1995 PLP 557 (CLC)

4. No other remedy was availed at any forum by Noor Wali. Hence the order of allotment made in favour of the father of the present petitioners by the A.R.C. by lapse of time, attained finality.

5. Muzammal Shah, the father of the petitioners on the basis of allotment order issued in his favour, got the Proprietary Rights Transfer Order issued on November 2, 1985 in his favour. Noor Wali entered into an exchange with Muhammad Sharif Khan, non‑petitioner No. 1 herein, without any legal justification at the back of Muzammal Shah, on the basis of which, Muhammad Sharif availed right of review before the Rehabilitation Commissioner against the entitlement certificate which was issued by him in favour of the father of the petitioners but his review was dismissed by the R.C. on July 7, 1986.? Thereafter be filed a writ petition before this Court which was also dismissed on February 9, 1988. Order of this Court being relevant is reproduced below:‑?-- "Neither the petitioner nor his counsel is present. The learned counsel for the petitioner is stated to have placed on record an application for permission to withdraw the writ petition. I am told that this application was placed on record some time in the morning in the office. No just reason has been shown in the application warranting the permission. The petition stands dismissed for non‑prosecution with costs:" Subsequently he filed a review petition before the Custodian which was accepted vide impugned order dated August 13, 1991.

6. In written statement, the contesting non‑petitioners submitted that:‑‑ (i) The writ petition has been filed after more than six months on account of which legal flaw the same is liable to be dismissed; (ii) the land in question allotted to non‑petitioner No. 1, is 9 Kanals and four Marlas only whereas the present petitioners, besides this allotment, have got some other evacuee land allotted in their favour. Therefore, the equity demands that non‑petitioner may not be deprived from the allotment of this land; (iii) the land under survey numbers 189 and 191 under challenge, was not in possession of the petitioners, as such the petition is not maintainable.

7. The learned counsel for the contesting non‑petitioners has argued that in revenue papers out of land in dispute, land comprising survey number 191 measuring four Marlas is shown under a house. Therefore, in the light of the order of R.C. which had attained finality, the petitioner was not entitled to obtain the proprietary rights transfer order of the land to the extent of these four Marlas. The learned Custodian for this reason, had the jurisdiction to pass the impugned order.

8. On the other hand, the learned counsel .for the petitioner in view of the abovementioned facts, argued that Muzammal Shah (deceased) petitioner was allottee of the land, therefore, entitled to obtain proprietary rights transfer order issued in his favour. The learned counsel argued that the Custodian has travelled beyond his competence by setting aside the allotment of the petitioners on the claim of non‑petitioner No. 1, who had no legal claim.

9. I have heard the arguments of the learned counsel for the parties and have perused the documents made available with the petition.

10. In this case, the allotment of Noor Wali was cancelled by the Multiple Allotment Judge on the complaint filed by Enforcement Staff. Later on, the land was allotted to Muzammal Shah the predecessor‑in‑interest of the present petitioners. The litigation between Muzammal Shah and Noor Wali proceeded up to the Court of Rehabilitation Commissioner. The allotment of Muzammal Shah was kept intact by the Rehabilitation Commissioner.

11. As noticed in this order, the order of R.C. was not assailed before any other forum by the parties, therefore, the same had attained finality. The case of the petitioners is that no house was constructed by Noor Wali in the disputed land. However, today, during the course of arguments, the learned counsel for the non‑petitioners has relied on copy of `Parcha‑khatooni' Exh. D.C. wherein about four Marlas of land has been shown under the house. The fact as to who has constructed this house, is not clear. But this shows that even in the light of the order of Rehabilitation Commissioner, if there was any justification for the cancellation of the allotment of the land of the petitioner, that was to the extent of only four Marlas of evacuee land which was under the house and that too after ascertaining that in fact the house was constructed by Noor Wali. The remaining land could not be cancelled from the name of deceased Muzammal Shah allottee. Muhammad Sharif has not placed on file any document which could justify his claim against the petitioners who are the predecessor‑in‑interest of Muzammal Shah (deceased) against whom he previously had invoked the writ jurisdiction of this Court. As stated earlier, the instant writ petition was filed by Muzammal Shah who died during the pendency of this petition. After his death, the present petitioners, by fiction of law, have attained the status of allottees. Even if the land in dispute is under the possession of the contesting non‑petitioners, this fact cannot be taken as a sufficient ground to deprive the petitioners from the rights which they have acquired under law. Non‑petitioner No. 1, as noticed earlier, invoked the Constitutional jurisdiction of this Court through a petition which was dismissed for non‑prosecution. His negligent attitude, legally disentitles him from any relief at this belated stage of litigation.

12. In the aforesaid view of the matter, the writ petition is accepted and the impugned order passed by the Custodian of Evacuee Property on August 13, 1991, is set aside. A.A./56/AJK?????????????????????????????????????????????????????????????????????????? Petition accepted.