1992 PLP 1365 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to examine whether the latter part of paragraph 52 of the Rehabilitation and Settlement Scheme was not wide enough to include the decrees of the sort obtained by Wali Muhammad in pre‑partition India of which he sought enforcement from the Additional Settlement Commissioner at a stage when it became enforceable.

2. The factual background of the case is that Mst. Sahib Jan inherited under custom as limited owner, land in village Dheem in Tehsil and District Ambala. On 6‑2‑1931 she sold 107 Bighas 11 Biswas of land for Rs.1;000 in favour of Allah Diya, the father of contesting respondent Muhammad Shari. The appellant and his brother instituted a usual declaratory suit in respect of the sale that it would not affect their reversionary rights in the property on determination of the limited estate of Mst. Sahib Jan. The suit was decreed on 11‑9‑1934, and an appeal preferred by Allah Diya was dismissed on 15th of March, 1935. Allah Diya died in 1942 and was succeeded by Muhammad Shari, respondent. After partition the parties migrated to Pakistan. Muhammad Shari filed a claim for the land abandoned by his father in India and on its verification received allotments in Tehsil Summundhri, District Faisalabad, and in Tehsil Hafizabad, District Gujranwala. The appellant riled an application under section 52 of the Rehabilitation and Settlement Scheme for enforcement of the decree as against Muhammad Shafi in respect of the allotted land. The' Additional Settlement Commissioner obtained a report from the Tehsildar and by an order dated 17‑12‑1958 rejected the claim on the ground that the agreement had not been completed. A Revision Petition filed against that order failed. A Constitution Petition (No.246/R of 1964) was filed which was allowed on 8‑i1‑1968 and the matter was remanded to the Settlement and Rehabilitation Commissioner for decision afresh. After remand the Settlement and Rehabilitation. Commissioner recognized the claim of the appellant and passed an operative order in the following words:‑‑ "In view of these facts, I accept the revision and direct that necessary entitlement certificate should be issued to him. The entitlement certificate issued in the name of respondent, Muhammad Shafi, would be withdrawn and cancelled to the extent of the land in question and the same should be allotted to the petitioner, Wali Muhammad."

3. Muhammad Shafi filed a Constitution Petition (Writ Petition No.92/R of 1973) against this decision of the Settlement & Rehabilitation Commissioner. The writ petition was allowed mainly on the ground that the declaratory decree obtained by Wali Muhammad was unenforceable and his remedy lay in instituting a suit for possession on the basis of declaratory decree within three years of the death of limited owner, which took place in 1948. The operative part of the impugned order/judgment of the learned Judge reads as hereunder:‑ "The only decree that could have been given effect to under custom would have been toe decree for possession of the property and not the decree for mere declaration which would be of no value unless a suit for possession during the period of limitation had been instituted and decree for that relief obtained. The decree obtained in the year 1934 by respondent No.2 was not, therefore, covered by paragraph 52. "The order of the Rehabilitation Commissioner is without lawful authority. I therefore, allow this petition without any order as to costs and quash the order of the Rehabilitation Commissioner dated the 29th November, 1972."

4. Mr. Anwar Rehman, Advocate the learned counsel for the appellant has placed reliance on paragraph 52 of the Rehabilitation and Settlement Scheme, particularly the concluding portion taken note of in the leave granting order and contended that it was wide enough to include a large category of authentic claims enforceable at law at the appropriate time, for which the competent authority has been designated as the Additional Rehabilitation and Settlement Commissioner. A civil suit in respect of such interest and particularly in relation to the evacuee property allotted under the Rehabilitation & Settlement Scheme was not competent under the law. There was no other relief available to the appellant except the relief available under the special provision made under the special law for special category of interest as was enjoyed by the parties in this case.

5. Mr. A.R. Shaukat, Advocate, in resisting the claim of the appellant has relied mainly on the first part of Paragraph 52 and contended that it did not cover the decrees of the sort possessed by the appellant. The refusal, according to him, by the High Court to enforce such a claim by recourse to Paragraph 52 of the Rehabilitation and Settlement Scheme, was wholly justified.

6. Paragraph 52 of the Rehabilitation and Settlement Scheme bad a limited existence from 1951 to 1959 and the claim preferred by the appellant was within that period. The provision (Paragraph 52 of the Rehabilitation and Settlement Scheme) read as hereunder:‑ "The Additional Rehabilitation Commissioner (Lands) and Additional Secretary, Resettlement and Colonies Department will deal with such applications for claims to land allotment in the Punjab as are band on registered deeds and decree of Civil Courts, effect to which had not been given in the Revenue Records of the prescribed territory in India, due to the perturbed conditions prevailing in those areas before the partition. Other refugee claimants with similar claims may, if they so desire, file their petitions with the Additional Rehabilitation Commissioner (Lands) and Additional Secretary, Resettlement and Colonies Department."

7. It is true that, as contended by the learned counsel for the respondent, the decree possessed by the appellant was not to be incorporated in the Revenue Record nor the perturbed conditions prevailing at the time of or preceding partition were the reasons for not incorporating it. However, the specific provision invoked by the applicant and receiving attention of this Court is the later portion of the same instruction which reads as follows:‑ "Other refugee claimants with similar claims may, if they so desire, file their petitions with the Additional Rehabilitation Commissioner (Lands) and Additional Secretary Resettlement and Colonies Department."

8. Considering that Paragraph 52 of the Rehabilitation and Settlement Scheme is an executive instruction regarding the settlement of the refugees and their entitlements which basically was and has now been recognized as in lieu of the property rights abandoned by them in India, it has to be given a liberal and purposive construction. It was a remedial measure. There coup be numerous types of decrees and claims, authentic in nature, requiring enforcement and a designated authority was prescribed under these instructions for dealing with such claims. The fact that the allotment of Muhammad Shari suffered from' a limitation or a burden cannot be denied. It was limited interest obtained from widow, liable to last till the lifetime of widow. The collaterals having obtained at the appropriate stage the decree for the enforcement of their claim could by reference to the authority get it enforced at and after that stage and not earlier. It is also true that normally a civil suit for possession had to be filed but in respect of allotted property under the Settlement Law, which had yet to be confirmed, the only relief which was available to such person was one of filing an application under Paragraph 52 of the Rehabilitation and Settlement Scheme. It being not a suit, the strict period of limitation would not be applicable to rehabilitation matter. Paragraph 52 of the Rehabilitation and Settlement Scheme covers the case of the appellant and he was entitled to the relief therein.

9. Now the question is to what relief is he entitled. The Settlement Commissioner had ousted Muhammad Shari respondent altogether from the allotment, substituting Wali Muhammad for him. This cannot be the position. The decree obtained by Wali Muhammad was jointly with another brother. For that matter his interest under the decree would be confined to. 1/2 share. Besides, 1/4th entitlement of the widow would definitely pass on to Muhammad Shafi, being the vendee from her. As regards the other half, for which the brother of Wali Muhammad held the decree, it is not clear yet from the record as to whether he is alive or dead, has issues or not. In the absence of clear proof on that point the appellant cannot claim more than, 1/2 of the 3/4th available to him.

10. This appeal is accepted. The judgment of the High Court is set aside. The order of the Rehabilitation and Settlement Commissioner is modified to the extent that in the allotted property both in Tehsil Summundari and in Tehsil Hafizabad the appellant would be entitled to 1/2 of 3/4 i.e. 3/8th and the respondent will be a sharer to the extent of 2/8 i.e. 1/4 widow's share, who was vendor in favour of Allah Diya. As regards the 1/4 share of the brother of the appellant who had obtained the decree alongwith him in 1931, the matter would be deemed to be pending before the Rehabilitation & Settlement Commissioner for determination in continuation before the notified authority as it appeals that a part of the entitlement has not been determined so far on proper pleadings or on the further impleading the brother or his successors‑in -interest. To that extent the matter will stand remanded to the notified authority and the shares would finally be adjusted between the parties on the detemination of that question. AA./W‑110/S Appeal partly accepted.