1984 PLP 403 (CLC)

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑ ‑‑ S. 14 read with Settlement Scheme‑Allotment‑Proposal and confirmation made without consent of claimant who failed to appear and allotment attaining finality‑Argument that since pro posal and confirmation made in absence of parties no allotment could be made in eye of law, held, not well‑founded. (b) Punjab Pre‑emption Act (I of 1913)‑ ‑‑ S. 4‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 14‑Pre‑emption, superior right of appellant due to his claim of ownership and co‑sharer of joint Khata‑Allotment of specified Khasra numbers by virtue of Displaced Persons (Land Settlement) Act, 1958 in favour of allottee creating a separate Khata out of joint Khata and appellant's claim of possessing superior pre‑emption right against vendee nullified‑Suit of pre‑emption, held, liable to fail. Muhammad Muzafar Khan v. Muhammad Yusuf Khan P L D 1959 S C (Pak.) 9 and Muhammad Anwar v. Malik Fazal Ellahi 1979 C L C 222 ref. (c) Civil Procedure Code (V of 1908)‑ ‑‑‑ S. 100‑Second appeal‑Question of fact‑No case of misreading or exclusion from consideration material pieces of evidence made out‑Reappraisal of evidence on question of fact, held, not required in second Appeal. JUDGMENT The fate of this appeal hinges on answer to a short question whether specified Khasra numbers when allotted by virtue of the Displaced Persons (Land Settlement) Act in favour of an allottee have the effect of creating separate Khata out of a joint Khata owned by the Muslims and non‑Muslims.

2. The brief facts of this case are that the appellants claim that they are joint Khatedars on account of the fact that before Independence the whole Khata was owned by Muslims as well as non‑Muslims. They further state that this Khata was never formally partitioned by any competent Court, authority or functionary. Consequently, the appellants submit that the Khata remains joint and they remain the co‑sharers in the Khata and thus they have a superior right of pre‑emption.

3. The learned counsel for the appellants has relied in support of his contention on the law laid down in a decision of the Supreme Court in re: Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (P L D 1959 S C (Pak.) 9). The supplemental argument of the learned counsel for the appellants is that a formal partition had not taken place as laid down under para. 15 of the Rehabilitation Settlement Scheme.

4. I have considered the submissions. The learned counsel for the respondents has brought to my notice a judgment of my learned brother Hon'ble Mr. Justice Mahboob Ahmad in R. S. A. No. 945/78 decided on 24‑4‑1979 reported as Muhammad Anwar v. Malik Fazal Ellahi (1979 C L C 222). The facts in the precedent case were that certain Khasra numbers had been allotted against a verified claim out of a joint Khata owned by Muslims and non‑Muslims. The view taken in the precedent case is that a claim to superior right of pre‑emption on the basis of being a co‑owner in such a joint Khata on the ground that it had not been partitioned by Rehabilita tion Authorities and that it thus continued to remain joint was not sound. It was held that the entry in R. L.‑II was to be taken as a partition of Khata under rule 7‑A of the Displaced Persons (Land Settlement) Rules, 1959. In such a situation, therefore, the plaintiff pre‑emptor would not be possessed of any superior right. The decision in Muhammad Muzafar Khan's case is distinguishable as it does not relate to the effect of evacuee character of properties and the Rehabilitation and Settlement Law on Khatas which were jointly owned by Hindus and Muslims before Indepen dence. This particular aspect of the matter properly arose in Muhammad Anwar's case and stands decided in the light of the law governing it.

5. The learned counsel for the appellants however draws my atten tion to Exh. P. 1 which is a copy of the R. L.‑II of the said Khata. H states that the proposal and confirmation was made in, the absence of the parties, therefore, according to him, this is no allotment in the eye of law The argument of the learned counsel overlooks the provisions of the Scheme which was amended in the year, 1963 whereafter full powers have been given to the Settlement Authorities to make allotments without con sent of the claimants if they failed to appear. Moreover, this allotment attained finality in law as it was challenged without success upto the High Court in writ petition. In these collateral proceedings, I am not going to permit indirect attack. Therefore, the argument in my view is not well‑based.

6. I have considered the precedent case and 1 am fully in agreement with the view taken by my learned brother which proceeds on sound legal principles. In this view of the matter, I find that the appellants are not possessed of any superior pre‑emptive right against the vendees. This concludes the fundamental aspect of the matter. The moment it is found that the appellants have no superior right of pre‑emption on the plea of being owners in joint Khata, their suit is liable to fail and there is no warrant for raising other issues which lose significance and the contrary course would amount to mere academic discussion. This is so for the reason also that it has been held concurrently by the two Courts below that the appellants' case fails as against respondents 3 and 4 who according to the appellants on admitted facts were owners in the estate. The appel lants enjoy no better status. There is no scope for interference with the findings in Regular Second Appeal. I am not required to reappraise`, evidence on questions of fact when no case of misreading or excluding from consideration material pieces of evidence is made out.

7. The learned counsel for the appellants says that he ought to be given a fuller hearing in this case on other aspects. With due respect to the learned counsel, I think the matter stands concluded and there is no scope left for further arguments on other issues.

8. The appeal is accordingly dismissed with costs. M. Y. H. Appeal dismissed.