1983SCMR760 (PLP)

Date of hearing : 29th March, 1983. M. BURHANUDDIN KHAN, J.‑Through this petition leave is sought to appeal against the judgment and order of the Lahore High Court dated 14‑1‑1976 passed in Writ Petition No. 277/11 of 1975.

2. Petitioners based their right on inheritance on being collaterals of Nizam Din the last male owner who died in 1895 leaving behind Mst. Bakho who inherited the property of Nizam Din as a limited owner for life only. At the time of death of Nizam Din his daughter Mst. Sakina Begum was also alive but since as per custom of Naru Rajput tribe the property was to devolve as a limited owner on the widow, therefore, no mutation took place in favour of Mst. Sakina Begum who died in 1925 and thereafter with the petition of the sub‑continent Mst. Bakho migrated to Pakistan arid died here in October, 1947.

3. According to the contention of the learned counsel on the death of Mst. Bakho, who had been allotted land in lieu of the property left in India as limited. owner, the property, was to revert to the collaterals of Mst. Bakho who was last full owner of the property of Nizam Din. The petitioners filed claim form and after due verification,. agricultural land measuring 317 Kanals and 15 Marlas situate in Chak No. 89/EB Tehsil Pakpattan .District Sahiwal was allotted to them on 18‑12‑1951,

4. On 10‑7‑1952 mutation No. 22 of inheritance of Mst. Bakho was attested by the A. C. (II) in favour of petitioners Abdul Hamid, Haji Muhammad Khan and Sher Muhammad sons of Nimmu Khan, and on the death of Haji Muhammad Khan his son Wazir Ali and daughter Mst. Wazir Begum succeeded to his share.

5. Learned counsel contended that no objection whatsoever was raised to the aforementioned mutation in favour of the petitioners and no claim forms were filed by respondents Nos. 2 and 3 Mst. Nazir Begum and Mst. Rashida Begum in respect of the land in dispute which fact clearly indicates that the contesting respondents were conscious that they were not entitled to inherit the land in dispute ; that after more than a decade of the aforementioned confirmation of the land and sanction of mutation in the name of the petitioners, the respondents filed time‑barred appeal on 7‑3‑1964 which after various orders culminated in the impugned judgment of the Lahore High Court dated 14‑1‑1976.

6. It was also contended that after having conceded the legal position that after omission of section 19(3) of the Displaced Persons (Land Settlement Act, 1958 the Additional Settlement Commissioner was left with no power to entertain or hear the revision petition and as such the revisional order passed by' the Additional Settlement Commissioner on 31‑7‑1955 was without jurisdiction; that the learned Judge of the High‑ Court erred in upholding the impugned revisional order of the Additional Settlement Commissioner ; that in earlier Writ Petition No. 75/11/1966 it was made clear by the learned Judge in the order that the case was being remanded for decision afresh, he did not express any opinion on the merits of the ‑case and parties were entitled to raise any and every plea available to them. This order was misconstrued by the learned Settlement Commissioner who decided the case without indepen?dent application of his mind and this fact alone is sufficient to vitiate the impugned order ; that the respondents kept silent for a period of over l I years as regards the mutation in favour of the petitioners and their appeal before the Settlement authorities was rightly held to be time‑barred and the order of the Additional, Settlement Commissioner in revisional jurisdiction under section 19(3) of the aforesaid Act patently suffers from lack of jurisdiction and when the matter came up before the Settlement Commissioner be treated the order as nullity.

7. We consider that substantial question of law as formulated above is involved in this case, and, therefore, grant leave. Security rupees two thousand and five hundred only (Rs. 2,500). To be heard on the present record with liberty to the parties to file additional documents, if desired. Petition accepted.