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Constitutional Petition D‑114 of 1972, decided on 30th November, 19 1.

Art. 199‑Ends of justice‑Relief under Constitutional jurisdiction for‑‑‑Co‑sharers (respondents Nos. 4 and 5) in survey numbers granted to deceased predecessors‑in‑interest of petitioners and entitled to Mobag right‑Member, Board of Revenue maintaining appellate order in revision not only on ground of failure to raise objection of limitation before Additional Commissioner but also on merits‑Held, appellate order stands merged in revisional order‑Grant of relief under such circumstances under Constitutional jurisdiction not to result in mis carriage of justice but to foster ends of justice.

Kadir Bux v. Board of Revenue, West Pakistan, Lahore and another 1981 C L C 15 74 ref. .

Nooruddin Sarki for Petitioners.

S. H. Rizvi, Ali Ahmad Patoli ‑ and Ibrahim Memon, A. A: G. for Respondents.

Date of hearing : 30th November, 1981.

This petition is directed against the orders dated 27‑I 1‑1968 and 13‑10‑1971 passed by the learned Additional Commissioner, Hyderabad Division and the learned Member of the Board of Revenue,‑Sind respectively, in Appeal No. nil and Revision No. 258 of 1968‑69 respectively.

The brief facts leading to the filing of the above petition are that in May 1961 the Revenue Officer G. M. B. at Hyderabad had issued for public sale a schedule, showing the detail of the Government land available in each Taluka of Tbatta Division, under Ghulam Muhammad Barrage Project for permanent Saleor lease‑ The instructions issued alongwith the above schedule called upon the old Haris of the Deb and also upon the claimants of Mohag rights over the land to apply for such land in advance. It has been averred that after the publication of the above schedule an open Kutchery was held and deceased Ismail was granted Survey No. 292, measuring 9‑7 acres, situated in Deb Halath, Taluka Thatta, from Kharif 1961‑62. It has been further averred that in the year 1963‑64 such Kutcheries were also held and deceased petitioner Ibrahim was granted Survey No. 329 alongwith two others, measuring 12‑15 acres situated, in the same deh. It has also been aver red that deceased Ismail was granted the above land as a Hari, whereas deceased Ibrahim was granted the above land in the capacity of a small Khatedar/ Zampindar. It seems that respondents Nos, 4 and 5, who are brothers inter' se filed a joint, appeal against the aforesaid two grants in favour of aforesaid two deceased, who were also inter se brothers and claimed their share in the above granted land as the holder of Mohag rights. The above appeal was allowed by the learned Additional Commissioner, Hyderabad through his order dated 27‑11‑1968. The petitioners being aggrieved by the above order filed the aforesaid revision, which was dismissed by the aforesaid order dated 13‑10‑1971. The petitioners being aggrieved by the above two orders have filed the present petition.

2. In support of the above petition Mr. Nooruddin Sarki the learned counsel before us made following submissions

(i) That the appeal filed by respondents Nos. 4 and 5 was admittedly time‑barred and, therefore, it was incumbent upon the learned Additional Commissioner to dismiss the same under section 3 of the Limitation Act.

(ii) That in any case the joint appeal could not have been filed in respect of the two separate grants made in different Kutcheries at different points of time.

However, on merits the learned counsel for petitioners concedes that respondents Nos. 4 and 5 being the co‑sharers in the survey numbers mentioned in the petition with the deceased petitioners are entitled to Mohag right. It is true that the appeal filed by respondents Nos. 4 and 5 was thus‑barred and if the matter would have rested before the appellate authority, the above objection as to the limitation might have been fatal. Since the matter was also examined by the Revisional authority i. e. Member of the Board of Revenue of Sind, who admittedly could examine the matter under suo motu revisional power at any time irrespective of the limitation. As the learned Member of Vie Board of Revenue has not only maintained the appeal late order on the ground that the petitioners had failed to raise objection of limitation before the learned Additional Commissioner, but also on merits after examining the respective claims of the parties. In our view the appellate order stands merged into the revisional order. It may also be observed that granting of relief under the Constitutional jurisdiction is a matter of discretion, which may not be exercised for cogent reasons. One of the reasons for declining to exercise the above jurisdiction, which can be pressed into service is that such exercise will result into miscarriage of justice instead of fostering the ends of justice. If we were to allow the above petition on the ground that the appeal was time‑barred, we would be depriving respondents Nos. 4 and 5 their Mohag right as co‑sharers with the deceased petitioners. In this connection reference may be made to the case of Kadir Bux v. Board of Revenue, West Pakistan, Lahore and another (1981 C L C 1574), in which a Division Bench of this Court (to which one of us was a party), has taken somewhat similar view which we are inclined to take in the instant case.

3. For the aforesaid reasons we dismiss the petition but with no order as to costs.

K. M. A. Petition dismissed.

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