrate Matli vide judgment dt: 11.10.2003 and his CNIC and voter list reveal the same facts. There was ban on disposal of state land within 20 claims of village and District Officer (Revenue) has also reported the same facts and land was granted to respondents secretary and both grants lie within 20 claims of village. There are rulings of Supreme Court that limitation does not run against void order when the grants are illegal or void the learned Executive District Officer (Revenue) has powers to cancel the grants within 20 claims of village.

The record of rights and report was perused on 17.07.2011 in which Supervising Tapedar appeared and reported that in S.No.15 there are 15 to 20 homes. Which as per entry No.10458/56 of Mst Umatullah w/o Ali Muhammad Nizamani Foti Khata change was affected in fever of her legal heirs in respect of land bearing S.No.12, 14, 15, 204, 261 total area 16-11.

I have gone through the arguments advanced by the parties perused the papers available in file and record of rights, it appears that grants were made in years 1960-61 and the land has changed the status from state Na-Qabooli land to Qabooli land and the learned Executive District Officer (Revenue) Tando Muhammad Khan has passed elaborate order after hearing parties and there is no legal vaccum in, hence I do not find any reasons to interfere with the order dt:28.10.2009, the same is maintained accordingly.”

3. Aggrieved by the concurrent findings of both the revenue authorities below, the present Constitutional Petition has been filed.

4. Counsel for the petitioners contends that there was ban on the disposal of state land within 20 chains of the village and some of the allottees were residents of the adjacent village Theba and therefore, the grant was contrary to the Land Grant Policy as declared on 20.07.1944. He further stated that the land, which was allotted to the allottees in 1960-61 was for the agricultural purposes, but the same has been used for other purposes. He also contended that under the Land Grant Policy consent of the villagers of the adjoining village ought to have been obtained, which was not done and therefore the grant itself being void was liable to be cancelled. He submitted that mere fact that the payment has been made and T.O. form was issued does not confer any right over the said land unless conveyance deed in favour of the allottees are executed and where the terms and conditions of the grant are violated, revenue authorities are competent to cancel such grant and the issuance of T.O. form would not come in the way. In support of his contention, learned counsel for the petitioners relied upon the judgments reported as N L R 2003 (Revenue) 05, 1987 P L D S.C. 123, N L R 1985 (Revenue) 56 and N L R 1984 (Revenue) 121. He further contended that the petitioners have validly challenged the grant made in 1960-61, which is of no legal effect for the reason that the grant itself was void and against a void order no period of limitation runs. In support of his contention, he relied upon 2013 S B L R 381 and 2013 M L D 266. Learned counsel has also pointed out that in the year 2000 some of the petitioners filed suit bearing No.10/2000 with regard to the disputed land against an allottee of the land in question and a compromise was effected between the parties and by consent the suit was decreed on the basis of joint application moved under Order 23 Rule 3 C.P.C, contents of which are as under:-

“It is prayed that the parties have compromised in the suit. This Honourable court may be pleased to accept the compromise and decree the suit in terms of compromise as under:-

1. That the plaintiffs are in exclusive possession enjoyment and ownership of the suit land known as Goth Theban-Jo situated by the side of Railway line, adjacent to survey Numbers, 13, 15 and 16 of deh Unarki, tapo Fateh Bag taluka Matli. They are in occupation, possession and enjoyment of the said area admeasuring 2-09 acres in their own right, title and interest since their forefathers. The defendants have got no right of any kind over the said area 2-09 acres. Plaintiffs are its owners of all purposes.

2. That the defendants themselves through their representatives, associates agents, relatives etc will not interfere in the said suit land, its possession of plaintiff, use, took occupation etc, of the plaintiffs, directly or indirectly.

3. That the plaintiffs will not interfere in the Qabooli land of share of defendants in any way.

4. Parties will bear their own costs.”

5. Mr. Wali Muhammad Khoso, learned counsel for the private respondents, on the other hand, contended that valuable right and title has been created in favour of the private respondents and other allottees, who obtained the grant in 1960-61 and that there do not exist sanctioned village and therefore the claim made by the petitioners is based on misrepresentation of facts, as they raise claim to the land in question after more than 50 years of the grant in favour of the private respondents and other allottees. He also argued that after filing this petition an interim order was passed and under the garb of such interim order the petitioners have started taking forcible possession and entered into sale transactions with other persons, therefore they have also committed abuse of the process of the Court.

6. Learned Additional A.G. on the other hand, referred to the contents of the compromise application and stated that case of the petitioners is based on fraudulent claim, as in the plaint nowhere the disputed survey numbers are mentioned, nor they claimed that the disputed survey numbers were allotted to them. He also contended that the claim of the petitioners that there exists sanctioned village is also incorrect and based on false plea. He next contended that had the allotment in favour of the allottees in the year 1960-61 being violative of the Land Grant Policy then the said grant ought to have been challenged in legal proceedings at appropriate stage. He referred to clause-3 of the compromise application, wherein the petitioners have themselves stated that they will not interfere in the Qabooli land and the share of the respondents which, according to him, reveals that they have not only failed to challenge the allotment/grant made in favour of the private respondents in 1960-61, but even recognized the said allotment in paragraph-3 of the compromise application.

7. It is an admitted position that the disputed survey numbers were allotted under the Land Grant Policy that was declared in the year 1958 and these survey numbers were allotted to the private respondents and other allottees on certain terms and conditions. Full price was then paid by the allottees. It is also admitted that after making full payment the T.O. form was also issued in favour of the allottees. Though, the petitioners counsel has stated that land was put to some other use and the consent of the allottees of the adjacent village/area was not obtained, we are of the view that after 53 years of the allotment, in absence of any material or evidence that no such consent was obtained, this Court cannot reopen the past and closed transaction. Ignorance of law is of no excuse. If the petitioners, who claim to be residents of the area, had any objection to the grant, they should have challenged the same with necessary dispatch and moved to the Revenue Authorities at the relevant time, but they failed to do so. Furthermore, a party in legal proceedings has to defend his case by producing witnesses and documentary evidence and if decades passed then it is very difficult for it to bring forward the witnesses and other documentary evidence on record and for this reason it is necessary that the dispute should be taken to Court within reasonable time so that the other side may be able to defend his right by producing proper evidence. The petitioners have themselves filed legal proceedings in the form of civil suit bearing No.10/2000 and in that suit also they not only failed to challenge the grant, but also recognized the ownership of land in favour of the allottees. The law will not come in aid of an indolent. Perusal of revenue record shows that the land in question was in occupation of the allottees since 1923 and on the basis of such occupation they sought allotment under the Land Grant Policy, which was announced in 1958. Nothing has been said as to for what purpose the land in question was put to use other than agriculture. After acquiring title in the land in question, on making full payment, the allottees became absolute owners of the land and they can put the land for whatever use, which is permissible in law. As to the village land measuring 02-09 acres the same was not part of any survey number allotted to the respondents and other allottees in 1960-61, but it was a separate land adjacent to the allotted survey numbers, as is mentioned in the compromise application. If any term or condition of the compromise made in the suit has been breached by any of the parties to the suit the appropriate forum is to seek remedy before the civil Court. The decree has also been disputed by the private respondents, as they were not party to that suit. It goes without saying that decree binds only those, who are parties to the suit or successor-in-interest of the parties and not to strangers.

8. In the circumstances, no case for interference by this Court is made out. The petition is accordingly dismissed.

JUDGE