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Revision No. 5 of 1962‑63, decided on 20th August 1963.

paras. 7,15 & 19‑Exchange of gifted land with resumed land Resumed land found to be cultivated and tenanted, already sold to tenants concerned‑Order of Land Commissioner permitting such exchange, held, inappropriate.

Sh. Ziauddin for Petitioner.

Rana Abdur Rahim for Respondents.

This order will dispose of the following 16 revisions:‑---

(1) Mohabat v. Mst. Phatti and Mst. Saida n (Revision No. 5)

(2) Alim v. Mst. Phatti and Mst. Saidan (Revision No. 6)

(3) Chattun v. Mst. Phatti and Mst. Saidan (Revision No. 7)

(4) Achar v. Mst. Phatti and Mst. Saidan (Revision No. 8)

(5) Alan v: Mst. Phatti and Mst. Saidan (Revision No. 9)

(6) Nooro v. Mst. Phatti and Mst. Saidan (Revision No. 10)

(7) Muhammad v. Mst. Phatti and Mst. Saidan (Revision No. 11)

(8) Khuda Bakhsh v. Mst. Phatti and Mst. Saidan (Revision No. 12)

(9) Piaro v. Mst. Phatti and Mst. Saidan (Revision No. 13)

(10) Murad v. Mst. Phatti and Mst. Saidan (Revision No. 14)

(11) Dineo v. Mst. Phatti and Mst. Saidan (Revision No. 15)

(12) Khan v. Mst. Phatti and Mst. Saidan (Revision No. 16)

(13) Haji v. Mst. Phaltt and Mst. Saidan (Revision No. 17)

(14) Hasso v. Mst. Phatti and Mst. Saidan (Revision No. 18)

(15) Ramzan v. Mst. Phatti and Mst. Saidan (Revision No. 19)

(16) Obhayo v. Mst. Phatti and Mst. Saidan (Revision No. 20)

These 16 revisions have been filed against orders, dated the 20th of June 1963 passed by the Land Commissioner, Hyder abad, whereby he rejected a petition preferred by the petitioners appealing against the orders of the Deputy Land Commissioner, Sanghar. Appeals were filed; but as second appeals do not lie in such cases, these appeals have been treated as revisions.

The facts of the case are that Haji Ghulam Qadir Nerejo made gifts in favour of his wife % and daughter in respect of certain lands and also submitted his LC‑I and LC‑II Forms. The gifts were allowed and he was permitted to retain the permissible area on the basis of the request made in Form LC‑II. Subsequently, on 1st July 1961, he submitted an application with the request that the land gifted to his wife and daughter might be allowed to be exchanged with the area resumed from him on the basis of equality of produce index units. The last date for such applications was the 30th of June 1961. The application was late by a day, but my learned predecessor condoned one day's delay and the application was, therefore, considered on merits in the light of the instructions issued by the Land Commis sion.

The Mukhtiarkar and the Sub‑Assistant Land Commissioner, Sanghar, made a report that the land for which an exchange was sought, was at that time, untenanted and not in the possession of any tenant. It was added that this land was allotted to the tenants but they had since left the land and had returned the Khataunis with the request that their Khataunis might be cancelled as they were not prepared to take this land. The Deputy Land Commissioner considered this land to be untenanted and allowed the exchange.

The petitioners were the tenants in possession of the land in dispute which had been sold to them in accordance with the scheme prepared by the Land Commission. They were not heard by the Deputy Land Commissioner when he passed the orders dated 7th March 1962 whereby the exchange sought for by Haji Ghulam Qadir Narejo was allowed. Subsequently, when the petitioners came to know about the granting of this request for exchange, they went in appeal to the Land Commissioner, Hyderabad, but the appeal was rejected as time‑barred. ‑ Hence these 16 revisions.

Arguments advanced by the learned counsel for the parties were heard yesterday but, as the Court closed on account of the demise of the Speaker, the case could not be finished yesterday. It has been considered again today.

It is established that the land was tenanted and the Sub- Assistant Land Commissioner only reported that at the time of his making the report, it was untenanted. What he meant was that the tenants to whom the land in dispute had been sold, had surrendered the land as well as the Khatunis. This assertion was not supported by any statement made by the tenants nor were they heard by the Deputy Land Commissioner who passed. orders adversely affecting the interests of the petitioners without giving them a chance of putting their case before him.

The Land Commission has allowed such exchanges under the specific condition that the land should be untenanted. The intention is that through such exchanges, the tenants in possession, to whom the land has already been sold under the scheme approved by the Land Commission, should not be disturbed: It is, therefore, clear that exchanges can be allowed only in respect of an area which was either under the self‑cultivation of the declarant owner or was uncultivated and there was no tenant thereon. In this case, I find that the area was not only cultivated but was tenanted and the tenants had been sold the land in dispute in accordance with the scheme approved by the Land Commission. It was therefore incorrect to regard this area as untenanted. Since only untenanted area was allowed to be exchanged, the orders permitting this exchange were, therefore, inappropriate.

In these circumstances, I accept all the 16 revisions, set aside the orders passed by the learned Land Commissioner and the learned Deputy Land Commissioner and direct that the land in dispute shall be allowed to remain with the petitioners provided they pay the arrears of instalments due from them by the 31st of December 1963.

The respondents will, however, be allowed to get such area in exchange if they so wish, as was uncultivated or under their self‑cultivation and has not so far been utilized‑ under any of the schemes sanctioned by the Land Commission.

S. Q. Petitions accepted.

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