P L D 1967 Lahore 402 (PLP)

3. The law with regard to the partition of a joint land in which evacuees were also, co‑owners was contained at the relevant time in Paragraph No. 15 of the Rehabilitation Resettlement Scheme (1952). The said paragraph reads as follows:‑ "

15. The Deputy Rehabilitation Commissioner (Lands) will partition joint Khatas of Muslim and Non‑Muslims in the Punjab in the manner prescribed below where there is no hisadari qabza and allot the evacuee area . of the partitioned land to the claimants under the Rehabilitation Settlement Scheme:‑ (1) A Rehabilitation Authority may, either of its own motion, or on an .application made to it in this behalf, order in writing the partition of the share of an evacuee out of a joint property. (2) A copy of `the order thus passed should be sent by registered post, to the other recorded co‑sharers, or such of them as the Rehabilitation Authority may nominate in this behalf, and a copy of the said order should also be proclaimed in such manner as it may deem fit. (3) Any of the recorded co‑sharers referred to above or any other person directly or indirectly interested in the proceedings may within 15 days from the date of the issue of the order or of the proclamation, whichever is later, lodge in writing any objection, he may have to the order passed by the Rehabilitation Authority, (4) The Rehabilitation Authority should, after the expiry of 15 days peruse the objection, if any received and may hold such further inquiry us‑it may deem necessary in the case. After the conclusion of the inquiry, the Rehabilitation authority may either cancel the transfer order made by it, or make it final with or without any modification. After the order has been made final, the Rehabilitation Authority should cause an instrument of partition to be prepared and the date on which the partition is to take effect to be recorded therein reference Punjab Government letter No. 5975‑R (L), dated the 28th July 7.951)." The above paragraph will show that any person directly or indirectly interested in the proceedings can lodge in writing objec tions to the order passed by the Rehabilitation Authority whereby the share of an evacuee out of a joint property may have been partitioned. The question to be seen is whether an allottee is a ‑person directly or indirectly interested in the proceedings. In' my opinion, the words, "any person directly or indirectly interested in the proceedings" are wide enough to cover temporary allottee. According to section 34 of the Punjab Land Revenue Act, XVII of 1887, any person acquiring, by inheritance, purchase, mortgage, gift or otherwise, any right in an estate as a land owner, asignee of land revenue, tenant having a right of occupancy or any allottee of evacuee land, under the law, for the time being in force, shall report the acquisition of the right to the. Patwari of the estate. The Patwari shall enter in his register of mutations every report made to him and shall also make an enquiry therein respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place and of which a report should have been made to him. A Revenue Officer is then required from time to time to enquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge and shall in each case make such orders as he thinks fit with respect to the entry in the annual record of the right acquired. Such an entry shall be made by the insertion in that record of a description of the right acquired and by the omission from that record of any entry in any record previously prepared, which by reason of the acquisition has ceased to be correct. This will show that the interest of an allottee is such, entry about which has to be made in the annual record of rights; prepared under Chapter IV of the Punjab Land Revenue Act. It maybe mentioned that in section 34 of the Punjab Land Revenue Act (1887), formerly, there was no provision requiring the insertion of the names of the allottees in the annual record, and this was for the first time introduced by means of the Punjab Land Revenue (Amendment) Act IV of 1955. This means that the Legislature itself regarded the allottees as persons having interest in land. The position of allottees came up for consideration in Syed Abdul Rashid V. Pakistan and others (PLD1962SC42) where at page 59, their Lordships held:‑ "The amendment made in subsection (1) of section 34 of the Punjab Land Revenue Act of 1887, by the Punjab Land Revenue (Amendment) Act 1955 (IV of 1955), appears also to indicate that the allotment of evacuee land under the Scheme created an interest in land which had to be recorded in the record‑of‑rights by the Revenue Authorities in the same manner as the acquisition of rights in non‑evacuee lands by inheritance purchase, mortgage, gift, etc." This goes to show that the view of the Additional Settlement and Rehabilitation Commissioner that allottees had no interest in the land was not correct. As a matter of fact, the Additional Settle ment and Rehabilitation Commissioner omitted to keep in mind that the right, title and interest of an allottee, or as a matter of fact of a temporary allottee, was such, which could be inherited under Paragraph 46 of Part II of the Scheme and which could be transferred or alienated by sale, exchange, gift, will, mortgage or other private contract in accordance with Paragraphs 13 and 14 of Part I of the Scheme. The allottees, therefore, in the instant case could not have been considered as to have no right or interest in the land allotted to them. From another point of view, the questions 'which are generally considered during the course of partition proceedings or in connexion with the mode of partition embrace the following main factors:‑ (a) classification of land; (b) how the trees and buildings standing on the land are to be divided; (c) how the land is distributed among the co‑sharers, and (d) how far existing possession is to be kept in tact, at the time of actual partition by metes and bounds or allotment of particular field numbers to any particular co‑owner. Thus existing possession sometimes counts much in partition cases and due consideration has to be paid to it. Suppose a co‑sharer has taken into possession a part of the joint land in which he has got his share and begins to cultivate it, by clearing it, manuring it and improving its value even by digging a well. He cannot accept that at the time of the partition of that land this area should. fall to the share of other ' co‑sharers, and that he would have some other area out' of the joint land. This is against reason too. The general principle, therefore, is that a co‑sharer should be allowed to keep possession of the land improved by him unless it appears that land equal in original value cannot be awarded to another party from the rest of the joint holding. Otherwise, possession should be respected up to, the extent of each share‑holder's share in different classes of land, as was laid down in Chandan Khan v. Fateh Muhammad and others (2 P W R 1908 Vol. III Rev,). Similarly, Paragraph 14 of the Land Scheme, (already referred to), stated that the Deputy Rehabilitation Commissioner (Lands) was to allot to each refugee, whose claim was admitted, land keeping in view the principle that no refugee was to be displaced against his will from the land regularly allotted to him by the Rehabilitation Authority. He was also required to keep in view the necessity of ensuring the provision of maximum facility of means of irrigation to the allottees. All these provisions lead to the conclusion that the Additional Settlement and Reh4bili tation Commissioner acted without lawful authority in deciding the case against the petitioners, when he held that the, petitioners e had no locus standi to raise objection to the mode, of partition and that whatever decision had been taken by the lower Rehabili tation authorities in this case should stand. In this view of the matter, the case will have to be remanded to the Additional Settlement and. Rehabilitation Commissioner for disposal of the revision in accordance with law, after keeping in view the finding which I have recorded that the petitioners being persons interested in this case, had a locus standi to be heard in the matter and their view point should be dealt with on merits.

4. The learned counsel for the contesting respondents sub mitted that the effect of partitioning a joint land is that only that area which falls to the share of evacuees would remain or become evacuee property and the rest of the property which is given to Muslim Co‑owners would become non‑evacuee property. He submits that this is a process in which only Custodian can be interested and if he or his delegatees, namely, the Rehabilitation Authorities, do, not take objection to any mode of partition, then the allottees have no locus standi to object to the same, and in this view of the matter, the Additional Settlement and Rehabili tation Commissioner was justified in holding that the allottees had no interest and it was not necessary to hear them or take into consideration their objections. The argument of the learned counsel for the contesting respondents is misconceived and has no application to the facts and the circumstances of the present case. For raising such a plea there must first be established (a) that the officer who partitioned the land had the jurisdiction to do so; (b) that he was either a delegatee of the Custodian or otherwise authorised to do partition and (c) and that the order of partition was passed in accordance with law after following the necessary procedure and hearing all the parties interested directly or indirectly in the matter. It is only after these basic things are proved, that the argument of the learned counsel for the contesting respondent can have any relevancy. In the instant case I asked the learned counsel for contesting respondents to satisfy me about the aforementioned points but he could not do so. I asked him that when Para. 1'5 of the Scheme stated that the partition was to be done by the D. R. C., how could an A. R. C. embark upon such a job in year 1954. The learned counsel had no answer to this. In this view of the matter, the point raised by the learned counsel for the contesting respondents has no‑ bearing to the facts and the circumstances of the present case and is hereby repelled. All that the petitioners at the moment are saying is that the Rehabilitation Resettlement Scheme (1952) gave them certain rights which they were eligible to protect and for that reason they were persons interested and should have been heard. This a valid request and cannot be turned down.

5. The next point raised by the learned counsel for the contesting respondents was that in the instant case even though the partition was made on 18‑5‑54, the petitioners put in a review application on 26‑7‑56, i. e., after about two 'years. It is further contended that when this application was rejected on 21‑1‑1957, the petitioners sent an application to the Central Government on their own showing on 7‑5‑1959, which came down to the Assistant Rehabilitation Commissioner, who, on 1‑2‑1960, upset the order of his predecessor. The learned counsel argues that this conduct of the petitioners is sufficient to hold that they were not interested in this land. On the other hand, the learned counsel for the petitioners argues that the original order was passed by an incompetent authority and was a void order and had no legal existence in the eye of law and could be ignored. He further says that it had been passed in the absence of his clients and the developments aforementioned rather show that they have been constantly pursuing the matter and never lost interest in the Case. Again the learned counsel for the contesting respondents argued that under Rehabilitation Laws the scope of review is limited and the Assistant Rehabilitation Commissioner could not have upset the order of his predecessor in the instant case. The learned counsel for the petitioners replies that the original order being ex parte and having been procured fraudulently was a nullity in the eye of law and could not bar the jurisdiction of the Rehabili tation Authorities in deciding the case afresh. It is also argued that it is a void order passed by an incompetent authority and can always be ignored. Since I am proposing to remand the case to the Additional Settlement and Rehabilitation Commissioner, all these points and such other contentions which the parties want to urge can be raised by them before said officer who will, of course, decide them in accordance with law.

6. The upshot of the above discussion is that the order of the Additional Settlement and Rehabilitation Commissioner, dated 12‑6‑1963, is declared to be without lawful authority and of no consequence against the petitioners. The case is remanded to the Additional Settlement and Rehabilitation Commissioner for fresh decision of the revision petition which had been filed by the contesting respondents before him in accordance with law. The petitioners will get their costs. K. M. A. Petition accepted.