1995 PLP 1697 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.‑‑‑The above appeal with the leave of this Court is filed to call in question the judgment of a learned Judge in Chambers of Lahore High Court dated 3‑8‑1991 whereby the learned Judge dismissed Writ Petition No.976‑R of 1978 filed by the appellants to challenge the order of Settlement Commissioner (Land) dated 4‑6‑1978 dismissing 4Mukhbari' application of the appellants. The relevant facts of the case are that zia‑ud‑Din deceased and her daughter Mst. Saeeda Fatima, who were residents of Kapurthala State, India, after migration to Pakistan in the year 1947 submitted their Claim Forms in respect of agricultural., land left behind by them in different villages of Kapu'thala State, India. The deceased Zia‑ud‑Din submitted 7 Claim Forms bearing Nos.1593; 2396, 2398, 10772, 10773, 10775 and 10777. Mst. Saeeda Fathna (respondent No‑1) also (Jed her claim bearing Form No.10778. The clams of Zia‑ud‑Din deceased was verified to the extent of 11409 P.I. Units while claim of Mst. Saeed Fatima was verified equivalent to 5330 P.I. Units. Claimant Zia‑ud‑Din died in the year 1950 and respondent No.1 was treated as his sole surviving heir. Respondent No.1 thus became entitled to the allotment of land both against her own claim as well as the claim lodged by her father Zia‑ud‑Din. Respondent No.1 was allotted land in Mauza Dipalpur, District Sahiwal in partial settlement of her claim. She was further allotted 362 Kanals 18 Marlas of land against 1601 P.I. Units on 19‑10‑1956 by A.R.C. Dipalpur, in village Dipalpur. By about the same time, one Shah Nawaz who was also a claimant and whose claim was transferred to Dipalpur from village Nizam Din, was also allotted some land in village Dipalpur. Respondent No.1 filed two appeals before Deputy Rehabilitation Commissioner (D.R.C.) in which besides challenging the allotment of land to said Shah Nawaz, she also agitated that the land allotted to her was scattered over 27 squares, and therefore, it was quite unmanageable. The D.R.C. (Land), Sahiwal by order dated 13‑5‑1957 accepted the pleas of respondent No.1 with the result the allotment made in favour of Shah Nawaz was cancelled and respondent No.1 was given the choice to select any, available evacuee land which was contiguous to her previous holding. The order of D.R.C. dated 13‑5‑1957 was challenged by the said Shah Nawaz in a revision application before the Additional Rehabilitation Commissioner (Addl. R.C) which was accepted on 31‑10‑1957 on the ground that the respondent No.1 being a local was not entitled to temporary allotment of land in village Dipalpur. The order of Addl. R.C. dated 31‑10‑1957 was challenged by respondent No.1 in Writ Petition No.529‑R of 1958 before Lahore High Court. However, during pendency of this Writ Petition, respondent No.1 entered into a compromise with the said Shah Nawaz and as a result of this compromise Mutations Nos.91 and 92 of 1959 were attested in RL‑11 Register. In view of the compromise in the Writ Petition, respondent No.1 sought implementation of the order of D.R.C. dated 13‑5‑1957 whereunder she was allowed to select any land which was contiguous to the land already allotted to her. Respondent No.1 was accordingly, allotted further land on R.L.11 in village Dipalpur, against her remaining units at Khatas Nos.592, 792, 826 and 876 on 24‑1‑1960 and 25‑2‑1960 respectively, by A.R.C. (Land). At this stage, the appellants who got their excess units of land transferred from Vehari District to Village Dipalpur, appeared on the scene and filed a `Mukhbari` application before the Settlement Authorities alleging that respondent No.1 having already been declared ineligible to seek allotment in Dipalpur by order of Additional R.C. dated 31‑10‑1957, the allotment of land made to her by A.R.C. (Land) by orders dated 24‑1‑1960 and 25‑2‑1960 were illegal. The `Mukhbari' application filed by the appellants was enquired into by Naib‑Tehsildar who reported ton 2‑4‑1960 that the allotment of land to the respondent No.1 was illegal and he recommended cancellation of the same. The Additional Revenue Assistant on 16‑7‑1960 agreed with the report of Tehsildar, and forwarded the same to D.R.C. (Land). Sahiwal, who cancelled the allotment of respondent No.1 on 19‑7‑1960. Respondent No.1 filed an appeal against the order of D.R.C. dated 19‑'7‑1960 before Additional SC (Land). The appellants who were party in the above proceedings defended the cancellation order on the ground that respondent No.1 was already held disentitled to the allotment of land under the order of Additional R.C. dated 31‑10‑1957 and the Writ Petition filed by her against the said order having been withdrawn the subsequent order of allotment of land in favour of respondent No.1. was illegal. This contention of the appellants was upheld by the Additional SC who dismissed the appeal on 19‑10‑1964. The respondent No.1 .then filed a Revision Application before the Settlement and Rehabilitation Commissioner which too was dismissed on 19‑8‑1965. The respondent No.1 finally instituted Writ Petition No.1594‑R of 1965 before the High Court of West Pakistan, Lahore Bench, in which besides challenging the orders of D.S.C., Additional Settlement Commissioner/and Settlement Commissioner, dated 19‑7‑1960, 19‑10‑1964 and 19‑8‑1965 respectively, she also challenged the order of Additional R.C. dated 31‑10‑1957. A learned Judge in chambers of the then High Court of West Pakistan accepted the Writ Petition filed by respondent No.1 and declared the order of Additional R.C. dated 31‑10‑1957 and all subsequent orders passed on its basis as without lawful authority and of no legal effect by judgment dated 22‑1.1‑1973. However, the case was remanded to the Settlement Commissioner‑(Land) with these observations:‑‑ "From the side of the respondent their learned counsel has argued that the departmental report is not correct and, as a matter of fact, the land with the petitioner is already excess inasmuch as the departmental report has failed to take into consideration the Mua6 and urban units of the petitioner and also existing allotments at Khata No.592. These are factual matters which need a thorough investigation and obviously this function ordinarily is not to be performed by this Court in the exercise of the writ jurisdiction. The only course in the circumstances is to send to case back to the learned Settlement Commissioner, Multan so that he may decide it afresh in accordance with law after hearing the parties who will be at liberty to raise all such pleas which they consider advisable to raise before him." Against the order of learned Judge in Chambers dated 21‑11‑1973 accepting writ petition 'of respondent No.1 the appellants preferred a petition for leave to appeal before this Court bearing No.147 of 1974 but the same was dismissed on 9‑12‑V

74. As a consequence of the order passed in Writ Petition No.1594‑R of 1.965, the matter was taken up by the Settlement Commissioner Ch. Majid Jamil who after summoning the entire record and going through the same dismissed the `Mukhbari' application filed by the appellants with these observations:‑‑ "(E) The entitlement of the respondent and of her father has already been checked and verified by the Central Record Office. The Naib‑Tehsildar of the Central Record Office who appeared before this Court has already placed a detailed statement showing the entitlement against such claim in respect of different estates. The details of the entitlement as worked out by the Central Record Office in that statement are reproduced as under :‑‑ (i) Bahbal Bahadur 3279 Units. (ii) Farid Sarai 2928 Units, (iii) Karahal Kalan 63 Units (iv) Allowal 501 Units (v) Jabowal 520 Units (vi) Shatabgarh 1180 Units (vii) Passan Qadeem 1710 Units Total 10,242 Units Total allotment 7,302 Units Remaining allotment: 2,940 Units The above pro forma shows that 2940 units out of the entitlement of respondent are still lying surplus. As far as paras. 56, 57 of 57‑A is concerned, that does not help the petitioners, the land attached to Khanqah Shah Chiragh has been found only equivalent to 63 units in village Karahal Kalan. Even if the respondent is not given any land in lieu of these 63 units even then there is no excess land with respondent. Chahi Bashi 447 of units given to the respondent by Cr.R.O. officials even if denied to the respondent will not matter much. The entitlement in the name of respondent and her father to the extent of 10242 P.I. Units stands already verified by the Central Record Office and duly confirmed by the Chief Settlement Commissioner himself. The statement filed by the Naib‑Tehsildar, Central Record Office has been found to be correct. In such circumstances no excess allotment is detected in the name of the respondent. The Mukhbari petition having no merits stands dismissed". Against the order of Settlement Commissioner dated 4‑6‑1978, the appellants filed Writ Petition No.976‑R of 1978 before the Lahore High Court which was dismissed by the learned Judge in chambers by the impugned order dated 3‑8‑1991 against which leave was granted by this Court to consider, inter alia, the following submissions made by the appellants:‑‑ "In support of this petition it is inter alia contended that at the time when they had their units transferred to Dipalpur there was no claim lying unsatisfied in that village; respondent No.1 had voluntarily got her units transferred to Sheikhupura and as such the reservation made in their favour did not suffer from any infirmity; consequently, the land which stood reserved for them could not be transferred to her.

6. This and other contentions raised in support of this petition need examination. Leave to appeal is granted. Security for costs Rs.10,

000. In the meanwhile, the land in dispute may not be alienated by the respondent." In support of the appeal, the learned counsel for the appellants has raised the following contentions before us. It is firstly, contended by the learned counsel for the appellants that the claim verified in favour of respondent No.1 and her father was in respect of `Muafi' land and against such a verified claim the allotment of land could not exceed 500 P.I. Units as provided in paragraph 57 of West Pakistan Rehabilitation and Settlement Scheme of 1956 (hereinafter to be called as `the scheme only) and as such allotment of land to respondent No.1 to the extent of her full entitlement was illegal and without justification. The next contention of the learned counsel for the appellants is that the excess units of the appellants were transferred for settlement, to village Dipa1pur by the Settlement Authorities on 30‑10‑1959. While the excess units of respondent No.1 were retransferred to village Dipalpur in January 1960, therefore, on the date the excess units of appellants were transferred to Dipalpur, respondent No.1 had no pending units of claim for satisfaction at Dipalpur and as such the appellants had a preferential, right‑ to get their units satisfied at Dipalpur as against the claim of respondent No.1. The learned counsel for the respondents on the other hand supported the judgment of the learned Judge in Chambers. The first point for determination in the present appeal, therefore, is, whether the claim of respondent No.1 was in respect of only `Muafi' rights or she was full owner of the claimed land. The appellants in support of their contention that the claim of respondent No.1 related only to `Muafi' tights has relied on Jamabandi in respect of Mauza Farid Sarai, Shitabgarh and Karahal Kalan. The learned Settlement Commissioner (Land) in his order dated 4‑6‑1978 came to the conclusion that the entitlement of respondent No.1 and her father to the extent of 10,242 units already stood verified from the Central Record Office which was duly confirmed by the Chief Settlement Commissioner. It was further held by the learned Settlement Commissioner that out of these units only 63 units were shown as property of Khankah, and therefore, if these 63 units 'are taken out even then respondent No.1 was entitled to the satisfaction of remaining units in Dipalpur being a temporary allottee in that village. We have gone through the 3 jamabandies produced by the appellants before us which relate to Mauza Farid Sarai, Shitabgarh and Karahal Kalan. it is pertinent that in respect of Mauza Farid Sarai the verified claim of respondent No.1 is to the extent of 2928 units. In the column of "naam malik ala ahwal" in Jamabandi relating to the land abandoned in Farid Sarai, the entries read as follows‑ The learned counsel for the appellants has laid much stress on the endorsement wade in the remarks column of the land held in Mauza Farid Sarai which is to the following effect:‑‑ The statement of `Patwari' who was examined on 11‑6‑1974 before the Officer on Special Duty in the Central Record Office also shows that in column No.1 and column No.4. of the Khewat in respect of‑ Farid Sarai, the name of "malik adna" is mentioned as Mst. Niaz Begum 1/2, Muhammad Zia‑ud‑Din son of Syed Sardar Ali Shah 1/2. He further stated that as there was no entry in column " malik adna ", therefore, Settlement Department had treated both " malik adna ", and " malik ala " as the same person and this fact has also been confirmed from the record which was received from India. This witness further stated that in Khewat No.109 which relates to `Shamlat', the land is entered in the ownership of Zia‑ud‑Din son of Syed Sardar Ali Shah. In cross examination, this witness stated that in villages where there are "malkan" of land `pedigree‑table of ` malikan ala ' is prepared and where there are no ` malik ala ' pedigree table of ` malik adna ' is prepared. He also stated that if there are both ` malik ala ' and ` ' malik adna ' then separate pedigree‑tables are prepared. He clarified that as there was no entry in the column of " malik adna " and the pedigree‑table received from India only related to ` malik ala ' therefore, it was accepted by the Settlement Department that ` malik adna' and ` malik ala' are the same person in respect of this land. Similarly, in the Jamabandi in respect of land abandoned in Mauza Shitabgarh the entries in the Jamabandi in column " naam malik ala ahwal " read as follows:‑‑ However; in respect of Jamabandi of Mauza Karahal Kalan in nakal fard-e-haqeeqat in the column," naam haqdar ma ahwal"the following entry appears:‑‑ It is, therefore, quite clear that except the land abandoned in Mauza Karahal Kalan which was entered in the ownership of Khankah Shah Chiragh, rest of the land was entered in as the personal property of Niaz Begum widow of Zainul Abdeen 1/2, and Muhammad‑ Zia‑ud‑Din son of Sardar Ali Shah 1/2 by way of inheritance. The learned Settlement Commissioner, therefore, rightly recorded the conclusion that the land abandoned by the deceased Zia ud Din and her daughter Saeeda Fatima respondent No.1, in India except the land in village Karahal Kalan, was their personal property, in respect whereof inheritances were recorded from time to time as and when the holders of the land died. The fact that the land revenue of these lands were remitted by the authorities because the income arising from it was applied for charitable purposes, did not transfer the ownership right in these lands in favour of charitable trust "roza chiragh shah". If the right of ownership in these lands was transferred to " roza chiragh shah ", as a consequence of remission of land revenue, as contended by appellants, then in the column of "naam malik ahwal " the name of trust would have appeared instead of names of Mst. Niaz Begum and Zia ud‑Din. We are, therefore, of the view that the, endorsement in the remarks of Jamabandis showing that the land revenues in respect of the lands held by Zia ud‑Din (deceased) and his daughter respondent No.1 in villages Farid Sarai and Shitabgarh was remitted, by the authorities did not have the effect of making these lands as `Muafi` land. A reading of paragraph 56 of the Rehabilitation Scheme will make it clear that `Muafi' lands were those which were attached to a charitable, religious or educational trust and it was in respect of claims of such land that the limit of 500 P.I. Units was fixed under paragraph 57 of the Scheme. It is significant that under paragraph 57, the claim in respect of `Muafi' land could be submitted by its manager in the form which is prescribed under the Scheme. In the present case, it is nobody's case that Zia‑ud‑Din and her daughter respondent No.1, had submitted their claim as manager of Khankah, Rooza Chiragh. They filed their claim as owners of these lands which was duly accepted. The learned counsel for the appellants also counsel for the appellants also relied on the order of Officer on Special Duty (O.S.D.) dated 30‑6‑19'75 in order to show that the claim verified in favour of respondent No.1 and her father late Zia‑ud‑Din related to `Muafi` land. The contention of the learned counsel is totally misconceived. The O.S.D. in his order dated 30‑6‑1975 simply observed that the rights of the claimants are to be verified under paragraph 29 of the Scheme in accordance with the entries in the special Jamabandis received from the prescribed areas of India. It was further observed by the O.S.D. in his above order that all notes recorded in the remarks column of special Jamabandi be also mentioned in the appropriate column of entitlement certificate issued to respondent No.1. Accordingly, fresh entitlement certificates were directed to be issued in accordance with the entries in the Jamabandis received from India. The Settlement Commissioner, who dealt with the case after its remand from High Court exhaustively dealt with this aspect of the case and after considering the original record, reached the conclusion that except 63 units of land in village Karahal Kalan, which was entered in the name of Khankah Chiragh, rest of the land was entered as the personal properties of Zia‑ud‑Din and respondent No.1 having been inherited from their ancestors, in the Jamabandi and Khewat received from India. We, therefore, do not agree with the contention of the learned counsel for the appellants that the verified claim of respondent No.1 was mainly in respect of `Muafi' land and, therefore, allotment could not be made to her in excess of 500 P.I. Units, as laid down in paragraph 57 of the Settlement Scheme. The next contention of the learned counsel for the appellants is that the time the excess units of land of the appellants were transferred from Vehari to Dipalpur District, the claim of respondent No.1 was not pending there and as such appellants were entitled to get their claim satisfied and settled in Dipa1pur in preference to the claim of respondent No.1 vyhose units were retransferred to Dipalpur subsequently. The learned counsel is unable to point out any material on record to show that respondent No.1 after satisfaction of her claim got her excess units transferred from Dipalpur to some other place. On the contrary, she was all along agitating for settlement of her entire claim in Village Dipalpur and in 1957 when one Shah Nawaz was allotted land in Dipalpur, she challenged that allotment on the ground that she being a temporary allottee was entitled to preference over the said Shah Nawaz. Paragraph 9‑A of the Settlement Scheme clearly provides that if a temporary allottee gets his claim transferred or retransferred in a village where he already holds allotment, before allotment of the area in question is finalised in favour of some other claimant under the Scheme, the original temporary allottee shall have a preferential claim for settlement of his claim against that land. From the record before us, it is quite clear that the land allotted to respondent No.1 in Village Dipalpur in satisfaction of her claim was neither allotted nor its allotment was finalised in favour of appellants before its allotment to respondent No.1. It is an admitted position that respondent No.1 was a temporary allottee in Village Dipalpur and, therefore, she had a preferential right for satisfaction of her claim in that village. a he learned counsel for respondent No.1 has drawn our attention to the document at pages 148 and 149 of the Paper Book which shows that the appellants were originally allotted land bearing Khata Nos.70, 71 and 72 which respondent No.1 never claimed for allotment. It is, accordingly, contended by respondent No.1 that at no time, the land allotted to respondent No.1 was proposed to be allotted to the appellants before its allotment 'was finalised in favour of respondent No.1. The learned Settlement Commissioner as well as the learned Judge‑in‑Chambers, therefore, rightly held that the allotment in favour of respondent No.1 was validly made and that the Mukhbari' application made by the appellants had no merits. No case for interference with the impugned judgment of the High Court is made out. The appeal is, accordingly, dismissed but we will make no order as to costs in the circumstances of the case. M.BA./A‑1307/S Appeal dismissed.