1988 PLP 246 (SCMR)

ALI HUSSAIN QAZILBASH, J.--This is an appeal by leave against the order of a learned Single Judge of the Lahore High Court, dated 17-12-1975, whereby the constitutional petition of the appellants was dismissed.

2. The facts as giver, in the grounds of appeal are that Mst. Ghunna, the mother of appellants 1 and 2, filed a claim form No. 9867 at Tehsil Lodhran for the property left by her late brother Choutu. This claim was verified and land measuring 30 Kanals at the rate of 82 produce index units in village Traggar, Tehsil and District Multan, was allotted to her and a mutation was sanctioned on 29-1-1965 as follows:

1. Mst. Jaini, widow of Choutu = 1/4th share

2. Mst. Choutu, Liaqat Ali and = 3/4th share Ghulam Sarwar sons of Mst. Ghunna. Mst. Chouto, the daughter of Jaimal, who was settled in village Bhai-Rao-Ke, also filed a claim form bearing No.316/613 for the land left by her brother and Mst. Dhanni, widow of Jhandu. She was also allotted land in village Bhai-Rao-Ke, Tehsil Dipalpur, District Sahiwal, and a mutation was sanctioned. Thereafter, a chain of litigation started between the two sisters qua the status of Mst. Ghunna on the one hand, and one Qasim as an informer on the other. After protracted proceedings, the Settlement Commissioner (Land), Multan, on 26-5-1967 came to the following conclusion: "The appeal of Liaqat Ali, etc., against the order of the Settlement Officer/DSC(L), Multan, by which he declared Qasim, deceased, the father of Fateh Din etc. respondents as informers and ordered allotment of Killas No.13,14/1, 19 and 22 of square No.47 measuring 30 Kanals of land to them is concerned, it will succeed upto the extent that 5/8th of the property shall be cancelled from the name of the informers out of which 3/8th will be allotted to Liaqat and Ghulam Sarwar appellants and 1/4th to Mst. Jaini as they are the original allottees of the land. The choice will be that of Ghulam Sarwar, Liaqat and Mst. Jaini as they are the original allottees of the land. The allotment held by Mst. Chouto, respondent in village Bhai-Rao-Ke, Tehsil Dipalpur, District Sahiwal, will be reviewed and reduced upto the extent of 5/8th share of Ghulam Sarwar and Liaqat Ali and Mst. Jaini, petitioner. who have been given their due share in village Traggar, Tehsil and District Multan." This position was reiterated by the same functionary in review proceedings on 15-7-1967. While implementing the above orders, a dispute arose between the parties as to the calculation of P.I. Us. and about the eviction of the appellants from the disputed land. This led the appellants to submit an application before the Revenue Assistant as Deputy Settle ment Commissioner (Land), Multan, alleging therein that the appellants were in fact entitled to the allotment of land equivalent to 140 P. I. Us. but instead have been allowed 82 P.I. Us. A prayer for re-calculation was made. Thereafter, another round of litigation ensued but the appellants did not succeed in that the Settlement Commissioner (Land), Multan, who was seized of the matter, held: "The claim form of Liaqat Ali etc. was first worked out by the Rehabilitation staff to amount to 91 P.I. Units. After the orders passed by the Settlement Commissioner (L) Multan, dated 26-5-1967/15-7-1967 they made an application for recalculation of the units and it was then increased to 140 P.I. Units on 25-11-1967. The orders of the Settlement Commissioner (Land) have not been challenged by the petitioners in the High Court. They have become final. The new ground of attack which the petitioners have managed to establish should have been taken up by them at the time of passing of the orders of the Settlement Commissioner (Land) Multan. The new circumstances shall have no effect on the orders which have been properly implemented in the record by the D.S.C.(Land). The revision petition of Liaqat Ali etc. is held to be without force and is hereby rejected." The above order was upheld by the High Court vide the impugned judgment.

3. Leave in this case was granted to examine the question whethe the appellants could resist their eviction on the ground that the claim of the deceased had been calculated at the wrong rate, despite the fact that they allowed the orders of 26-5-1967 and 15-7-1967 t become final.

4. We have heard the learned counsel for the appellants and gone through the various orders. The case of the appellants is that the claim of the deceased in village Traggar had been calculated at the rate of 82 P.I.Us. whereas it should have been calculated at the rate of 140 P.I.Us. and if it was so calculated, the 5/8th share of the appellants in the estate of Choutu, deceased, was fractionally even more than 30 Kanals allotted against the total claim of the deceased and it was for this reason that they resisted their eviction from the disputed land. The learned counsel further submitted that he was not challenging the vires of the orders of the Settlement Commissioner (Land) dated 26-5-1967 and 15-7-1967 but was all along urging for the re-calculation of the P.I. Us. allotted to the appellants. We have considered the above arguments. The Settlemen authorities after investigation have come to the conclusion that ther has been a miscalculation of the P.I.Us. in respect of the claim o Choutu deceased, but the learned Settlement Commissioner (Land), Multan, vide his orders, dated 18-1-1969 and 22-2-1969 refused to re-calculate the P.1. Us. because of his earlier orders, dated 26-5-196 and 15-7-1967. Since there is no dispute about the entitlement of the appellants, we are of the view that the finality of the orders, date 26-5-1967 and 15-7-1967 notwithstanding, it will be in the interest justice and equity if the P.I. Us. to which the appellants are entitle are re-calculated.

5. In the result the appeal succeeds and the case is remanded to the Notified Authority with the direction that re-calculation of the P.I.Us. is made in the presence of the parties concerned and orders passed accordingly. No order as to costs is, however, made. S.Q./L-8/S Appeal allowed.