1994 PLP 1166 (MLD)

This judgment will dispose of Writ Petition Nos.305/R of 1981 and 171/R of 1980, where the land is the same.

2. Writ Petition No.305/R of 1981 is directed against the order dated 7-4-1981 of the Settlement Commissioner/Chief Settlement Commissioner, cancelling the disputed land measuring 29 Kanals 2 Marlas from the name of the original allottee Muhammad Latif son of Bahara. Petitioners claim to be the vendees of the disputed property.

3. Briefly stated, one Muhammad Latif was allotted land measuring 46 Kanals 15 Marlas on Khata No.39 of RL.II in Village Zafarwal, Tehsil Narowal on 4-9-1963 while Sardar was allotted land measuring 18 Kanals 11 Marlas on Khata No.1. Out of the latter Khata, 11 Kanals 7 Marlas were cancelled, due to the reason that the same was not an evacuee property, leaving the allotment in the name of Sardar to the extent of 7 Kanals 4 Marlas. The original allottee Muhammad Latif, according to learned counsel for petitioners, sold his entire land jointly in favour of Muhammad Ahmad, petitioner No.1 and Muhammad Islam, predecessor-in-interest of petitioners Nos.2 to 9 vide Mutation No-2457 dated 11-2-1970. The other allottee Sardar also is stated to have sold the land to the petitioners vide Mutation No.2458 dated 11-2-1970.

4. Respondent No.3 Fazal Ilahi filed v revision petition against the aforementioned allotment which was accepted by order dated 2-9-1975 of the Settlement Commissioner whereupon the petitioners filed Writ Petition No.301-R of 1976. Respondent No.3 also filed Writ Petition No.177-R of 1976 and both the writ petitions were disposed of by this Court on 28-4-1976 and the case remanded with a direction that "the inquiry with regard to the dispute between the parties may be made by the Revenue Authority to determine as to whether Fazal Din petitioner had been allotted land in dispute prior to the date when it was allotted to Latif and Sardar".

5. In pursuance of the aforementioned order of this Court, the matter was taken up and by order dated 7-7-1977, the Collector, Sialkot held M/s. Latif and Sardar to be the prior allottee as compared to Fazal Din, respondent No.3 whereupon the latter filed an appeal and the same was rejected by order, dated 6-1-1980 of the Additional Commissioner, Revenue, Lahore. Dissatisfied with this, Fazal Din filed revision petition which was accepted by order dated 7-4-1981 of the Settlement Commissioner (Land) exercising powers of Chief Settlement Commissioner and this order is impugned in this writ petition.

6. Fazal Din also filed Writ Petition No.171-R of 1980 against order dated 4-2-1980 of the Assistant Settlement Commissioner (Land) by which his entire Khata was cancelled on ground of fraud and misrepresentation. It is contended by the learned counsel for Fazal Din that impugned order was passed without any notice or hearing writ petitioner and in any case the same is without lawful authority as cancellation took place during pendency of proceedings taken up in pursuance of aforementioned order of this Court passed in two writ petitions.

7. I have heard the learned counsel Mr. A.R. Shaukat and Ch. Muhammad Abdullah and am of the view that order dated 4-2-1980 impugned in Writ Petition No.171-R of 1980 is without lawful authority and of no legal effect as the same was passed without any notice or hearing the petitioner, Fazal Din. The question, which of the parties is in prior possession can only be decided after the impugned order dated 4-2-1980 is set aside arid the Khata restored to the petitioner. Learned counsel, Mr. A.R. Shaukat is unable to support that this order was in accordance with law. In view of this, both the orders one dated 7-4-1981 assailed in Writ Petition No.305-R of 1981 and the other dated 4-2-1980 in Wit Petition No.171-R of 1980 are set aside and the case remanded to the Board of Revenue/Chief Settlement Commissioner for entrusting it to the Notified Officer competent to decide revision petition of Fazal Din which would be deemed to be pending against order dated 6-1-1980. Both the parties are at liberty to raise the pleas available to them in accordance with law. The remand is also agreed to by both the learned counsel. There is no order as to costs. H.B':T./M-1435/L Order accordingly.