1990 PLP 1618 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑ The appellants are the legal heirs of Muhammad Din, deceased who migrated to Pakistan as a displaced person from Jammu and Kashmir State. He was a temporary allottee of land in Mauna Bhutta, Tehsil Pasrur District Sialkot and held 145 Kanals 10 Marlas of land on temporary basis for subsistence purposes vide Permit dated 29‑5‑1959, He was also a verified Q.P.R. holder. According to the appellants the predecessor‑in‑interest of the respondents with the connivance of the Patwari did not enter in the relevant R.L II in order to help Hassan Muhammad Din filed an appeal against the order of confirmation before the Deputy Settlement Commissioner who accepted the appeal and remitted the case for a fresh decision. There was an unsuccessful revision filed by‑the respondents before the Settlement Commissioner, Lahore. A writ petition was tiled by the respondents in the High Court. A learned Single Judge of the High Court vide ex parte order dated 7‑12‑1973 remanded the case for a fresh decision treating it as a pending revision petition. The Settlement Commissioner again rejected the revision petition. The respondents 2 to 5 again filed a Constitution petition which was accepted. A petition for leave to appeal was filed by the appellants in this Court and leave was granted. The operative part reads as follows:‑‑ "Learned counsel challenged the finding of the learned Judge that Muhammad Din's application for condoning the delay in tiling his appeal had been illegally allowed. According to learned counsel this finding was based on a misreading of evidence and in any event according to learned counsel as the question whether the delay was fit to be condoned or not was mixed question of fact and law within the discretion of the Settlement authorities the High Court had usurped jurisdiction by interfering with the concurrent findings of the Settlement authorities. Next as to the merits of the case, the submission was that the judgment under appeal was based on a misreading of the relevant instructions which had the force of law. These submissions require examination. Accordingly, we grant leave as prayed. Security in the sum of Rs.1,000 and meanwhile status quo as to possession."

2. The High Court while accepting the petition of the respondents observed as hereunder‑‑ "The Settlement Commissioner has not again quoted the instructions for establishing the priority of the allottee over non‑allottee in respect of land which is not the temporary allotment of either. He has only said that the preference is otherwise well‑based. Reading paras 7 and 9(a) of the Settlement Scheme it is clear that in a non‑congested district ordinarily the settlement of allottees and non‑allottees had to take place in the same round and further that a temporary allottee can protect his allotment only if his verified claim is received before his temporary allotment is allotted against the verified units of someone else. Without ever determining whether the claim of respondents had been received in this estate at the time when the proposal was made the priorities have been sought to be established. Even if the claim had been received he could not forestall or prevent the allotment of land not covered by the temporary allotment to another whose units had been received even after his verified claim in the same estate provided only that the settlement thereof took place on a land not covered by his temporary allotment."

3. After such observations were made the proper course was to remit the case back for decision on merits. We, therefore, allow this appeal and remand the case to the notified officer or any other, officer who is competent to decide the entitlement of the parties to the disputed property, for a fresh decision on merits, if possible, within four months. There will be no order as to costs. A.A./N‑263/S????????????????????????????????????????????????????????????????????????? Case remanded.