1994 PLP 2074 (MLD)

This Constitutional petition is directed against order, dated 17-7-1976 of the Additional Commissioner, Multan Division, Multan, restoring the allotment of the disputed land in the name of Pir Khan cancelled from his name on 8-12-1965. The petitioner claims to be the vendee of this property from another allottee after the land was cancelled from the name of Pir Khan the original allottee.

2. Facts relevant for the disposal of this writ petition are that one Pir Khan son of Mana was confirmed land measuring 69 Kanals Khata No.34 Mauza Akbar on 10-10-1958 as against his claim equivalent to 133 PI. Units and after his death the same was inherited by his legal heirs Sharaf Din, Noor Din and Bagga etc. vide mutation No.42 and these persons exchanged the land in question with one Noora and Masoora who in turn got this land exchanged with Haitam Pagal, Mst. Sabiran, Mst. Nooran wife of Haitam and Allah Ditta residents of Mauza Akbar. However, one Abdur Rehman Patwari made a report on 9-10-1965 that the original allottee Pir Khan was holding only 133 units and the land measuring 69 Kanals could not be allotted to him and on this basis 53 Kanals of land was cancelled on 8-12-1965 on account of wrong classification of the land. Thereafter, the cancelled land was allotted in the name of Hakam Ali at Khata No. 35 on 9-2-1966 who in turn sold the same in favour of one Abdur Rauf on 8-2-1967 vide Mutation No.

369. The petitioner claims to be the vendee of the disputed land vide sale-deed dated 13-8-1974.

3. Against the order of cancellation dated 8-12-1965 reducing the area of the original allottee from 69 Kanals to 16 Kanals Haitam Pagal and other last mentioned person who got the land in exchange filed an appeal and the same was accepted on 1-11-1972 by the Additional Deputy Commissioner, Sahiwal, as both the parties agreed to the remand of the case and while doing so it was observed that both the counsel have agreed that in the absence of special Jamabandi they would prefer that units of disputed land should be calculated on the basis of the classification as mentioned in Fard Taqsim Muhajreen.

4. In post remand proceedings the matter was taken up and vide order dated 9.6-1976 the Assistant Commissioner DSC (Lands), Okara maintained the cancellation of the land by holding that the original allottee was entitled to the allotment of land equivalent to 58 units and not as against 133 units as was originally done. Dissatisfied with this last order dated 9-6-1976 revision petition was filed by the legal heirs of Haitam etc., and the same was accepted and the land restored to the original allottee by making certain adjustment.

5. Mr. A.R. Shaukat appearing on behalf of the petitioner has vehemently argued that the impugned order was legally unsustainable as the same has been passed after the repeal of Evacuee Laws and in this view of the matter the rights of the petitioner-vendee could not be affected. I have heard him at great length and am of the opinion that there is no force in the contention of the learned counsel. Admittedly, the disputed land measuring 69 Kanals was allotted in the name of Pir Khan on 10-10-1958 and thereafter had changed many hands and at one time on the report of the Patwari dated 9-10-1965 the disputed land was cancelled on the ground of miscalculation of units keeping i)r view the classification of land and that this report was submitted after seven years of the original allotment. Thereafter, there was an appeal and revision and finally impugned order dated 17-7-1976 was passed. It cannot, therefore, be said by any stretch of imagination that the order was a nullity having been passed after the repeal of the Evacuee Laws. It is not understandable how the learned counsel is advancing this argument without any legal basis. On the admitted facts of the case the allotment was made on 10-10-1958 and the powerful Patwari did not hesitate to involve the affected persons into a useless litigation and his action was finally disapproved by the Additional Commissioner, Multan Division, Multan, who passed the impugned order dated 17-7-1976 by holding at page 3 of the order that "there was no justification to reopen the case on report of a Patwari after eight years particularly when by that date the original special Jamabandi lost subsequently had not been traced out. The allotments were to be made on the basis of the entries in the special Jamabandi and not of Khasra Girdawari which were made the basis of the case and in the event of discrepancy if any it was mandatory to correct the special Jamabandi first and then to' revise the allotment. This provision was not adopted and thus reduction of the allotment of Pir Khan from 69 Kanals made on 8-11-1958 to 16 Kanals by DSC (L) on 8-12-1965 was ab initio void".

6. After hearing the learned counsel, Mr. A.R. Shaukat, I have no manner of doubt that the learned Settlement Commissioner by his impugned order has remedied injustice done to the respondents in whose favour the property was exchanged at third hand, and therefore, after the cancellation of the allotment of land on 8-12-1965 the subsequent allotment in favour of Hakam Ali on 9-2-1966 automatically stood cancelled and no title could be passed in his favour and subsequently the resale of the land by Hakam Ali to Abdur Rauf and thereafter from Abdur Rauf to the petitioner stood nullitty in the eye of law. The petitioner, therefore, has no case whatsoever either on legal basis or on merits to retain the land in question as the impugned order dated17-7-1976 of the Additional Commissioner Multan Division is perfectly in accordance with law and no exception can be made to it on any ground Whatsoever, particularly when the petitioner was also one of the respondents before the Additional Commissioner who passed the impugned order.

7. This writ petition was filed in 1976 and it appears that Ch. Noor Elahi, Advocate Sahiwal, learned counsel for the respondents filed written statement in May, 1977, where he prayed that writ petition was without any substance and the same may be dismissed.

8. It appears that during the course of the pendency of the writ petition the aforementioned counsel was superseded by the learned counsel Syed Ahmad Saeed Kirmani who on 1-11-1993 filed a compromise on behalf of respondents 5 to 22 which was only thumb-marked by two persons praying that the order impugned may be declared to be without lawful authority and of no legal effect. This C.M. No.1 of 1993 in the form of a compromise was also signed by Mr. A.R. Shaukat, learned counsel for the petitioner and this C.M. was rejected by my order dated 27-11-1993 holding that "the parties had filed a compromise which was placed on the record and I find that the same is not within the ambit of this writ petition. Therefore, the parties are directed to argue the main writ petition".

9. Mr. A.R. Shaukat, learned counsel for the petitioner commenced his arguments before interval and completed the same thereafter when the learned counsel for the respondents Syed Ahmad Saced Kirmani, appeared and filed an application directly in the Court, which is now registered as C.M. No.141 of 1994, by explaining few facts which are reproduced as under:

"(1) That the respondents obtained the land in question measuring 69 Kanals from successors of evacuee allottee Pir Khan in exchange of their own land measuring 67 Kanals 5 Marlas vide mutation No.54, dated 3-3-1960. (2) That the allotmegt of land obtained in exchange was subsequently cancelled to the extent of 135 plus measuring 53 Kanals being declared as surplus land was confirmed in the name of one claimant namely Hakim Ali from whom the land was subsequently purchased by the petitioner. (3) That the orders dated 1-2-1972, 9-6-1976 and 17-7-1976 passed by Additional Settlement Commissioner, A.C./D.S.C. (1), Okara and Additional Settlement Commissioner, Multan may kindly be declared to be without lawful authority and as such of no legal effect. The Writ Petition No. 1124-R/76 may kindly be accepted." This application has been filed on behalf of respondents Nos. 5 to 22.

10. The aforementioned application is liable to be rejected as none of respondents Nos.5 to 22 has signed the same and similar was the position as to the earlier compromise in C.M. No.9, dated 1-11-1993 where only two perso thumb-marked. It is pertinent to mention that some of the respondents on whose behalf application is made, are minors and it is the duty of the Court to safeguard their interest. Further, it is not understandable why the application has not been signed by respondents Nos. 5 to 22 when their predecessor-in- interest had been in litigation for more than 20 years in regard to the land which was given to them in exchange. No consideration appears to have been passed, as is evident from the concession shown in the application, in favour of the writ petitioner.

11. It has been held in 1993 SCMR 374 "Umar Bakhsh v. Azim Khan', that one other important factor is that this compromise Exh.C-1 was not complete because it is specially mentioned therein that it had to be produced in the Court and party of the second part (Umar Bakhsh and others) had to give statements in the Court and only after that it would be considered as acted upon because in the result Umar Bakhsh and the others had to agree that appeal by Azim Khan be allowed and they be allowed to withdraw their suit. It, therefore, manifestly follows that the compromise would be completed only when it is accepted by the Court and orders are passed by the Court as desired by the parties. Court would consider the document to be compromised when both parties signing it agree and reiterate the contents before the Court. If before the Court one party to the document resiles from it, then the document can be called anything but an agreement or compromise".

12. In the precedent case, it has also been laid down that "Order XXIII, rule 3, C.P.C., requires that the Court shall order compromise of suit to be recorded when it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of whole or any part of the subject-matter of the suit". In view of this, it is the duty of every Court, before accepting a compromise, to examine that the same is lawful. It was further laid down that "this Court affirmed the view of the High Court and held that a judicial or quasi-judicial determination, to inspire confidence and to command respect must be based on record or material beyond suspicion and reproach and in consequence refused leave to appeal". In the instant case, mere application has been filed by the learned counsel that writ petition be accepted and this cannot be termed as a valid and legal compromise firstly that it has not been signed by respondents Nos. 51 to 22, some of them are minors and no consideration appears to have been Passedls in their favour. It is revealed from the record that respondents Nos. 13 and 21, Mst. Rajan and Pir Muhammad, are not the signatories to the power of attorney executed in favour of the learned counsel who filed the Present' application, therefore, no concession could have been shown on their behalf and as the disputed property is jointly owned by the respondents, this is another legal flaw in accepting the compromise. In view of all this, application toot b the learned counsel on behalf of respondents Nos. 5 to 22 that the writ petition of petitioner be accepted is rejected.

13. Some pages of the impugned order dated 17-7-1976 are torne and a Photo copy of the same has been placed on the file of the writ petition on the basis of the record of the learned counsel for the petitioner. For reasons stated above, writ petition is without any force and the she is rejected without any order as to costs. A.A./643/L Petition dismissed.