PEL D 1969 Lahore 330 (PLP)

The appeal in the final hearing came up before the Ex‑Chief Justice Mr. Mansoor Qadir and late Shabbir Ahmad J., who by means of their order, dated 7‑12‑1962, dismissed it writing as follows:‑ "This Letters Patent Appeal seeks the reversal of the order of a learned Judge of this Court whereby he declined to issue a writ. When this appeal was placed before a Bench of two Judges at a preliminary hearing on the 28th June 1961, it was directed that the Central Record Room Authorities should carry on a verification at the Border to determine whether the appellants were entitled to any land. No report has been sent by the Central Record Room Authorities and this may be due to the fact that the order, dated the 28th June 1961, did not direct them to do so.

2. Learned counsel for the appellants admits that he is not fn a position to show that the appellants were entitled to any land but contends that If the Central Record Room Authorities make a thorough investigation, they will find that the appel lants were entitled to the land of which they had been deprived on the ground that they had secured allotment in their favour by misrepresentation. He presses this prayer by referring to the order, passed on the 28th June 1961, by the Division Bench which dealt with the case at the preliminary hearing. (3) As the record stands at present, there is not the least proof in support of the contention of the learned counsel for the appellants that the appellants had been unjustly deprived of the land which had at one time been allotted to them. We are not prepared to adjourn the case to allow the appellants to procure a report from the Central Record Office because it appears to us that as the order passed by the learned Single Judge was entirely correct, it would not be possible for a Division Bench hearing an appeal against the learned Judge's order to hold that he had erred. It may be that if the report had been produced today we might possibly have granted the appellants some relief, but as on the record as it stands at present, it cannot be said that the learned Judge in Chambers had wrongly dismissed the petition for issue of a writ, we dismiss the appeal, but pass no order as to costs."

6. It appears that there then did take place some Border comparison as contemplated in the various orders herein: before mentioned. As a result whereof Munshi Zulfiqar Ali Girdawar Border Section put in the following report to the O.S.D. on 7-1-1963 (Annexure "A"):-- The O. S. D. on the said report passed the following order on the 11th of January 1963. (Annex "B") :‑

7. As a result of these orders, the claim form of the peti tioners were verified and necessary fard‑i‑haqiats to that effect were issued to them. Copies of those fard‑i‑haqiats have been filed in the form of Annexs. II to V. to the writ petition.

8. It appears that there was yet a third mukhbarri applica tion by respondent No. 2 complaining that the verification of the claim of the petitioners was wrong. The case was again examined by the O. S. D. Central Record Ofce who passed the following order (Annex. "C") :‑ Respondent No. 2 did not feel satisfied and filed still another mukhbarri application which, as will be evident from the facts stated hereinbefore, would be fourth in the series. On this application, Ch. Muhammad Hussain A. R. A. (Additional Revenue Assistant) put up the following report:‑ The Central Record Office thereon passed the following order:‑

9. The report of the Additional Revenue Assistant and the order of the O. S. D. are contained in Annex. "D". The peti tioners have come up in writ petition against the aforesaid order of the O. S. D. dated 20‑8‑1963 to this Court.

10. As will be evident from the report of the Additional Revenue Assistant and the order of the O. S. D. thereon, para graph 50 of the West Pakistan Rehabilitation Settlement Scheme, has been invoked by them for passing the orders against the petitioners. The said paragraph reads as follows:-- "Mutations decided ex parte in India after 15th August 1947, relating to Muslims.‑Adverse orders passed on pre‑Independence mutations ex parte after the 15th August 1947 by the Revenue Authorities in India in which Muslims, who have since migrated to Pakistan, were parties should be ignored and treated in the same manner as mutations on which no orders have been passed (Reference former Punjab Government Letter No. 5707‑R(L), dated 17th July 1951)." A perusal of this paragraph will show that it covers such muta tions in which some adverse orders had been passed by the Indian Authorities ex parte after the 15th of August 1947. A copy of Mutation No. 1567, as received from India, has been filed in the form of Annex. "E". It does not show that any order therein was passed on the basis of any party being proceeded ex parte. Secondly, assuming that the mutation fell within the mischief of A paragraph 50, then it was to be treated as a mutation "on which no orders have been passed". In that event, the relevant paragraph was paragraph 49 of the West Pakistan Rehabilitation Settlement Scheme, which reads as follows:‑ "

49. Mutations relating to the period before 1st August 1947.‑Mutation relating to the period before 1st August 1947, that have been received alongwith the special Jamabandis from the prescribed areas of India in which the mortgagee or the purchaser was a Muslim, should be given effect to although they are not mentioned to have been sanctioned." The tenor of this paragraph shows that it contemplates such mutations where only one of the parties, namely the mortgagee or the purchaser was a Muslim and directs that even though such mutations were not sanctioned in India, they should be considered as to have been sanctioned. This paragraph has no relevancy where both the parties were Muslims. The underlying intention seems to be that Muslim mortgagees or purchasers who may have got land from non‑Muslims and whose mutations were duly entered but could not be finally sanctioned should not suffer on account of their having migrated to Pakistan where they would not be able to prove their transactions by calling non‑Muslim mortgagor or vendor, etc. in evidence. But in cases where both the parties to a given transaction were Muslims who have migrated to Pakistan, the difficulty to prove the deal involved could not be considered to be so unsurmountable as to dispense with its formal proof or to recognize the transaction from the mere entry of mutation in India. The O. S. D. in my opinion, acted without lawful authority in applying paragraph 50 of the West Pakistan Rehabilitation Settlement Scheme to the facts and the circumstances of the present case or with its aid in further applying paragraph

49. None of these paragraphs could be invoked in the very nature of things and the order of the O. S. D. deserves to be quashed on this short ground.

11. When confronted with this situation, learned counsel for the contesting respondent No. 2 argued that since the peti tioners lost their case from this Court in the form of their earlier W. P. No. 610/11 of 1960 and the judgment of the Letters Patent Bench in L. P. A. No. 23/1961, they have (i) neither the locus standi to file this second writ petition on the same subject; (di) nor can any relief be given to them in view of the verdict of this Court in the aforesaid two judgments wherein, according to the learned counsel, it was decided that the petitioners had no right to get any land. These contentions have no force. The orders which were challenged in the previous writ petition were those which had been passed prior to the Border comparison. On the record as it then stood, this Court held that no relief could be given to the petitioners. The cause of action for the petitioners for the instant writ petition, however, arose when after Border comparison two orders were passed in their favour, firstly, on 11‑1‑1963, and, secondly, on the 16th of July 1963. It was on the 20th of August 1963, when the impugned adverse orders were passed against the petitioners that there accrued a fresh cause of action to them to approach this Court. A careful study of the previous judgments of this Court, herein before referred to, would show that they did not close down the case of the petitioners for ever and rather the judgment of the Letters Patent Bench still left a scope for the petitioners to look forward to the Border comparison. The Border comparison brought fruitful results to the petitioners and it was only after the new adverse orders were passed against the petitioners that they felt constrained to come to this Court.

12. From the side of the respondent no other point was argued before me.

13. Learned counsel for the petitioners wanted to take up certain more points in support of the case of his clients but as the one mentioned above is sufficient to grant relief to them, I do not feel the necessity of noting down the remaining points of the learned counsel.

13. The upshot of the above discussion is that the orders of the Officer on Special Duty, Central Record Room, dated the 20th of August 1963, are hereby declared to be without lawful authority and of no legal consequence against the petitioners. The petitioners will get their costs from respondent No.

2. A. E. Petition allowed.