1986 PLP 1943 (MLD)

Sardar Khalid Mahmood and Ch. Muhammad Nazir Ahmad for Respondents. Date of hearing: 3rd February, 1986. Through this constitutional petition, Barkat and two others petitioners, want this Court to declare the orders, dated 31‑12‑1977 and 9‑12‑1976 of Chief Settlement Commissioner, Punjab, Lahore and Deputy Settlement Commissioner (Lands) Sialkot respondents Nos.l and 2, to be without lawful authority and of no legal effect.

2. The dispute relates to the transfer of land measuring 43 Kanals 16 Marlas situated in Kot Maharaj, Tehsil and District Sialkot. The disputed land was allotted and confirmed to Suraya Sikandar who sold it to Mufti Shams‑ud‑Din. Barkat and two others the petitioners, filed suit for pre‑emotion and obtained decree on 26‑10‑1965. It so happened that on the Mukhbari application filed by Muhammad Sharif and Inayat respondents Nos.3 and 4 against allotment in favour of Mst. Suraya Sikandar. The Chief Settlement Commissioner vide order, dated 9‑12‑1976 cancelled the allotment of Suraya Sikandar with the direction that Shamlat land shall first be partitioned and then out of the share of non‑Muslims the land be allotted to Suraya Sikandar. On 31‑12‑1977 the D.S.C. cancelled the Khata of Mst. Suraya Sikandar, hence this petition.

3. The learned counsel for the petitioners mainly contended that although there was a decree in favour of the petitioners yet Barkat Ali son of Khushi Muhammad, deceased petitioner No.l whose legal representatives have been brought on record was not pleaded as a party in the Mukhbari application and was condemned unheard and that Khata in dispute which 'belongs to Muslim and non‑Muslims had already been partitioned and mutation in this behalf was sanctioned on 31‑12‑1972, therefore, the question of the cancellation of the allotment from the name of Mst. Suraya Sikandar did not arise. Conversely the learned counsel for the respondents have supported the impugned orders.

4. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioners. I find that there was a valid decree for possession of the disputed land in favour of Barkat son of Khushi Muhammad, Abdul Wahid son of Khera and Barkat son of Piranditta; that this decree was in the knowledge of Additional Settlement Commissioner with the powers of Chief Settlement Commissioner at the time of passing impugned order, dated 9‑11‑1976 as the order shows that the copy of the decree was produced before him; that Barkat son of Khushi Muhammad was not impleaded as a party and as such he has been condemned unheard. I further find that there was mutation of partition of the disputed Khata' which was attested on 31‑12‑1972. This aspect of the case was not attended to by the respondents. For all these reasons, I am convinced that the Mukhbari application has not been decided in accordance with law and the case law laid down by the superior Courts. That being the position, there is no option but to declare the impugned orders to have been passed without lawful authority and of no legal effect.

5. For what has been said above, leaving the parties to bear their own costs, this petition is allowed and the case is sent back to Additional Commissioner (Revenue) Gujranwala for fresh decision of the Mukhbari application in accordance with law after giving the parties opportunity of being heard. A.A. Petition accepted.