1974 PLP 303 (SCMR)

HAMOODUR RAHMAN, C. J.‑‑The petitioner and his brother Manzoor Hussain, who has since died, were jointly allotted some agricultural lands in village Qanungo, Tehsil Nankana, District Sheikhupura. Since they were also petty landowners, they obtained allotments of 15 acres in the Thai area also. After this allotment in the Thal area, the allotment of the evacuee land in village Qanungo was, on the report of the patwari cancelled by the Deputy Rehabilitation Commissioner (Land) and allotted to the respondent Rehmatullah. The petitioner and his brother challenged the cancellation on the ground that this cancellation was made without giving them any opportunity of being heard. The appeal was dismissed by an Additional Settlement Commissioner, but on revision, the Settlement Commissioner, by his order of the 6th of December 1965, accepted their contention and restored their allotment. Feeling aggrieved, the respondent invoked the writ jurisdiction of the High Court, but the same was dismissed in limine. On a Letters Patent appeal, a Division Bench of the Lahore High Court agreed with the learned Single Judge and held that the appeal was liable to be dismissed, but the benefit of this dismissal was denied to the heirs of Manzoor Hussain for the reason that they bad not contested the appeal. It was contended on behalf of the present petitioner, that notwithstanding this the appeal should stand dismissed in entirety in favour of the petitioner. It appears that the High Court adopted this curious procedure, because, it was pointed out before the High Court on behalf of the respondent that the heirs of Manzoor Hussain had settled their dispute outside the Court and had allowed the respondent to keep the land in dispute with him to the extent of their share. The learned counsel for the present petitioner was not in a position to deny this before the High Court. In those circumstances, the Letters Patent appeal was allowed to the extent of the share of the deceased Manzoor Hussain. In other words, the High Court accepted that the heirs of Manzoor Hussain had transferred their right, title and interest during the pendency of the litigation to the respondent and, therefore, it was really the respondent being substituted in place of the heirs of Manzoor Hussain. Muhammad Hussain, the surviving brother, now seeks leave to appeal, arid the learned counsel who also appeared for him in the High Court has urged the same arguments before us. It is difficult to appreciate what locus standi Muhammad Hussain has to maintain this application, since, so far as he is concerned, he is not aggrieved by the order made by the High Court. The appeal as against him has been dismissed. If anybody can challenge the allowance of the appeal to the extent of the share of his deceased brother, it is the heirs of the said person and not the present petitioner. The mere fact that the allotment was joint and he is a joint owner doe not entitle him to the whole of the property. At best, he can ask for a. partition of the property in other proceedings, Learned counsel says that since their holdings measure only 12 kanals, they cannot be partitioned. If this be so, then it is his misfortune. He must enjoy the same jointly with the respondent or acquire the share of the respondent by other means. This cannot, however, be a ground for the grant of special leave, for, the correctness of the decision of the High Court so far as the dismissal of the appeal against him is concerned is not being challenged. This petition is accordingly dismissed. Petition dismissed.