1987 PLP 63 (SCMR)

A.R. Shaukat, Senior Advocate Supreme Court of Pakistan, instructed by Karam Elahi Bhatti, Advocate‑on‑Record for Appellants. Pervaiz Akhtar, Advocate Supreme Court of Pakistan instructed 'by S. Inayat Hussain, Advocate‑on‑Record (absent) for Respondent No.

1. Ex parte for Respondent No.

2. Date of hearing: 22nd April, 1986. SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to examine whether the Lahore High Court's judgment, dated 12‑11‑1973 correctly denied to the appellant the right of preferential allotment, he being a sitting allottee with a pending verified claim against the respondent who was not a sitting allottee of that estate.

2. The appellant was a sitting allottee of village Manga Hathar, District Lahore. He received 921 P.I.Units for settlement there against which a proposal was shown to have been entered on 3rd of August, 1962 and this land was confirmed to him on 6th March, 1963. While holding enquiry into the loss of R.L. II. Collector (Mr.Muhammad Nawaz Cheema) by an order, dated 31‑5‑1963 cancelled this allotment on the ground that it was result of forgery and interpolation in the record. This was done without notice to the appellant, the allottee. He preferred an appeal which was allowed by the Additional Settlement Commissioner on 5‑8‑1963 on the sole ground that the allottee ought to have been heard in the matter. He remanded the proceedings. On remand the same Deputy Settlement Commissioner (Mr. Muhammad Nawaz Cheema) affirmed his earlier order, reiterating that the confirmation made on 6‑3‑1963 was directly in violation of a ban imposed on confirmation and could not be allowed to stand. Again an appeal was filed and the Additional Settlement Commissioner on 25‑11‑1964 accepted it and remanded the proceeding for determining the comparative entitlement of the parties for prior settlement of their verified claim in that Estate. Another Deputy Settlement Commissioner on 17‑12‑1964 upheld the entitlement of the appellant as superior to that of the respondent and accordingly eligible for prior settlement of his verified claim. He ordered that it should be so settled and if any land is left then it should be untitled for the satisfaction of the respondents' claims. A revision was preferred on which Settlement Commissioner on 28‑1‑1967 set aside that order on the sole ground that the allotment had taken place at a time when it was banned. A constitutional petition was filed by the appellant but it failed on the only ground that a finding of fact had been recorded with regard to the interpolation and forgery in the record which could not be disturbed in constitutional jurisdiction.

3. Leave to appeal was granted as pointed out earlier, to examine whether even if the earlier allotment of the appellant was liable to be set aside or ignored. he had not a prior right of settlement over respondent and in recognition thereof. was entitled to get that land allotted him on merits too.

4. Mr. Pervaiz Akhtar, learned counsel for the respondent contended that he does not seriously disputed the superiority of the entitlement of the appellant to get land allotted. What he has been contesting throughout is the fact that the appellant had no unsatisfied verified claim pending when the allotment was made to him as entire verified claim stood satisfied. This fact, according to the learned counsel for the petitioners, has not received the attention of any of the authorities, though it was noted by the Settlement Commissioner in. his revisional order, dated 28‑1‑1967 in a different form.

5. After hearing the learned counsel for the parties we find that this appeal must be allowed. The order of the Deputy Settlement Commissioner passed on remand on 17‑12‑1964 determining the comparative entitlement of the parties, remains in the field. It was never successfully disputed. It was never adjudicated upon by any other authority, holding otherwise. It is not contested even at this stage by the respondent. Therefore, even if the earlier allotment of the appellant were to be effected he would still be entitled provided that he had unsatisfied verified claim in that Estate on that date. The question is not free from controversy and is: disputed. It has never been resolved. Therefore, while accepting this appeal and se‑tong aside the order of the Settlement Commissioner, dated 28‑Y‑! 967 restoring thereby the order of the Deputy Settlement Commissioner, dated 17‑12‑1964 we would remand the proceedings to the Notified Officer for adjudicating upon the pendency of the claim, if any of the appellant and if he finds no P.I. Units were pending then the land shall be available for satisfying of the claim of the respondent. If any part of the verified claim of appellant is found pending in that Estate it should be first satisfied on the land allotted to him on 6‑3‑1963 and only, land in excess, if any, shall be made available for satisfaction of the claim of the respondent. No order as to costs. M.I. Appeal allowed.