1987 PLP 485 (SCMR)

SAAD SAOOD JAN, J.‑‑ This appeal by special leave is from the order, dated 30‑7‑1975 of the Lahore High Court dismissing the constitutional petition of Mst. Irshad Bibi, appellant No.1 against the order of an Assistant Rehabilitation Commissioner whereby she was denied a share in the allotment obtained against the land abandoned by her father, Haider Khan, in India. Haider Khan (lied during the disturbances in 1947. He had a brother by the name of Allah Ditta who predeceased him and a sister Mst. Nikki. Allah Ditta had three sons namely Mukhtar Ali and Sultan Ali, appellants Nos. 2 and 3, and Barkat Ali. These three brothers migrated to Pakistan and settled in different districts. They all submitted separate claims for the entire land owned by Haider Khan in India. However, the claim was verified on the form submitted by Barkat Ali alone who had settled in Faisalabad. Against this claim an allotment of about eight Acres of land in Chak No. 208/R.B. was made. On 26‑9‑1952 a mutation of inheritance in respect of the said allotment was attested. According to this mutation half of the land was given to Mst. Irshad Bibi as daughter and the other half was given to Barkat Ali as nephew of Haidar Khan. It may be mentioned here that the pedigree table recorded in mutation was provided to the Patwari by a son of Barkat Ali namely, Muhammad Sarwar, respondent No.

1. He concealed the fact that his father Barkat Ali had two other brothers who in the matter of succession enjoyed the same status as his father. However, that may be, the Rehabilitation Authorities subsequently realised that while attesting the mutation they had erroneously left out Mst. Nikki, sister of Haidar Khan. Consequently the earlier order of attestation was reviewed and a fresh mutation was attested on 14‑8‑1953. By this mutation half of the land was given to Mst. Irshad Bibi as daughter and the other half was given to the legal representatives of Mst. Nikki as sister of Haidar Khan.

2. Respondents Nos. 1 to 7, legal representatives of Barkat Ali who had in the meanwhile died, filed an appeal from the order of 14‑8‑1953. Their case was that Haidar Khan had died two years before Independence when the parties were governed by the agricultural custom; consequently they were entitled to succeed to his property to the exclusion of Mst. Irshad and Mst. Nikki. By an order, dated 25‑11‑1958 the Additional Rehabilitation Commissioner accepted the appeal and remanded the case to Assistant Rehabilitation Commissioner with the following observations:‑ In the subsequent proceedings taken by the A.R.C. the appellants were not represented. By an order, dated 5‑1‑1959 the A.R.C. mutated the entire property in favour of respondents Nos. 1 to 7 to the complete exclusion of the appellants.

3. On 17‑12‑1974 Mst. Irshad Bibi filed an appeal before the Deputy Settlement Commissioner to challenge the order of 5‑1‑1959 of the A.R. C., which was dismissed on 27‑3‑1975. She then filed a revision petition before the Settlement Commissioner but it was also dismissed on 28‑4‑1975 on the ground of competency. She then filed a writ petition in the High Court which too was dismissed on the ground of laches.

4. The case of Mst. Irshad Bibi was that after the order of remand, dated 25‑11‑1958 she did not receive any notice from the A.R.C. to appear before him. Thus, the order, dated 5‑1‑1959 which deprived her of her share was made at her back without hearing her. She alleged that she had implicit faith in the sons of Barkat Ali who were her close relatives. She lived in Faisalabad Town which was 8 miles away from Chak 208/R.B. The sons of Barkat Ali kept the proceedings secret from her and continued paying Batai to her. In the circumstances she felt assured that no order detrimental to her interest had been passed. It was on in 1974 when the sons of Barkat Ali stopped paying her Batai that she learnt about the impugned order of 5‑1‑1959, which they had obtained by committing fraud.

5. The order made by the A.R.C. does show that it was passed in absence of Mst. Irshad Bibi. Although the A . R. C . has mentioned that he had sent registered notices to all the parties, but we are prepared to believe Mst. Irshad Bibi that the notice never reached her for it 1st most unlikely that she would have tamely given up her claim to half or the allotment to which she was entitled as daughter of Haider Khan. The conduct of the respondents has also not been above board. They purposely provided an incomplete pedigreetable to the Rehabilitation Authorities by omitting to mention the names of the other two brothers of Barkat Ali who along with him were equally entitled to a share in the allotment. Quite obviously they wanted to grab the entire allotment to the exclusion of the other legal heirs of Haidar Khan. We are, therefore, prepared to believe the assertion of Mst. Irshad Bibi that they kept on paying Batai to her till the end of 1974 in order to give her the impression that no order adverse to her had been passed. We are satisfied that the respondents managed to obtain the order of 5‑1‑1959 from the Assistant Rehabilitation Commissioner by practicing fraud. In the circumstances the learned Single Judge in the High Court should not have dismissed her writ petition on the ground of laches. For the reasons stated above, we accept this appeal and declare the order, dated 5‑1‑1959 of the A.R.C. to be without lawful authority. This revives the order of remand made by the Assistant Rehabilitation Commissioner on 25‑11‑1958. The further proceedings in pursuance of this order will be taken by the notified officer. The appellants will also receive the costs of this appeal from respondents Nos. 1 to

7. S.Q./4435/S Appeal accepted.