1989 PLP 1265 (SCMR)

SAAD SAOOD JAN, J.‑‑This petition for special leave to appeal is by the Mukhbars whose application under section 10, Displaced Persons (Land Settlement) Act succeeded before the Settlement authorities but who failed to draw any benefit from their success on account of a writ issued by the High Court.

2. One Mst. Umri succeeded to the property of her husband under the custom in Jallundur. She died during the disturbances in 1947. Naseer Ahmad, respondent No.5, obtained allotment of land in Pakistan against the land left by her as her husband's collateral. The petitioners filed a Mukhbari application alleging that respondent No.5 was not an heir of Mst. Umri's husband. The Additional Settlement Commissioner inquired into the matter and found substance in their assertion. Accordingly, he set aside the allotment obtained by respondent No.5. From his order respondents Nos. 1 to 4 who had earlier purchased the land from respondent No.5 filed an appeal before the Settlement Commissioner but it was dismissed. The vendees then invoked the Constitutional jurisdiction of the High Court to call in question the legality of the order of the Additional Settlement Commissioner. A learned Single Judge accepted the writ petition with the following observations:‑ "Learned counsel for the petitioners has submitted that a pre‑deceased's son was not excluded from inheritance under sections 46 and 46‑A of the Rehabilitation Scheme. This is not disputed by the learned counsel appearing for the Settlement Department. In view of the above and the fact that the petitioners are bona fide purchasers for value of a small piece of land this petition is allowed to the extent of the purchase of the aforesaid land. However, in the circumstances, the parties shall bear their own costs." The petitioners seek leave to appeal from the order of the learned Single Judge.

3. In support of this petition it is contended that respondent No.5 was a t remote heir and was excluded by the nearer heirs of Mst. Umri's husband. He was not the son of the predeceased son of Mst. Umri's husband who had died issueless and as such the provisions of paragraphs 46 and 46‑A of the I Rehabilitation Scheme were not attracted in his case. Apart from that under section 14(1‑A) of the Displaced Persons (Land Settlement) Act, 1958, a mukhbar had a right to obtain the land which became available as, a result of the information supplied by him. The order of the learned Single Judge had the effect of depriving the petitioners of this statutory right.

4. The contentions raised on behalf of the petitioners need examination. Leave to appeal is granted. Security for costs in the sum of Rs.5,

000. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if any. A.A./J‑43/S Leave granted.