1989 PLP 4409 (MLD)

Date of hearing: 25th February, 1989. Trough this constitutional petition the petitioners have assailed the order dated 12‑2‑1977 passed by respondent No.l. Notices were duly issued to all the respondents for today's date of hearing and respondents Nos.2 to 4 were duly served but none has entered appearance do their behalf. They are, therefore, proceeded against ex parte.

2. Brief facts of the case are that Dulla predecessor‑in‑interest of petitioners Nos.2 to 5 and Ghulam Muhammad predecessor‑in‑interest of petitioner No.l were allotted land measuring 134 Kanals and 8 marlas with an increase of 1 Kanal and 5 Marlas through verified claim somewhere in the year 1951. The petitioners were entitled to allotment of land against 1223 produce index units. Petitioner No.l is the transferee of land from petitioner No.2 through Mutation No.356 attested on 14‑11‑1974. In the year 1961 they were again allotted land measuring 2 Kanals against 22 P.I. Units. Dulla the predecessor‑in‑interest of petitioners Nos.2 to 5 died in the year 1963 and mutation of his inheritance bearing No.33 was sanctioned on 12‑2‑1964.

3. Respondents Nos.2 to 4 filed Mukhbari application against Dulla, predecessor‑m‑interest of the petitioner and one Khaira brother of Dulla on 7‑2‑1974 before the Chief Settlement Commissioner, Punjab, Lahore Prior to that time Dulla had passed away in the year 1963 and mutation of his inheritance had been attested on 18‑2‑1964. Petitioners Nos. 2 to 5 were impleaded in the said application through application dated 22‑9‑1975 long after the repeal of the settlement laws.

4. The learned counsel for the petitioners submits that the Mukhbari application was filed against a dead person and was incompetent under the law. No proceedings could have been taken in the same after the repeal of Settlement Laws. He further submits that originally petitioners' entitlement was calculated equal to 1201 P.I. units and subsequently they were held to be entitled to another 22 P.I. units. The additional 22 units were entered at Sr. No.96 of the R.L.II and 4 Kanals of land equivalent to 32 P.I. units was confirmed in their name on 15‑8‑1961. He submits that at the most it was a case of miscalculation to the extent of 94 P.I. units against which 11 Kanals of land was allotted to them in excess of their entitlement. He offers that his clients were prepared to purchase the excess land from the department.

5. Mr. A. N. Qaisrani, learned counsel appearing for respondent No.l states that he has no objection if the impugned order is set aside, and the petitioners are allowed to purchase the excess land at the rate of Rs.100 Per P.I. Unit.

6. Mukhbari application filed by respondents Nos.2 to 4 was against a dead person namely Abdullah alias Dulla, predecessor‑in‑interest of petitioners Nos.2 to

5. Although in the application one Khaira son of Sabu was also impleaded but the petitioners had nothing to do with the entitlement of the said Khaira. So far as the petitioners are concerned the application against them could not proceed after the repeal of Settlement Laws because the names of petitioners Nos.2 to 5 were brought on the record only on 22‑9‑1975 long after the repeal of the Settlement Laws. The application against the dead person was a nullity in the eye of law as held in Muhammad Sadiq v. Settlement Commissioner 1983 CLC 2550 and Jamadar Khan etc. v. Saeed Ahmad etc. NLR 1981 SCJ

638. The impugned order is, therefore without lawful authority and of no legal effect.

7. In view of the petitioners' offer to purchase the excess land against 94 P.I. Units which is accepted by the learned counsel for respondent No.l, it is ordered that the petitioners shall be entitled to retain the excess land measuring 11 Kanals against 94 P.I. Units subject to payment of Rs.9,400 (at the rate of Rs.100 per P.I. Unit) within three months of this order. The said amount shall be deposited before the Settlement Commissioner/notified officer, Multan.

8. Resultantly this writ petition is allowed, the impugned order dated 12‑2‑1977 is declared to be without lawful authority and of no legal effect and the petitioners arc allowed to retain the excess land subject to payment of the price as ordered above. No order as to costs. H.B.T./M‑1537/L Petition allowed.