2002 PLP 363 (MLD)

Municipal Committee, Multan through its Chairman v. Burmah Shell Storage and Distributing. Co. of Pakistan Ltd. and another PLD 1976 Lah. 71,6; Chief Land Commissioner, Punjab, Lahore v. Makhdotim Syed Nazar Hussain Shah and 13 others 1975 SCMR 352; Muhammad Yousuf v. The Additional Deputy. Commissioner (Collector), Peshawar and others 1972 SCMR 613; Tanvir Ahmad Siddiky v. Province of East Pakistan PLD 1968 SC 185 and Sultan Hassan Khan and 2 others v. Mst. Nasim Jahan and 17 others 1994 SCMR 150 ref. Muhammad Jaffar Hashmi for Petitioner. M.A. Farazi for Respondent No.

1. Muhammad Mahmood Bhatti for Respondents Nos.2 to 6 Date of hearing: 25th April, 2001. Briefly stated the facts are that Sadda son of Rulia caste Pinja resident of Kheimgard, Tehsil Bharoti Garb, District, Basham, Patiala State of United India was owner of land whose ownership was verified by the Central Record Room, Lahore, , vide Fard Haqayyat Annexure `A'. After the verification of his claim, Subha son of Sadda filed claim and accordingly land measuring 191 Kanals, 14 Marlas was allotted to him vide RL‑11 No.154 dated 28‑11‑1958 against Claim No.33799. The petitioners who are descendants of Sadda have been coming in possession of land since its confirmation dated 28‑11‑1958 and as such have been in continuous possession for about 29 years at the time of' filing of instant writ petition respondents Nos.2 to 6 with the connivance of respondent No. 1 moved a miscellaneous application on 5?6‑1986 with the Deputy Commissioner, Rahimyar Khan, alleging that petitioners had obtained the agricultural land against the claim of Sadda son of Rulia through misrepresentation and actually they were the heirs of said Sadda. The said application was referred to Additional Deputy Commissioner (General)/Advocate Supreme Court (L); who held an inquiry in a highly perfunctory manner and vide order, dated 25‑2‑1987 ordered the cancellation of land from the name of the petitioners and further ordered that the same be given to respondents Nos.2 to

6. The petitioners applied for certified copy of order dated 25‑2‑1987 but the same was not supplied to them as per order's Annexures `D' and `E' annexed with this writ petition. The petitioners have accordingly filed the instant writ petition seeking a declaration to the effect that order, dated 25‑2‑1987 be declared illegal, without lawful authority and ineffective on their rights. They further prayed that respondent No. 1 be restrained from proceeding further in the matter.

2. Notice was sent to the respondents who have filed their written statement which is available on record.

3. Arguments have been heard and record perused.

4. Stand of the learned counsel for the petitioners is that suit land has been verified in the name of Sadda son of Rulia caste Pinja by the Central Record Room as per Annexure `A'; that as a result of said verification, land has been allotted vide RL‑11 No. 154 dated 28‑11‑1958, that petitioners are descendants of said Rulia and as such are entitled to its possession, that respondents Nos.2 to 6 have got no concern whatsoever with the suit land, that respondent No. I had no authority to entertain the application of respondents Nos.2 to 6 after the repeal of Displaced Persons (Land Settlement) Act, 1958 and placed reliance upon Sardar Wahid Ali v. Abdul Shakoor and 2 others (1999 CLC (Lahore) 858) and Mst. Bushra Begum v. Settlement Commissioner and 5 others (1998 MLD 442), that as such order dated 25‑2‑1987 of Additional Settlement Commissioner (Land), Rahimyar Khan, is coram non judice. He, thus, submitted that writ petition be accepted and the impugned order be set aside. He further submitted that regarding this very property a civil suit has been filed by them, which is pending in the Civil Court, Khanpur, and in which proceedings have been stayed on account of pendency of instant writ petition. He further contended that pendency of civil suit is not a bar for filing instant writ petition and has placed reliance upon Municipal Committee, Multan through Chairman v. Burmah Shell Storage and Distributing Co. of Pakistan Ltd. and another (PLD 1976 Lahore 726). He next argued that High Court is competent to interfere with the order if the same is a result of misreading of evidence, non‑consideration of material evidence and suffers from patent error of law and placed reliance upon Chief Land Commissioner, Punjab, Lahore v. Makhdoom Syed Nazar Hussain Shah and 13 others (1975 SCMR 352). He, thus, submitted that writ petition is maintainable.

5. Conversely stand of the learned counsel for respondents Nos.2 to 6 is that respondents Nos.2 to 6 are descendants of Sadda son of Rulia as per pedigree‑table Annexure `R‑1', that as the petitioners have obtained the allotment by fraudulent means, so the Additional Settlement Commissioner (Land) was competent to entertain the application and pass an order and placed reliance upon letter; dated ‑9‑1979 issued by the Board of Revenue (Settlement and Rehabilitation Wing), Punjab. He further contended that instant writ petition is not maintainable as matter is subjudice before the, Civil Court and placed reliance upon Muhammad Yousuf v. The Additional Deputy Commissioner (Collector), Peshawar and others (1972 SCMR 613). He further contended that as the matter in issue requires adjudication as to who is entitled to its allotment, so the same cannot be adjudicated in writ petition and placed reliance upon Tanvir Ahmad Siddiky v. Province of East Pakistan (PLD 1968 SC 185). He further argued that as fraud has been alleged by the petitioners, so in these circumstances only the Civil Court has the jurisdiction to adjudicate upon the matter and placed reliance upon Sultan Hassan Khan and 2 others v. Mst. Nasim Jahan and 17 others (1994 SCMR 150). He, thus, submitted that writ petition being not maintainable deserves to be dismissed.

6. It is evident from the facts narrated above that suit land has been allotted vide RL‑11 No.154 dated 28‑11‑1958 on the basis of verified claim submitted by Subha son of Sadda. It is also fact that petitioners have been coming in possession of suit land since its confirmation, i.e. 28‑11‑1958. It is also fact that it is after lapse of about 28 years of allotment that respondents Nos.2 to 6 moved the instant application with the Deputy Commissioner, Rahimyar Khan, which was referred to ADC(G)/ASC(L) for necessary action. Admittedly' the Displaced Persons (Compensation) Land Settlement Act, 1958 stood repealed in the year 1975 and after repeal of Settlement Laws, no officer under Repealing Act was vested with power to deal with any case unless same was pending as defined in the said Act. Any case remanded by this Court for disposal was also to be treated as pending case. Thus, the Assistant Settlement Commissioner (Land) could only‑ exercise his power, had the instant case been pending at that time, i.e.'5‑6‑1986 or has been remanded by this Court. Admittedly none of these conditions was existing at the relevant time. Thus ASC(L) had no jurisdiction either to entertain or to pass any order in respect of land allotted to the petitioners. Reliance. is placed upon 1998 MLD 442 and 1999 CLC 858 (supra). Thus, the order, dated 25‑2‑1987 being coram non judice is not sustainable in the eyes of law and is hereby set aside and respondent No. 1 is restrained from proceedings further in the matter. However, as matter has already been agitated by the present petitioners and is subjudice in the Civil Court, so the. instant writ petition is disposed of with a direction to the parties to approach the said Court for final adjudication of their respective claims. Q.M.H./M.A.K./F‑79/L ????????????????????????????????????????????????????????????????????? Order accordingly.