1989 PLP 3042 (MLD)

Ch. Muhammad Hassan for Petitioner. Akhtar Asif Ali for Respondent. Date of hearing: 21st December, 1988. The dispute in this case relates to the inheritance deceased refugee, right-holder of village Nazar Lobana, Tehsil Ferozwalla District Sheikhupura. Abdul Ghani died in India and in respect of this, inheritance, the parties have been litigating in 'several rounds and in the final round, it was on 27-4-1971 that the Tehsildar Settlement with the powers of the Assistant Rehabilitation Commissioner (Lands) gave 2/3rd share to Mst. Fatima Bibi and Mst. Muhammadi, petitioners Nos. 5 and 6 and the remaining 1/3rd to petitioners No. 1 and 4 against this order, Mazhar Hussain respondent No. 1 preferred an appeal, whereupon Assistant Commissioner/Collector Sub-Division, Ferozwala, by his order dated 12-7-1973, set aside the said order dated 27-4-1971 and restored the order dated 7-5-1964 of the Assistant Collector, Grade-11 Ferozwala on Mutation No. 61 of village Nazar Lobana, according to which 100/160 of the inheritance of Abdul Ghani deceased devolved upon Mst. Fatima and Mst. Mohammadi, petitioners Nos. 5 and 6 herein, in equal shares. Mazhar Hussain, respondent No. 1 herein, and Habib Ullah, respondent No. 2 herein, got 5/160 in equal shares and Mst. Jannat, respondent No. 3 herein, since deceased. 9/160 share. Revision against this order was also rejected by the Additional Deputy Commissioner (General) /Settlement Commissioner (Lands) with powers of the Chief Settlement Commissioner (Lands), Sheikhupura, by order dated 30-6-1976.

2. It is contended by the learned counsel for the petitioners that the appeal filed by Mazhar Hussain, respondent No. 1, against the order dated 27-4-1971 was barred by time, inasmuch as, the period of limitation prescribed for an appeal under Rule 10 of the Pakistan Rehabilitation Rules, 1951, is 15 days from the date of the order appealed against. Here, the learned Settlement Commissioner, disposed of the objection by relying upon the Displaced Persons (Lands Settlement) Act, 1958, under which the period of limitation prescribed for an appeal is 60 days. It is submitted that the present case was a case of inheritance of a deceased refugee which was to be decided under the Rehabilitation Act, 1956, and the Settlement Scheme framed thereunder and not under the Displaced Persons (Lands Settlement) Act, 1958, therefore the impugned order dated 30-6?1976 of respondent No: 5 being misconceived on the question of limitation is liable to be quashed. The contention has no force. The question whether the appeal was preferred within time or not, is a question of fact. Neither a copy of the memorandum of appeal has been placed on the record of this Court, nor the learned counsel for the petitioners is able to point out the date on which the appeal was filed. This being so, this disputed question of fact cannot be entertained in these proceedings and is repelled accordingly.

3. It is next contended that the evidence on record establishes that Ibrahim, one of the residuaries, had pre-deceased Abdul Ghani and, therefore, respondents Nos. 1 to 3-A could not inherit any share and petitioners Nos. 1 to 4 were entitled to the residuary share to the extent of 1/3rd. The submission is that the Assistant Commissioner/Deputy Settlement Commissioner (Lands) while deciding the appeal by order dated 12-7-1973 misconceived the statement of Mazhar Hussain appellant/respondent No.l herein when it was recorded in his order that it was submitted on behalf of Mazhar Hussain that the lower Court erred in holding that Ibrahim was alive at the time of the death of Abdul Ghani which, he observed, was not correct. After referring to the finding of the Tehsildar Settlement that Ibrahim had died first and Abdul Ghani later on, the Assistant Commissioner/Deputy Settlement Commissioner (Lands)/Deputy Rehabilitation Commissioner (Lands), accepted the appeal instead of dismissing it. The appellate Court did not reverse the finding of the Tehsildar Settlement, nor referred to the evidence on record and as such acted illegally in setting aside the order dated 27-4-1971 of the Tehsildar Settlement and restoring the earlier order dated 7-5-1964 of the Assistant Collector Grade-I

1. Likewise, respondent No. 5 in the impugned order failed to take note of it and illegally upheld the appellate Court's order without determining the legality or otherwise of the order impugned before him on merit.

4. Be that as it may, the sole question which require consideration is whether Ibrahim had died before Abdul Ghani deceased or after his death. In case Abdul Ghani died before Ibrahim, then petitioners Nos. 1 to 4 will not inherit any share as residuary. In case Ibrahim died before Abdul Ghani deceased, then respondents Nos. 1 to 3-A would not get anything and petitioners Nos. 1 to 4 will be entitled to inherit 1/3rd share. Unfortunately, on this material question there is no finding by the Settlement Commissioner who dismissed the revision petition merely on the ground that the appeal filed by Mazhar Hussain, respondent No. 1, was within time.

5. This Court, in the exercise of Constitutional jurisdiction, cannot appreciate the evidence and give its own findings or substitute a finding recorded the Settlement Authorities. Since the revisional authority has failed to exercise by the jurisdiction which vested in him, in examining the merits of the case, I hold that the impugned order dated 30-6-1976 of respondent No. 5 is without lawful authority and of no legal effect.

6. The result is that the revision petition filed by the petitioners shall be deemed to be pending and the same shall be disposed of afresh, in accordance with law and in the light of the observation made in this order in paragraph 4 ibid, after providing an adequate opportunity of being heard to the parties.

7. The? parties are, therefore, directed to appear before the learned Member, Board of Revenue (S & R Wing), Punjab, Lahore, on 30-1-1989, to whom the case is, remanded for entrustment to the Notified officer, who shall dispose of the same within 60 days from the first date of hearing. To this extent, the writ petition is accepted, but there shall be no order as to costs. M.B.T./M-1369/L Case remanded.