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Case No.SROR-331 of 1984-85, decided on 23rd November, 1986.

---S. 44--Entries in record-of-rights--Dispute relating to--Respondents" claim that their predecessor had purchased disputed property from vendee allottee not borne out from record--Respondents" predecessor had purchased such property from that vendee when there was no entry in revenue record in the name of such vendee--Respondents" predecessor, therefore, could not purchase better title than held by vendee himself, who had no title m disputed land--Alleged sale in favour of respondents" predecessor was thus illegal and entries made on basis of alleged sale were illegal ab initio and were thus cancelled.

---S. 44--Dispute relating to entries in record of rights--Petitioner was found to have been allotted land in excess of his entitlement--Petitioner conceding to that position and praying that he was ready to surrender land in excess of his entitlement but prior to that such choice he obtained from him--Deputy Commissioner was directed to obtain choice from such petitioner and ensure that entry in the name of petitioner be revised in the revenue record to the extent of his entitlement.

---Ss. 44 & 164--Entries in record-of-rights--Dispute relating to--Petitioner claimed that speed survey numbers were not mutated in his name on the ground that such survey numbers did not stand in the name of non-Muslim evacuee--Deputy Commissioner was directed to verify correctness of ownership/Khata relating thereto--Such survey numbers stated to be lying vacant without ownership should be verified and if found to be so, should be shown as "Nakabub" in new record-of-rights.

Maroof Ali Khan for Petitioners.

Bhimraj for Respondents.

This is a revision petition filed against the order of the learned Additional Commissioner, Hyderabad Division, Hyderabad dated 11-2-1985 whereby he rejected the appeal of the petitioner regarding entries in record of rights in respect of S.Nos.457, 490 to 496, 548 to 553,1187 to 571 to 574, 576, 477 and 627 of Deh Pir Jhariyoon, Taluka Mirpur Sakro.

2. Facts of the case are contained in the impugned order of the Additional Commissioner and need not be repeated.

3. Heard the counsel for the parties and perused the record.

4. The counsel for the petitioners argued as under:-

(i) That the disputed land was allotted to claimant Abdul Karim father of the petitioner on 6-8-1959 in satisfaction of his claim and such parchi Taqseem was also issued in his favour. These S.Nos. were formed out of UA.Nos.151 and 102 in 1942. Produced photostat copy of Ghat Wadh Form.

(ii) That one Chiragh Ali was also allotted land bearing UA. Nos. 102 and 151 of the same Deh on 15-8-1959 i.e. subsequent to the allotment of the petitioner"s father. The possession of the land was delivered to the petitioner"s father on 10-12-1959 and since then the petitioner is in possession of the disputed land. Produced photostat copy of the Mashirnama delivering possession to the petitioner"s father.

(iii) That the petitioner had paid the Rehabilitation fee on 15-7-1964 (produced photostat copy). As the petitioner"s litigation regarding double allotment was going on with M/s. 2;ubeer and others (who are not parties here) the matter ended in 1974 and the petitioner"s allotment being earlier and valid was held good. Accordingly the mutation certificate date 20-6-1974 was issued in favour of the petitioner and subsequently on the basis of this mutation certificate the entries in record of rights were also effected in favour of the claimant Abdul Karim whose descedants are the petitioners.

(iv) That since the abovenamed Chiragh Ali was allotted the same land in shape of UA.Nos. 102 and 151 subsequent to the petitioner who by statement dated 4-8-1964 before the Mukhtiarkar sold the entire area to Saifuddin. The wording of the statement are that he sells his entire area in Tappa Pir Jhariyoon and Gajo which is on his khata to the said Saifuddin for the consideration of Rs.20,000 produced photostat copy of the statement.

(v) That the entries in the record of rights were effected in the name of claimant Chiragh Ali vide entry No.126 dated 17-6-1965 and on the same day the entry had been effected m the name of Saifuddin purchaser vide entry No.127 dated 17-6-1965.

(vi) That the Deputy Commissioner Thatta vide order dated 16-11-1983 had cancelled the entries in the name of the petitioner which were also effected under the order of the Deputy Commissioner contained to letter No.RR/96, dated 2-6-1979 as such the Deputy Commissioner was not competent to order for cancellation of the entries which were effected on the order of his predecessor.

(vii) That the Revenue Authorities are very much competent and the powers with regard to keeping correct entries vests with the Revenue Authorities. In this case also the highest Revenue Authority has to see whether the entries kept in Record of Rights in respect of the particular land is in consonance with the record or not.

(viii) That the entries in the name of the respondents had been kept in record of rights on the basis that their father had purchased the disputed land from Chiragb Ali on the strength of the statement dated 4-8-1964. But the record shows that the disputed land or any other land of Tappa Pir Jhariyoon was not on the Khata of Chiragh Ali in record of rights on 4-8-1964. Therefore Chiragh Ali was not the owner of the disputed land on 4-8-1964 and 5;e sale ab initio was void and all the subsequent changes based on void order become void. If the foundation is void the super structure built on this foundation has no foundation and falls down.

(ix) That the entries of the disputed land had been brought in record of rights on 17-6-1965 in the name of Chiragh Ali that too erroneously and without the basis of any document. As there is no allotment order even in the name of Chiragh Ali, there is no clearance certificate in the name of Chiragh Ali.

The counsel for tht respondents argued as under:-

(a) That the disputed land was allotted to Chiragh Ali in the year 1959 in satisfaction of his claim and the entries were effected in record of rights in his name.

(b) That the respondents are the legal heirs of Saifuddm who purchased the disputed land from Chiragh Ali to the year 1964.

(c) That the entries in record of rights were effected in the name of deceased father of the respondents vide entry No.127 dated 17-6-1965. After demise of their father entries were effected in the name of the respondents in record-of-rights in 1973 vide entry No.127/144, dated 25-2-1973 and from the beginning they are in possession of land.

(d) That in 1982 when the respondents came to know that the entries in their name have been altered and the names of the petitioners were kept they approached the Deputy Commissioner who after hearing the parties revised the entries in favour of the respondents.

(e) That the entries which were made in the name of respondents long back were altered without notice and providing the chance of hearing to respondents.

(f) That the Settlement law had been repealed in June 1974 whereas the clearance certificate had been issued on 20-8-1974 as such the issuance of clearance certificate is also illegal.

(g) That there are concurrent findings in favour of the respondents.

(h) That long standing entries are not to be disturbed by Revenue Officer and should be left for the determination of the Civil Courts.

(i) That the petitioner did not challenge the allotment of Chiragh Ali all along and remained silent.

(j) That Chiragh Ali had paid the mutation fee and clearance certificate was issued and this fact was verified by the Deputy Commissioner as is evident from the order of Deputy Commissioner, dated 16-11-1983.

6. The counsel for the petitioner replied that the clearance certificate was issued in favour of claimant Abdul Karim ancester of the petitioners on 20-6-1974 and the certificate issued on 20-8-1974 was in confirmation of the earlier certificate. Even according to Section 4 EP & DP (Repealed) Act, 1975, all documentary work will be attended by the authority under Board of Revenuc Province of Sind. The counsel further stated that no allotment in favour of Chiragh Ali was made, if there had been any it was without the notice to the petitioner. The petitioner bad no notice about mutation of the disputed land in favour of Chiragh Ali. So far possession is concerned it is with the petitioner for which the petitioner produced Mashirnama dated 10-12-1959. The respondents have failed to produce allotment order or receipt of mutation and clearance certificate issued in favour of Chiragh Ali.

7. I have considered the arguments of the counsel of the parties and perused the record in detail. Perusal of the Rehabilitation file of Chiragh Ali produced by Mr.Karim Bux Clerk of Deputy Commissioner Office, Thatta shows that Mir Chiragh Ali s/o Mir Farkhand Ali, Mir Riayasat Ali s/o Mir Chiragh Ali and Mir Afzal made application dated 24-6-1959 to the Deputy Commissioner requesting therein that Evacuee land measuring 600 acres situated in Deh Pir Jhariyoon and Kari to Tapo Gajo had been leased out to them for 5 years from 1955-56 should be reserved for them and may not be utilized in satisfaction of claim as they except receipts of their own verified claim and they wanted to take up this land in satisfaction of their claim when received. The case was forwarded by the Mukhtiarkar to Deputy Commissioner, Thatta who submitted the papers to the Additional Rehabilitation Commissioner, Hyderabad and Khairpur Divisions (Mr.Anwar Adil) who perused the papers and filed the same and informed the applicants under letter No.Reh/13/h4BRS/59, dated 19-8-1959, that the case had been filed after perusal. Again on 15-8-1959, an application for satisfaction of balance units of Mir Chiragh Ali in Q-P-R.V. No.1688 had been received from district Nawabshah with the request that excess units 10351 equivalent to 517-22 acres as indicated in the certificate issued by the Rehabilitation Mukhtiarkar be settled in District Thatta.

8. There is a letter of Deputy Commissioner, Thatta No.R/R-16047, dated 23-8-1962 in the file whereby he informed the Deputy Commissioner/Deputy Rehabilitation Commissioner, Sukkur with a copy to Deputy Rehabilitation Commissioner, Nawabshah that the allocation order of Mr. Chiragh Ali has not been received from the Deputy Commissioner, Nawabshah where the claimant held the first allotment as required by paragraph 16(1) of the said" Scheme (Scheme of scrutiny of claims). Further, action in the matter will be taken on receipt of allocation order in favour of Chiragh Ali. The satisfaction claim could not be intimated for want of allocation from Nawabshah. There is letter dated 10-1-1964 of Mukhtiarkar Sakro in the file of Deputy Commissioner. The Mukhtiarkar by this letter called upon Mir Chiragh Ali to arrange to pay Rehabilitation and Settlement fee at rupees 10 per 100 units as he had been holding allotment of lease to the extent of 518-21 acres in part settlement of Q.P.R.V. He had been further called upon to produce his MRVA claim form within seven days. This all goes to prove that at least till 10-1-1964 a formal order of allotment in favour of Mir Chiragh Ali was issued as the claimant was holding the lease of the land only.

9. The Mukhtiarkar Mirpur Sakro under his letter No.2474 dated 29-8-1964 has requested the Deputy Commissioner inter alia that the original O.P-R. and Khatoni of land allotted to Mir Chiragh Ali in Nawabshah District may be called for so that the figures of units to be allotted to him in taluka Mirpur Sakro may be worked out and allotment finalized accordingly. This also show"s that even upto 29-8-1964 allotment had not been finalized in favour of Mir Chiragh Ali. The Deputy Commissioner, Thatta has directed vide letter dated 15-9-1964 that Mir Chiragh Ali shall be allowed to retain the land already allotted to him (temporarily allotted to him) in satisfaction of surplus certificate after complying with the requirement contained in the letter of Settlement and Rehabilitation Karachi No.Reh/6/GN-General/61, dated 23-7-1962.

10. In pursuance of the above letter of Deputy Commissioner, the Mukhtiarkar issued letter No.632, dated 22-9-1964 to Tapedar Pir Jhariyoon, Tapo Gujo which is translated as under:-

Claimant Mir Chiragh Ali s/o Mir Farkhand Ali had been allotted land detailed below finally under claim Parchi Taqseem No.174. Therefore, you verify the possession of the land and after that the land be transferred to Central Government and then it be mutated in the name of abovenamed claimant. Before doing this the record be produced personally for our verification.

Nos. 1010 to 1020, 1043 to 1056,1064 to 1073, 1074 to 1079, 1095 to 1099, 1103 to 1110, 1118 to 1126, 1129 to 1139, 1145 to 1148, 1163, 1164 and 151/20-00 acres 102/20-00 acres, 130/10-00 acres and 241/8-00 acres.

Although it is not final order for making entry in Revenue Record yet it does not contain the S.Nos. in dispute.

11. The respondents claimed that their ancester purchased the dispute land from Mir Chiragh Ali on the basis of statement dated 4-8-1964 and the entry in the name of Saifuddin was effected on 17-6-1965. The statement whereby the Saifuddin said to have purchased the land from Chiragh All does not specify the S.Nos. m dispute and moreover the said S.Nos. were not entered in the name of Mir Chiragh All on the day it was purchased. From the facts discussed above it also reveals that the land in dispute had never been allotted to Mir Chiragh Ali. He was holding temporary lease of the land which also did not include the land in question as is evident from the preceding paragraphs. It is claimed that Mir Chiragh Ali was allotted land in shape of UA. Nos.102 and 151 in 1959 but the ghat wadh form shows that these S.Nos. were surveyed in 1942 and the disputed S.Nos. were formed. Therefore, the question of allotment of Mir Chiragh Ali in 1959 in the shape of UA.No. did not arise. Syed Mohiuddin s/o Syed Saifuddin who was appearing for self and as attorney of other respondents and his counsel were particularly directed and provided chance to produce the documents viz. allotment order, clearance certificate and receipt of payment of Rehabilitation fee in favour of Mir Chiragh Ali but till now neither the respondent nor his counsel produced the documents. I have provided sufficient time to taluka office Sakro to produce voucher on the basis of which entry dated 17-6-1965 was kept in the name of Chiragh Ali in respect of the land involved in the petition. But they failed. Munshi Haider Ali Tapedar Revenue has given in writing that this voucher is not available on the record. It is also evident from the order of Deputy Commissioner bearing No.R/r 1759 dated 7-2-1955 that Mir Chiragh Ali and others were holding temporary lease of S.Nos. 1010 to 1172 and 342 to 372 total area 600 acres in Deh Pir Jhariyoon and Kotri. This also does not include the disputed area. I have also perused the Rehabilitation record. There is neither proposal of land in favour of Mir Chiragh Ali which is made by the Mukhtiarkar nor there is confirmation of Deputy Rehabilitation Commissioner. There is no entry of Mir Chiragh Ali in L.R.II therefore question of issuance of Parchi Taqseem did not arise.

12. It is crystal clear from the above that disputed land had not been allotted to Mir Chiragh Ali in 1959 as claimed by the respondents. The entry in the name of Mir Chiragh Ali though subsequent to the date of purchase by father of the respondents is managed one and has not been entered on the basis of any valid order/document. It will be pertinent to point out that Saifuddin had purchased I .A. the land on 4-8-1964 when there was no entry in the name of Mir Chiragh Ali in the Revenue Record. Therefore under law deceased Saifuddin could not purchase better title than held by Mir Chiragh Ali who had no title in the disputed land. As such the sale was illegal and further entries made on the basis of sale are illegal ab initio and are cancelled.

13. As regards petitioners, clearance certificate issued in the name of Abdul Karim s/o Muhammad Hussain shows that he was permanently allotted an area of 139-12 acres (2786 PI Units). Perusal of file shows the entitlement certificate to Q.P.R.V.No.20326/636 in favour of Abdul Karim for 3168 PI units including 816 units of Karachi land received in the district. After allowing 82 units on account of Chahi total PI units comes to 3250. The claimant Abdul Karim had held allotment of 696 units in taluka Mirpurkhas, District Tharparkar but he desired that all the units be satisfied in district Thatta. The Additional Rehabilitation Commissioner however directed that the land allotted in Tharparkar cannot be cancelled. In addition to above the 420 PI units he got transferred from Thatta to Karachi due to interchange in boundaries of these districts. Therefore, the Deputy Commissioner had desired vide his order No.R/2478 dated 29-8-1959 that the claimant should be allotted 1116 PI units (696 + 420) less in taluka Mirpur Sakro i.e. petitioner was entitle to the extent of 2134 PI units but as against that he had been allotted land to the extent 2786 PI units. This shows that the petitioner had been allotted 652 PI units in excess to his, entitlement. The counsel for the petitioner has conceded to this position and prayed that he is ready to surrender land to this extent but prior to that such choice be obtained from him. The Deputy Commissioner is, therefore. to obtain choice from the petitioner and ensure that the entry in the name of petitioner be revised in the Revenue Record to the extent of his entitlement i.e. 2134 PI units.

14. However, counsel for the petitioner stated that from the disputed land S.Nos.746, 747, 798, 799, 103, 104, 108, 353, 431 and 520 total area 21-38 acres were not mutated in the name of petitioner on the ground that these S.Nos. did not stand in the name of Hindu Evacuee therefore could not be changed in the name of the petitioner. It is seen from the record that out of this land S.Nos.746 and 747 stand ip the name of Lai Muhammad s/o Nazar Muhammad Jokhio. S.Nos. 103 and 104, 108 are in the name of Usman s/o Jumo. It is not known how these numbers have been mutated in the name of these persons. The Deputy Commissioner should verify the correctness of ownership/khata of these persons. S.Nos. 353 and 431 are said to have gone to one Latif in claim and Amon s/o Allah Dino granted by Barrage Department respectively. S.Nos.798, 799 and 5."..0 C are said to be lying vacant without ownership. This should also be varified by the Deputy Commissioner and if it is so it should be ensured that these numbers are shown as Nakabuli in new record of rights.

15. In the result revision petition is allowed subject to above observations.

AA./295/R Revision allowed.

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