1998 PLP 502 (SCMR)

RAJA AFRASIAB KHAN, J.

On 2nd of January, 1991, this Court passed the following orders:-- "For the reasons stated above, we accept this appeal and declare the order dated 15-1-1974 of Ch. Iqbal Ahmad Mehmood and the order dated 28-5-1978 of the Settlement Commissioner in so far as Khata No.967 is concerned to be without lawful authority and of no legal effect. As regards Khata No.1048 the order of the Settlement Commissioner is set aside and the matter is referred to the notified officer for a fresh decision after giving; an opportunity of hearing to all the parties concerned. There will be no order as to costs." The Settlement Commissioner/Notified Officer, Gujranwala passed an order on 21-6-1995 holding that 1768 Kanals, 3 Marlas of land (equivalent to 3209 produce index units) situate in village Karyal Kalan District Gujranwala was validly allotted to Shah Sawar. Mst. Bilqees Bibi etc., the petitioners are the legal heirs of Muhammad Ibrahim. Muhammad Ibrahim gave an information on 16-12-1971 disclosing that allotment of Shah Sawar was based on fraud and as such was not tenable in law. The land in question was purchased by Abdul Hameed now represented by his legal heirs on 25-3-1970 vide Mutation No.3442. Faqir Muhammad acting as informer also gave an application for cancellation of land measuring 446 Kanals, 18 Marlas equivalent to 1530 produce index units at RL-II Khata No.967 in the name of Ali Bakhsh. Reham Din had claimed to be the nephew of Ali Bakhsh. His grievance was that allotment at Khata No. 1068 in the name of Shah Sawar was, in fact, made in the name of Ali Bakhsh, his uncle and that it was tampered with so as to be shown in the name of Shah Sawar to deprive him of his lawful rights. On 28-5-1978, the Settlement Commissioner held that Khata No. 1068 was in the name of Ali Bakhsh and it had been tampered with to show it to be in the name of Shah Sawar. This being the position, revision petitions of Faqir Muhammad and Abdul Hameed were rejected. Abdul Hameed and Faqir Muhammad instituted Writ Petition No. 864-R of 1978 which was dismissed by the High Court on 11th of June, 1978. They went in appeal which was disposed of by this Court vide judgment dated 2-1-1991. As mentioned above, on remand, the Settlement Commissioner passed order, dated 21st of June, 1995 which was upheld by a learned Judge of the Lahore High Court vide judgment, dated 21st of September, 1995 observing:-- "Not only this, it was only Abdul Hamid and Faqir Muhammad who filed Civil Appeal No.246 of 1978 and the case was remanded. The present petitioners did not move before the Hon'ble Supreme Court. However, in appeal filed by the aforementioned persons, son and daughters of Umar Din, original informer, were made as party but the present petitioners or anyone on behalf of Umar Din did not file any appeal before Hon'ble Supreme Court independently. In spite of this, learned Settlement Commissioner, who passed the impugned order, issued the present petitioners notices and finally a proclamation for their service but they did not appear before him. It is highly unbelievable that the case was remanded by the Hon'ble Supreme Court in 1991 and till 1995 the petitioners have not come to know about it. The plea of learned counsel, therefore, that the petitioners were not heard is of no avail. The impugned order has been passed after thorough inquiry as to the entitlement of Shah Sawar and I do not find any legal infirmity therein. Even the matter has been discussed thread-bare. For the aforesaid reasons, no case is made out for any interference in the impugned order. The litigation has been going on for several years and it must attain finality particularly when the petitioners have no right whatsoever to claim the disputed land. The writ petition is, therefore, dismissed in limine." This petition seeking leave to appeal has been instituted by the petitioners. Learned counsel has submitted that the petitioners being necessary /proper parties were entitled to be heard by the Settlement Commissioner and, as such, no effective and legal order could be passed in their absence. They have been condemned unheard which is not sustainable in the given situation. According to him, they had a right to claim the transfer of the disputed land. The petitioners are the legal heirs of the original informers in the second degree. In the peculiar circumstances of this case, in order to determine the position/status of the informers, leave to appeal is granted to the petitioners. The interim relief having been given to the petitioners shall continue in the meantime. A.A./B-300/S Leave granted.