1989SCMR426 (PLP)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted in these three appeals arising out of the same order of the High Court of Sind and Baluchistan dated 23rd of August, 1976 to examine whether it was not a case where material evidence has been ignored altogether by the Additional Settlement Commissioner and the High Court had refused to interfere in the Constitutional jurisdiction on the ground that a finding of fact had been recorded. One Munshi (CA. No.K‑49/77), Mst. Hafizan (CA. No.K‑50/771 and Nasib Ali, NAWaz Ali (CA.No.K‑51/77) had migrated from India and had submitted claim forms which had been duly verified and their verification and entitlement is not open to any question, doubt or contest. The appellants were. temporary allottees of agricultural land in deh Joonajani, Taluka Shahdadpur in the Province of Sind and claiming to be the sole surviving heirs of the respective claimants got the Mutation of inheritance attested in their names and got their temporary allotments adjusted against the verified claims. The enforcement police staff attached to the Rehabilitation Department on an application of the informer had moved against the allotments held by the appellants and a part of the inquiry into the matter was held by the Settlement Commissioner West Pakistan and the evidence and statements had been recorded by him after which the matter was transferred to the Additional Deputy Commissioner (Land) Sanghar for disposal. The reasoning adopted by the learned Additional Deputy Commissioner would appear from the following observations made in the order in sequence as hereunder:‑ "(i) I have deeply considered the present position of these cases and have gone through the entire record and evidence and fairly conclude that Naik Muhammad and Ghiasuddin, who have got the claims of the respondents Nasib Ali, Nawab Ali, Mst. Hafeezan and Munshi settled in this District are playing fraud with the Settlement Department and their hands are not clean." "(ii) They have no locus standi to keep the land allotted against the abovementioned four claims in their possession any longer. Had they been the actual legal heirs and successors‑in‑interest or legal representatives of the deceased claimant Nasib Ali, Nawab Ali, Munshi and Mst. Hafeezan, they could have easily got the succession of the deceased claimants decided in their favour. during a very long passed period of about two to 12 years'." "(iii) Moreover, the respondents' representative Naik Muhammad in spite of being awarded sufficient opportunity did not adduce any material evidence in support of his .case." "(iv) What can be presumed from the conduct of Naik Muhammad is that he has no reliable evidence to produce in his cases and simply wants to keep the fraudulent allotments intact for a longer period." He concluded that the allotment was fraudulent and proceeded to"cancel it and awarded the same to informant Ali Ehsan subject to scrutiny of his claims. (As noted in the leave granting order, the Additional Settlement Commissioner failed to take note of very material evidence recorded by the Settlement Commissioner before whom the Patwari of the Central Record Office with the record received from India had appeared and stated about the Pedigree‑table. 1n the case of the claim of Munshi the pedigree‑table was established with sufficient particularity. In the cases of others the connecting evidence was provided orally with no rebuttal whatsoever. The law on the subject has been laid down by this Court in Mst. Khurshid Begum v. Settlement Commissioner (Lands) Sargodha and 8 others (1973 S C M R 16 at page 21), in the following words:‑‑ "The revision against this order was within time; but, unfortunately, the learned Settlement Commissioner, instead of deciding this question, went on to reopen the whole case and to set aside all the allotments made between 1956 and 1961 which he clearly could not do, as they had already attained finality in accordance with the provisions of the Displaced Persons (Land Settlement) Act, 1958 itself. We are also in agreement with the learned counsel that the Rehabilitation Scheme does not contemplate an allotment in favour of a deceased right‑holder. The allotment is in the nature of a grant under which obligations are imposed on the allottee to appear before the Rehabilitation Authority, accept the allotment and affix his thumb impression on Register R.L.11. It is obvious that a dead person cannot do these things as required by paragraph 68 of the Scheme. Paragraph 67‑B of the Scheme also clearly contemplates that allotments are to be made to the successors, for, it provides that they should not exceed the extent of their respective shares." We find that the Additional Commissioner has failed to trace the heirs of the deceased right‑holders whose claims were genuine and required settlement and secondly, he failed to take into consideration the pedigree‑tables contained in the record received from India and the connection of the allottees/appellants with the deceased right‑holders. In the circumstances we would allow these appeals, remit the case to the notified officer to consider the effect of the pedigree‑table and the oral evidence with regard to relationship and to follow the law as laid down in the case of Mst. Khurshid Begum. All the three appeals are allowed and the decisions impugned are set aside. No order is made as to costs. M.I./N‑103/S Appeals allowed.