1997 SCMR 1099 (PLP)

‑‑‑‑S. 2(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Adjustment of pending units of two rival claimants‑‑‑Land in question was initially allotted to petitioner by Additional .Rehabilitation Commissioner in exercise of his revisional jurisdiction‑‑‑Respondent's Constitutional petition failed against allotment in favour of petitioner‑‑‑Respondent's Letters Patent Appeal was, however, accepted, thus, remanding case for decision afresh‑‑‑Validity‑‑‑Leave to appeal was granted to consider; whether in the circumstances of case Division Bench of High Court vide impugned order was justified in accepting appeal and remanding case for fresh decision after 24 years of the order of Single Judge‑‑ Petitioner's possession was directed not to be disturbed till decision of appeal if he furnished security for mesne profits to the satisfaction of Assistant Commissioner concerned. A.R. Shaukat, Senior Advocate Supreme Court instructed by Tanvir Ahmad, Advocate‑on‑Record for Petitioner. Mian Zafar Yasin, Advocate instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents Nos. l and

2. Date of hearing: 10th December, 1995. MUHAMMAD MUNIR KHAN, J.‑‑This petition for Leave to Appeal No.383‑L of 1995 directed against order dated 13‑3‑1995 passed by a Division Bench of Lahore High Court, Multan Bench, Multan, in L.P.A.No.204 of 1971 arises from the facts that Shan Muhammad petitioner was a bona fide claimant. His units were pending adjustment in Tehsil Lodhran when Assistant Rehabilitation Commissioner, Lodhran allotted the evacuee agricultural land situate in village Lai Wahan, Tehsil, Lodbran to Umer Hayat, father of Maqbool and Muhammad Hanif respondents Nos.l and 2 on 5‑3‑1963 in the absence of and without notice to the petitioner. The petitioner filed appeal against this order of the Assistant Rehabilitation Commissioner before the Deputy Rehabilitation Commissioner, Multan which was dismissed on 30‑11‑1963 as barred by time. The petitioner then filed Revision Petition before the Additional Rehabilitation Commissioner, Multan who vide his order dated 18‑1‑1965 accepted the same and remanded the case to Assistant Rehabilitation Commissioner, Lodhran who on remand allotted the disputed land to the petitioner. It so happened that Maqbool and Muhammad Hanif filed Constitution petition against the order dated 18‑1‑1965 of Additional Rehabilitation Commissioner, Multan, in the Lahore High Court, Lahore which was dismissed by learned Single Judge on 15‑4‑1971. Feeling still not satisfied Maqbool and Muhammad Hanif respondents filed L.P.A. before the Division Bench of the Lahore High Court, Lahore on 5‑5‑1971 which was subsequently transferred to Multan Bench, Multan. The L.P.A was accepted on 13‑3‑1995 mainly on the grounds that although the appeal' of the petitioner was dismissed as barred by time yet the Additional Rehabilitation Commissioner had not attended to the question of limitation and the observation made by the learned Single Judge in his order dated 15‑4‑1971 that the delay in filing the appeal was duly considered and condoned by the Additional Rehabilitation Commissioner, was factually incorrect. Hence this petition.

2. We have heard the learned counsel for the parties. Leave to appeal is granted to consider whether in the circumstances of the case the Division Bench of the Lahore High Court vide impugned order/judgment was justified to accepting the appeal and remanding the case for fresh decision after 24 years of the order of the learned Single Judge. Since the disputed land is in possession of Shan Muhammad petitioner in pursuance to the order dated 1‑2‑1965 of Assistant Rehabilitation Commissioner, therefore, it is directed that his possession shall not be disturbed till the decision of appeal by this Court if he furnishes security for mesne profits to the satisfaction of the Assistant Commissioner, Lodhran within two months. A.A./S‑1023/S Leave granted.