P L D 1994 Supreme Court 846 (PLP)

MUHAMMAD ILYAS, J.‑‑This petition is directed against judgment, dated the 15th December, 1992, passed by a learned Single Judge of the Lahore High Court whereby he disposed of two writ petitions, namely, Writ Petitions Nos. 472‑R of 1982 and 458‑R of 1982.

2. The writ petition related to Claim Forms No s.51559 and 51560 filed by one Phool Singh in respect of land abandoned by him in India (Bharat), on his migration to Pakistan on the eve. of Independence. His claims were verified to the extent of 2122 P.I. Units. On his death in 1958, allotment of land was secured by his daughter, Mst. Sameeri and two collaterals, namely, Birbhan and Shamsher. Out of the land thus obtained by Birbhan and Shamsher, certain land was purchased by one Sarshar Ahmad who, in turn, sold it to the petitioners, Nazir Ahmad and others.

3. Thereafter, a Mukhbari application was made by Muhammad Hanif Khan (respondent No.2) which was followed by similar applications preferred by General Fahim Ahmad Khan, Begum Ruqqia Ihsan Tiwana, Mst. Moosi, Munshi and Mahmood Ansari, who are respondents Nos.3 to 7 respectively. Inquiries made on the basis of the Mukhbari applications revealed that Mst. Samceri, Birbhan and Shamsher got 5174 P.I. Units in excess of their entitlement. Consequently, allotment of land obtained by them over and above their entitlement was cancelled. The petitioners were also hit by the orders passed by the Settlement Authorities in this regard. The matter was, therefore, taken to the High Court in the form of the said Constitutional petitions. Operative part of the impugned judgment, by which the writ petitions were decided, makes the following reading:‑‑ "The land which now stands cancelled had been purchased by different vendees, now divided in two sets and appearing in the two writ petitions as petitioners. They being bona fide purchasers, it is only just and proper that their interests are also safeguarded. Consequently, after satisfying the claim of Muhammad Hanif Khan, if any it is necessary that these vendees/petitioners should be permitted to retain the land purchased by them, provided they are prepared to pay its price to the authorities concerned keeping in view the relevant rules under the scheme. The balance of land, if any, instead of being resumed in favour of the State, if available, may be offered to the remaining alleged Mukhbars in order of priority, as determined by the learned Chief Settlement Commissioner, at the prescribed rate:"

4. Feeling aggrieved by the direction of the learned High Court with regard to the payment of price by the vendees (petitioners) they have made this petition to assail the said judgment.

5. It was contended by the learned counsel for the petitioners that the petitioners were the first vendees from Birbhan and Shamsher and, therefore, they should have been allowed to retain the land without paying anything more. In this connection, he drew our attention to order dated the 7th March, 1978, passed by the Settlement Commissioner in which the petitioners were treated as desired by the learned counsel. Admittedly, the said order of the Settlement Commissioner was set aside by the Chief Settlement Commissioner and the matter was remanded for fresh decision. By the post remand order passed by the Settlement Commissioner on 5th December, 1982 the earlier order made by the Settlement Commissioner was varied and the allotment of land sold to the petitioners was cancelled, as being in excess of the entitlement of Birbhan and Shamshcr.

6. It was frankly conceded by the learned counsel for the petitioners that the order of remand which washed away order, dated the 7th March, 1978, passed by the Settlement Commissioner was not challenged by the petitioners. A Thus, the last‑mentioned order which is to the liking of the petitioners cannot be pressed into service by them. `. 7: We feel that despite the fact that Birbhan and Shamsher had no right to land obtained by them in excess of their entitlement the High, Court has, as far as possible, afforded protection to the petitioners who are second vendees. It can hardly be. disputed that the first informant Muhammad Hanif Khan (respondent No.2) has the first right over the land in question. According to the order of the High Court, after satisfying his claim, if any, the petitioners would be permitted to retain the land purchased by them on payment., of its price according to rules laid down in the relevant scheme. This is a fair arid just [ order which is not open to any legitimate objection.

8. There is no force in this petition. It is, accordingly, dismissed. M.B.A./N‑387/S Petition dismissed