P L D 1980 Supreme Court 76 Present : Muhammad Haleem and G (PLP)

G. SAFDAR SHAH, J.-The dispute in this case relates to the inheritance of late Sandhi Khan, the predecessor-in-interest of the parties herein, who died on 10-8-1957. It is common ground between the parties that Sandhi Khan had migrated to Pakistan from what is called agreed area and settled in Chak No. 328/J. B., Tehsil Toba Tak Singh, District Faisalabad. Sandhi Khan, who claimed to have left agricultural land in India, equivalent to 3264 Index Units, filed his claim in that behalf, which was verified in toto. On his death, however, on 10-8-1957, vide Mutation No. 357, attested on 30-11-1957, his inheritance was mutated in the name of his two surviving sons, namely, Ali Muhammad and Shah Muhammad, as well as a surviving daughter, Mst. Sardaran Bibi. Since the living children of the two deceased sons of Sandhi Khan, namely, Muhammad Hassan and Ghulam Muhammad were ignored in the said inheritance mutation, they filed an appeal against it before the Deputy Rehabilitation Commissioner, Lyallpur. On 8-1-1959, however, the said appeal was dismissed by the Deputy Rehabilitation Commissioner. Against the said order they went in revision before the additional Rehabilitation Commissioner, Multan, who vide his order dated 4-11-1959, accepted the same and directed the Assistant Collector to revise the earlier mutation and instead to enter a fresh mutation in the Revenue Record in in accordance with para. 46 of the Punjab Rehabilitation and Settlement Scheme. In pursuance of the said order, the Assistant Collector, vide the new Mutation No. 418, attested on 28-4-1961, included the names of the children of the predeceased sons of Sandhi Khan in his inheritance. It seems, however, that during the said proceedings only Shah Muhammad raised a challenge before the Assistant Collector as to the legality of the order passed by the Additional Rehabilitation Commissioner on 4-11-1959, but he dismissed the same holding that he had no jurisdiction in that behalf. Against the said order Shah Muhammad first went in appeal to the Deputy Rehabilitation Commissioner, who rejected the same, vide his order dated 22-11-1961, and finally he went in revision before the Additional Rehabilitation Commissioner, but his revision application was dismissed, vide his order dated 31-7-1964. In due course, when the settlement operation started, Shah Muhammad again challenged the said order passed by the Additional Rehabilitation Commissioner on 4-1-1959 before the Settlement Commissioner in Second Revision, who vide his order dated 9-2-1965 accepted the same with the result that the revised Mutation No. 418, attested on 28-4-1961, was again revised and consequently the children of the predeceased sons of Sandhi Khan were deprived of any share in his inheritance. Faced with this situation, they challenged the said order of the Settlement Commissioner in a writ petition filed by them in the High Court which was allowed, vide judgment dated 22-4-1975. Against the said judgment, leave was granted to the petitioner by this Court on 1-8-1975 to consider the question "whether in the facts and circumstances of the case the matter is to be governed by the Shariat Act or Para. 46 of the Rehabilitation and Settlement Scheme. In support of his proposition that the Shariat Act applied, the learned Advocate has relied on the decision of this Court reported in 1971 S C M R 138". Mr. M. Bilal, the learned counsel for the appellants contended that when Sandhi Khan died on 10-8-1957, the land allotted to him by the Rehabilitation Department was confirmed in his name, therefore the question of inheritance of the estate of Sandhi Khan was to be governed by the Shariat Act and not by para. 46 of the Rehabilitation and Settlement Scheme. Raja Muhammad Anwar and Mr. Khalid Iqbal, the learned counsel appearing for the respondents conceded the position that if what Mr. Bilal has contended is found to be factually true, then the question of -inheritance of Sandhi Khan would be governed by the Shariat Act. But in that behalf, they joined issue with him saying that when .Sandhi Khan died on 10-8-1957, he was only in cultivating possession of the land in dispute. In support of the said contention he relied on the mutation of inheritance of late Sandhi Khan attested on 30-11-1957 (which appears as Annexure 'A' on the original record of the High Court), in which on the statement of Shah Muhammad himself, it was recorded by the Revenue Officer that Sandhi Khan had died on 10-8-1957, and further that the name of Sandhi Khan has been recorded therein not as owner but as tenant in cultivating possession. Mr. Bilal, the learned counsel naturally felt difficulty to controvert the written contents of the said document, as it clearly enured to the benefit of his clients, and so Fazal Muhammad Khan and another v. Mst. Muhammad Jan and 2 others (1971SCMR138) would not help him. In point of fact, this case is fully covered by Syed Abdur Rashid v. Pakistan through the Secretary, Ministry of Refugees and Rehabilitation, Karachi and others (PLD1962SC42). In that case, in which the facts were similar it was held that "From an examination of these provisions of the Scheme it would appear that an allotment, although essentially a grant from the Government does, when it has once been confirmed, create certain rights or interest in the land allotted which the allottee may in accordance with clause 14 of Chapter II, Part I of the Scheme transfer by sale, exchange, gift, will, mortgage or other private contract but even so the land continues to remain evacuee property throughout and has to be utilised only for purposes approved by the Rehabilitation Authorities and may be resumed if the conditions of allotment are not fulfilled by the allottee... These conditions of allotment .thus, in our opinion, are in the nature of' restrictive covenants running with the land but subject to these covenants and the right of resumption or re-entry reserved under the Scheme the allottee, it appears to us, becomes clothe with all the other usual incidents of at least an occupancy tenant in the lands so allotted. Thus he may, subject to those conditions or covenants, deal with the same as any other such tenant would have been entitled and may even dispose of them -or alienate them either by an instrument inter vivos or by will. It is difficult, in the circumstances, to imagine bow it can be said that, the interest acquired by the allottee in the property is merely a personal interest which cannot be inherited. In our view, having regard to the rights expressly conferred upon him by the Scheme itself an afottee, in whose favour an allotment has been confirmed, acquires a right which is in every sense of the term a 'real property' in its true juristic concept an interest in land. Nevertheless, since the allotment is expressly stated to be a 'grant' and such grants can be made by the grantor upon such terms and conditions as may be specified by a person duly authorised in that behalf, namely, the Rehabilitation Commissioner, it would, in our view, have been open to the Rehabilitation Commissioner to lay down, if he so thought fit, as a condition of the grant that if the property is not transferred by sale, exchange, gift or will, it should devolve in a particular manner which may well be inconsistent with the personal law of the allottee or even the Muslim Law of succession, but if the Scheme itself has not laid down any such special rule or succession, we are equally of the opinion that when a confirmed allottee under the Scheme dies vested with 'real property' which is capable of being inherited and will be inherited by persons who would, according to the general law of the land governing inheritance from such a person, be entitled to inherit from him". It would thus be seen that there is a clear distinction in respect of the question of inheritance of a deceased who was a confirmed allottee and the one whose allotment had not been confirmed when he died. In the case of a confirmed allottee, his inheritance would be governed by the Shariat Act. But in the case of a non-confirmed allottee, his inheritance would be governed by para. 46 of the Punjab Rehabilitation and Settlement Scheme. Now in view of the fact that when Sandhi Khan died on 10-8-1957, he was not a confirmed allottee, evidently the High Court was wholly right to hold that his inheritance was to be governed by para. 46 of the Punjab Rehabilitation and Settlement Scheme. We also respectfully agree with the view taken by the High Court that the Settlement Commissioner had no jurisdiction to sit in review over the order passed by the Rehabilitation Commissioner on 4-11-1959, as Shah Muhammad had never challenged the same before any forum including the High Court. Furthermore, the Settlement Commissioner, without condoning the palpable delay of more than a decade with which the revision application filed before him by Shah Muhammad suffered could not set aside the order of the Rehabilitation Commissioner, even assuming that he had any jurisdiction in that behalf. The legal position in this behalf is well settled in Syed Alam Hussain v. Sayed Shamim Akhtar (1), of which notice was taken by the High Court in support of-its conclusion. We, therefore, feel that the impugned judgment of the High Court is unexceptionable, this appeal therefore, fails and is dismissed. Considering however, that the parties are closely inter-related, there shall be no order as to costs. S. A. H, Appeal dismissed. (1) P L D 1974 S C 35