1985 PLP 1701 (SCMR)

Shehzad Jehangir, Advocate Supreme Court for the Department. Date of hearing: 9th October, 1984. M.S.H. QURAISHI, J.‑‑The dispute in this appeal, by leave of the Court, relates to the allotment of a brick‑kiln covering 15 Kanals and situate in Khasra No. 396 measuring 45 Kanals 9 Marlas in village Qutabpur, Tehsil Multan. It had been temporarily allotted in favour of Muhammad Jamil appellant (deceased and represented through his legal heirs) on 9‑1‑1950 and he has remained in possession of it eversince. The entire Khasra number was, however, allotted as agricultural land in favour of one Kamdar Khan and his sons without cancellation of the allotment earlier made in favour of Muhammad Jamil. The latter challenged this allotment. The matter came in revision filed by Kamdar Khan before Khan Saeed‑ud‑Din Khan, Additional Rehabilitation Commissioner, Multan, who by order, dated 3‑4‑1963 dismissed it for the reason that he, being a non‑allottee in the village, was not entitled to the allotment of the land until the claim of other allottees had been satisfied. It is to be noted that earlier an A.R. C. (L) had, after ~a spot visit on 5‑3‑1961, reported that he had found the brick‑kiln measuring 15 Kanals in Khasra No.

396. However, a contention was raised on behalf of Kamdar Khan before Khan Saeed‑ud‑Din Khan that the brick‑kiln allotted to Muhammad Jamil was part of another Khasra No. 1689/239 and not of Khasra No.

396. Khan Saeed‑ud‑Din Khan did not record any finding in this regard but disposed of the contention with the observation:‑ ‑ "In any case this aspect of the case will be examined by me while dealing with the application of Muhammad Jamil for the transfer of the industrial concern when it comes up for considera tion in due course." In the same order he also directed: "The other two Khasras numbers viz: 396 and 398 measuring 47 Kanals 6 Marlas lying as they are outside the municipal limits shall be allotted to the sitting allottees of Qutabpur estate." As regards the case of Muhammad Jamil, the learned officer again observed: "The application of Muhammad Jamil for the industrial concern shall be dealt with in due course of law."

2. Kamdar Khan challenged the above order, dated 3‑4‑1963 by filing Writ Petition No. 1906‑R of 1963 but later agreed to withdraw the same in respect of Khasras Nos. 396 and 398 if a special oath was taken by Haji Gul Muhammad Khan, maternal‑uncle of Ahmad Zaman Khan (respondent No. 1) and a joint temporary allottee of the said Khasra numbers, as to their possession of the said land from 1953 to 1957. Upon Haji Gul Muhammad Khan taking such oath, the writ petition in regard to the said Khasra numbers was dismissed as withdrawn on 28‑10‑1965. Kamdar Khan filed Letters Patent Appeal No. 103 of 1966 but after the same was dismissed on 8‑12‑1971, he went out of the picture.

3. Taking advantage of the direction given by Khan Saeed‑ud‑Din Khan in his order, dated 3‑4‑1963 for allotting Khasra Nos. 396 and 398 in favour of the sitting allottees, the D.S.C. (L), apparently without notice to the appellant, confirmed the said Khasra numbers in favour of the respondent by his order, dated 22‑7‑1963. The appellant challenged the order by filing Writ Petition No. 472‑R of 1965 but it was dismissed in limine on 4‑5‑1965 on the ground that other remedies not having been availed of, the same was premature. He, thereupon, filed an appeal which was accepted by the Additional Settlement Commis sioner (L) on 21‑12‑1966 on the view that there was a brick‑kiln on 15 Kanals of land in Khasra No. 396, which brick‑kiln had been allotted to the appellant, and that, therefore, its allotment in favour of the respondent was to be cancelled. The respondent went in revision and when the same was dismissed on 7‑7‑1967, he filed Writ Petition No. 625‑R of 1967, which was accepted on 8‑12‑1971 by a Division Bench of the Lahore High Court, in the result of which the appellate and the revisional orders made in favour of the appellant were set aside as being illegal and without jurisdiction. The learned Judges construed the direction of the Additional Rehabilitation Commissioner in his order, dated 3‑4‑1963 for allotting Khasra Nos. 396 and 398 to the sitting allottees of Qutabpur estate, to mean that the entire land in Khasra No. 396 was agricultural and allottable to sitting allottees, and held that the conclusion drawn by the appellate and the revisional authorities that the Additional Rehabilitation Commissioner had kept the matter open with regard to allotment of the brick‑kiln in this Khasra number "is totally wrong" and that the appellant not having challenged the order, dated 3‑4‑1963 which was "clearly" against his interest, the appeal and the revision were not competent.

4. Leave was granted to consider whether the learned Judges of the High Court had rightly decided this case in treating the brick‑kiln as part of the agricultural land, although the claim of the appellant to have it transferred to him as an industrial concern had not been finally disposed of by the Settlement authorities.

5. It was submitted on behalf of the appellant that the Additional Rehabilitation Commissioner had left the appellant's claim to the transfer of the brick‑kiln as industrial concern and that, therefore, the High Court had erred in holding the entire land in Khasra No. 396 to be agricultural. In regard to the question whether the disputed brick‑kiln was situated in Khasra No. 396, counsel referred to the finding of the revisional authority in its order, dated 7‑7‑1967 where it was held: "There is no definite mention of Khasra No. 396 in the original order of allotment in favour of respondent (appellant herein) dated 9‑1‑1950 but the subsequent proceedings establish that the brick‑kiln situated in Khasra No. 396 has been allotted to him." As to the size of the brick‑kiln, he referred to the further finding by the same authority to the effect that "out of this Khasra Number, 15 Kanals are under a brick‑kiln which already stand allotted to the respondent."

6. On the other hand, Mr. S.M. Zafar, appearing for respondent Ahmad Zaman Khan, supported the view taken by the High Court and urged that the direction given by the Additional Rehabilitation Commis sioner in his order, dated 3‑4‑1963 for disposing of Khasra No. 396 to the sitting allottees not only meant that the whole area was agricultural but also in a way amounted to rejection of the appellant's case for any portion of that Khasra number and that he not having agitated against that order was bound by it.

7. A reading of the order, dated 3‑4‑1963 shows that Khan Saeed‑ud‑Din Khan had in that order clearly indicated that he would examine the question whether the brick‑kiln was situated in Khasra No. 396 and would attend to the claim of Muhammad Jamil to its transfer in his favour when dealing with his application for such transfer. The High Court was in error in treating the direction to allot the land in Khasra No. 396 to sitting allottees to mean the rejection of the appellant's case. The revising authority in its order, dated 7‑7‑1967 was, therefore, right in holding that "this remark meant by implication that he (Khan Saeed‑ud‑Din Khan) did not consider it obligatory that the entire Khasra No. 396 should be allotted to the allottees of Qutabpur This, in our view, is the correct interpretation of the direction.

8. Mr. S.M. Zafar next urged that the appellant was estopped from challenging the transfer made in favour of the respondent as he had acquiesced in the statement made by Haji Gul Muhammad Khan in the proceedings of Writ Petition No. 1906‑R of 1963. The contention has no merit because the relevant order of the High Court, dated C 28‑10‑1965 itself shows that the appellant had in fact objected to the correctness of the statement, whereupon the High Court had observed:‑‑. "I think the apprehension entertained by the learned counsel is not well‑founded, as the present petition did not concern the merits of the dispute inter se between respondents Nos. 2 and 3 and, therefore, the withdrawal of the petition in respect of those two Khasra Numbers, as against respondent No. 2, has clearly no effect on the dispute which may exist between the two respondents themselves."

9. The next point raised by Mr. S.M. Zafar was that the appellant had not yet applied for transfer of the industrial concern and that the area of the brick‑kiln. if any, was no more than 2 Kanals 17 Marlas, for which he referred to an extract from the Register Haqdaran furnished at page No. 6 of the additional paper‑book, according to which the new Khasra No. 246 carved out of Khasra No. 396 and measuring 2 Kanals 17 Marlas, is recorded as "ghair mumkin bhatta". The appellate; authority in its order; dated 21‑12‑1966 had gone into this question and relying on the Jamabandi of 1958‑59 had held that there was a "brick‑kiln measuring 15 Kanals in Khasra No. 396." However, Ch. Khurshid Ahmad, learned counsel for the appellant, states that he has no objection if a report be called for from the Notified Officer on both the questions, viz. (1) whether an application had already been made by the appellant and had been pending for transfer of the brick‑kiln, and (2) What was the size of the brick‑kiln, constituting the industrial, concern, allotted to the appellant. Mr. S.M. Zafar also agrees. Both parties further undertake not toll dispute the finding of the Notified Officer. By consent of the parties, therefore, the above said questions are referred to the Notified Officer who will after hearing the parties submit his report, within two months' time. Both parties are directed to promptly get in touch with the Notified Officer for the purpose. A.A. Order accordingly.