1987 PLP 481 (SCMR)

NASIM HASAN SHAH, J.‑‑The above‑mentioned two petitions are being disposed of by this common order because they are directed against one and the same judgment passed by a Division Bench of the Lahore High Court in Intro‑Court Appeal No. 12 of 1977 on 24‑5‑1978. The relevant facts are that one Nathu son of Ali Sher, who migrated to West Punjab after the disturbances of 1947 and settled down in Gujranwala District, had got a claim verified for some agricultural land abandoned by him in District Ambala (East Punjab). however, being a non‑allottee in District Gujranwala he got his claim transferred to District Hyderabad in the year 1957, where it was settled. It is alleged that notwithstanding the fact that he had obtained settlement of his claim in Hyderabad in its entirety his heirs managed to obtain another allotment, after his death, in village Hardo Rattali and Jajokee, Tehsil and District Gujranwala. The land so obtained was subsequently sold to 22 persons. One Muhammad Amjad and the heirs of Nazir Ahmad filed a Mukhbari application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act complaining about this fraudulent allotment. A delegate of the Chief Settlement Commissioner held an inquiry into the matter and being satisfied that the facts in the Mukhbari application were correct proceeded to resume the allotment made in favour of Nathu. This order was challenged by 20 out of the 22 vendees in a writ petition before the High Court. It appears that 10 of them had no notice at all of the proceedings conducted by the delegate of the Chief Settlement Commissioner under sections 10 and 11 and only the remaining 10 had notice of it. However, the learned Single Judge hearing the writ petition dismissed the same holding that fraud was so apparent that even if all of them did have notice of the proceedings they could not say anything to disprove it and affording a hearing to them would only be an exercise in futility. This order of the learned Single Judge was challenged by the vendees by an Intra‑Court Appeal and a learned Division Bench of the High Court accepted the appeal of the ten vendees who did not have any notice of the proceeding but dismissed the appeal of the other ten vendees who did have notice of the said proceedings. The vendees whose appeal has been dismissed have challenged the said order in this Court by a petition for leave (Civil Petition No. 433 of 1978), while the informants too have challenged (through Civil Petition No. 553 of 1978) the order of the Division Bench allowing the appeal of the ten vendees who were not served with any notice of the proceedings. We observe that the appeal of the ten vendees who had notice of the proceedings has been dismissed inter alia on the ground that the allotment of the land in favour of Nathu was secured after his death. However, the appeal of the ten vendees, who did not have notice of the proceedings was allowed, inter alia, on the ground that if they had been heard they could yet show that the allotments made to Nathu 'were not in fact fraudulent'. But the question is that if the' vendees, who were not heard, could displace the finding of the delegate] of the Chief Settlement Commissioner on this point and could show that the allotment made to Nathu was not fraudulent would not the said finding also ensure to the benefit of the remaining vendees who did have notice? We, therefore, feel that as the possibility exists of inconsistent findings being recorded with regard to the same issues, the matter has to be' considered further. Leave to appeal is granted in both the cases accordingly. Security in the sum of Rs.2,500 in each case. The appeals shall be made ready on the present record, with liberty to the parties to file additional documents, if any. The petitions in these cases were filed as far back as 1978. The appeals arising therefrom should, therefore, be made ready most expeditiously and fixed for hearing within this year, especially as these are settlement matters. S.Q./4433/S Leave granted