AGAIN EDIT (PLP)

allotted an area of 54.02 acres of agricultural land in deh 2?/25 Dad taluka Nawabsbah on a certificate of interim relief issued by the Central Record Office, Lahore in the year 1957. On verification by the Central Record Office, Lahore the father of respondents 5 to 7 was found entitled to 33.14 bighas equivalent to 11.21 ghuntas. such a fardihaqiyat dated 5th March, 1959 was issued containing the area verified as against his three claims. The land found in excess of entitlement of the respondents 5 to 7 thus became available for resumption. Accordingly out of the land provisionally allotted to the respondents 5 to 7 Survey Nos. 86/1, 4 and 88/3 measuring 12 acres were allotted to one Or. Ansar Hussain on 17‑12‑1959 whereas Survey Nos. 103/2, 4 and 104/1, 2 measuring 14 acres were allotted to petitioner on 2‑2‑1960 in lieu of their respective claims. The remaining area of 22.36 acres was however, left with respondents S to

7. On 15‑2‑1960 the claim of the father of respondents 5 to 7 was re‑verified and three fardfhaqiyata show ing his entitlement to an area 140.01 bighas equivalent to 54.24 acres were issued. After the re‑verification of their claim the respondents 5 to 7 made an effort for restoration of the land taken away from them. But meeting with no success they filed Constitutional Petition No. 431/11 of 1960 in the then High Court of West Pakistan at Lahore which was heard by a Division Bench and by their judgment dated 29‑9..1964, their lordships were pleased to set aside the order of cancellation of land from the names of respondents 5 to 7 and its allotment to petitioner and Dr. Ansar Hussain and remitted the case to A. R. C. respondent 4 for fresh decision. After remand, on 13‑8‑1965 the respondent 4 ordered that the total area shown in fardihaqiyats issued to respondents 5 to 7 be satisfied from the area originally allotted to them on temporary basis. Dr. Ansar Hussain preferred an appeal against the aforesaid order. This appeal was upheld by respondent No. ‑a who by his order dated 23‑10‑1965 held that the respondents 5 to 7 were not in possession of the land in question on 17‑12‑1959 and that it fell out of their possession as soon as tire time of filing uzardari expired. The respondents 5 to 7 then filed a revision application against the aforesaid order of respondent 3 before respondent 2 who by his order dated 6‑12‑1965 confirmed the order dated 13‑8‑1965 passed by A. R. M./A. R. C. and held that the respondents 5 to 7 were entitled to claim reservation of area tem porary allotted to them for satisfaction of the enhanced area as a result of their uzerdari and their entitlement was therefore ordered to be satisfied from this area. Dr. Ansar Hussain preferred a second revisions before respondent I who by his order dated 21‑6‑1966 held that be (Dr. Ansar Hussain) be ail awed to retain the disputed land allotted t^ him and respondents 5 to 7 may also be allowed to retain the remaining area of their allotment. On 27‑4‑1972, the respondents 5 to 7 made an application to respondent 4 requesting therein that as the order dated 13‑8‑1565 passed by him her not been contested in any manner by the petitioner, the same may be imple mented and mutation orders in respect of the land allotted to the petitioner be issued in their favour. The respondent 4 rejected this application by his order dated 20‑3‑1973. The respondents 5 to 7 preferred an appeal which was heard by respondent 2 who by his order dated 20‑11‑1973 which is impugned in this petition set aside the order dated 20‑3‑1973 passed by A. R.M./ A. S. C. (Lands) and cancelled the allotment of petitioner in respect of the land allotted to him, It is in these circumstances that the petitioner has filed the present petition wherein he has prayed for declaration that the order impugned herein, is illegal and without lawful authority and that the allotment of land made in. favour of petitioner is valid. Mr. Rasheed Ahmed the learned counsel for the petitioner has assailed the impugned order on the following grounds :‑‑ (1)The objections filed by respondents 5 to 7 against the non‑verification of their claims in respect of the balance of land being time‑barred, they could neither claim reservation of any land nor its restoration subse quently. (ii) The order of A. R. C. dated 13‑8‑1965 whose implementation was sought by respondents 5 to 7 did not exist at all as it was set aside by order dated 23‑10‑1965. Before examining the contentions raised by the learned counsel for the petitioner it is pertinent to note that after the allotment of petitioner and Dr. Ansar Hussain was cancelled and the case was decided afresh on 13‑8‑1965 by A. R. C. on remand, Dr. Ansas Hussain challenged the said order and finally succeeded in retaining the land allotted to him ; but the petitioner did not take any steps to impugn this order with the result that litigation between Dr. Ansar Hussain and respondents 5 to 7 before various settlement authorities remained confined to the land allotted to Dr. Aniat Hussain which was the only subject‑matter of litigation between them. In support of his first contention the learned counsel for the petitioner sub mitted that since the respondents 5 to 7 did not file their uzerdari (objection) in time, they were not entitled to claim reservation of the area temporarily allotted to them. He further submitted that since the petitioner was allotted an area of 14.00 acres of land in lieu of his claim out of the land temporarily allotted to respondent: 5 to 7 at a time when it was found in excess of their entitle ment, the respondents 5 to 7 could not claim its restoration subsequently even if their claim was later on reverified for an area more than the one verified earlier. I am afraid I cannot go into this question which was exa mined by their Lordships of the Division Bench of the then High Court of West Pakistan, Lahore in an earlier Writ Petition No. 431/11 of 1960 filed by respondents 5 to 7 against the petitioner and Dr. Ansar Hussain. The objection that the respondents 5 to 7 had not made any efforts to have their uzerdari verified before 30th November, 1959 was not accepted as valid and it was held that respondents .5 to 7 were entitled to have 75% of the area out of their temporary cultivation reserved for them. The petitioner did not challenge these findings. In the proceedings before their Lordships Dr. Ansar Hussain who was respondent 1 therein contended that the area allotted to him was cancelled from the names of the present respondents 5 to 7 as early as January, 1959 and. that it being no more in their temporary cultivation, this land could not he reserved for them. Since this objection was not noticed by any of the rehabilitation authorities and their Lordships were not inclined to go into this question they held that it would be for the rehabilitation authorities to examine this question again in order to determine the area which was in temporary cultivation of respondents 5 to 7 when they filed their uzerdaries on 11th December, 1959. For if there was any exclusion of some area in January, 1959 and no appeal was filed by respondents 5 to 7 against it, they could not claim any right to its reservation in November, 1959. Thus the perusal of the judgment passed by their Lordships would show that the said writ petition was allowed and the matter was remanded to A. R. C. for fresh decision on a limited question only which the A. R. C. decided and held that the total area of 140 bighas verified in the name of respondents 5 to 7 be satisfied fro‑ the area originalfy allotted to them on temporary basis. The learned counsel for petitioner then contended that the respondents 5 to 'l, could not seek implemertsntion of order dated 13‑8‑1964 as it was set aside in appeal by order dated 23‑1D‑1965. It is ho,vcver conceded. by the learned counsel that the petitioner did a~ ,challenge the order dated 1‑8‑1965 and that this order was challenge by Ur. Ansar Hussain only. This being the admitted position, the learned couqsel for petitioner seeking the Oil of provisions contained in ~ules 4 an4, 33 of Larder XL1,‑C' P. C. contends .. that since the order appealed from proceeds on ~ ground common. to the petitioner and Dr. Ansar Hussain, any ore of them co6ld apnel fr‑.3m the whole order and the Appellate: C3brt could re"eree or vary the order in their favour. Ha furthe: contended thaf'the Appellate Court has power to make any hrder which ot~2ht to have been made and make such furthe or other order as the case may reqtfre, a6d this pmver may be exercised by the Court notwithstaad: Ing that the, appeal` is as to vAft only of the order and may be exercised in favour of all'or any of fhe respondents or parties, although such responds art ‑dr piiftles may not h9vb'filed at~y,gppeal i r ‑objection. Rule 4 is merely an onaW;ng, provision which confers a privilege urn any one party to a decree proceeding on a common ground to prefer an appeal. It nowhere lays dawn' that any 'trergoa who is a necessary party to the appeal can be exJu&d and still the appeal will be properly constituted. The prdvii: A lions of rule 4 of Order X'L1 of the Code cannot 4e applied where the note; appealing plaintiff' or defendant as the‑, case may he hat not bees imple,4ded in the appeal at all and is not before the Appellate Court. z'1'his view wag taken earlier by a Pull Bench of the; Lahore High Court in the cage of Manak v. Ahmed Ali (1) and it was approved by their lordships of Supreme Court in the case of Shah Mohammed v. Mohammed Brxx (2). ' However this rule will be inapplicable where; the appeal is dkected only against that part of the decree which affects the appellant. The 'Lpatitioner was admittedly not implteaded as a party in the appeal filed by Dr. Ansar Hussain, and he his also failed to show that`Dr: Ansar Hussain filed appeal against the whole order ‑and not agaRnst That part of order which affected his allotment The petitioner and Dr. Ansar Husain held eeparate claims ire lieu of which land B was allotted to.thcm. They had clearly separate rights. Tire decision dated 13‑8‑1965 given by A, R. C. was confuted to a limited question. Under the circumatanc:s it cannot be said that the decision‑' proceeded on a point common to the case of potitiorlerund Dr. Ansac ~:iusain. Consequ:ntly, the provisio;s of rule ;4 can not"lip applied tee the case of petitioner. ' No doubt the powers under rule 33 of Order XLI of the Code are wide than thosts1 conferred uprn the Appellate Court, by rule 4. rower under th rule can even be exercised id'proceedings in review or ‑ revision (A I R 1949 ‑P' C 106 and A I R 1459 Mad.' 367). Vety wide discretion is given to the C Court in terms of this rule in order to prevent the ends of justice from k)‑irig defeated. Rut I am u0ble to understand how the petitioner can take benefit of these provisions, when even, the Order on which he banks upon was itself set aside subsequently. The perusal of order dated 23rd. October, 1965 passed by Aestt. Cods. missioner and h. S. C. (L), Nawabsbah shows that the appeal filed by Dr. Ansar Husain was upheld and the order ptt" by A. 1?. C. was set aside but . (I) A I R 1946 Lab. 399 ,. (2) P L D 1972 S C 321 this order was again set aside by. Additional Settlement Commissioner (Land) Nilwabshah by leis order dated 6‑12‑1965 which is filed as Annexure ' .AA" with the Counter‑Affidavit of respondents 5 to

7. Tha1inal ordewlsowtOr wet, passed, by Mr. Ismail Noon, Settlement Commissioner,, Khairpar in a revision petition !Piled by or. Ansar Husain,, This order is dated 21‑ti‑1946 and its operative part Is as under :‑ ., . "Under the circurnstanres discussed above I s‑t aside the order'of A. S. C. (L) Nawabshuh and direct that the petitioner (Ce, Syee ‑ Ansar Husain Rizvi) be allowed to retain the disputed land allotted to him ind the respondents may also be allowed to retain the remaining area, of their allotment. ' This order is quoted in the impugned order Anuexurp 'G'. true copy whereof is filed along with this petition. Thus it is cleat that wbAtever may have been Vic effect of the order dated 23‑10‑1965 passed in appeal filed by Dr. Ansar Husain, it stood revised by final order daced 21‑6‑1966, operative ‑ part whereof has been quoted hereinabove which :clearly shows that no finding whatsoever was given in respect of the allotment of the petitioner and that only Dr. Ansar Husain was allowed to retain the disputed land allotted to him. " TAe respondents 5 to 7 were also allowed to retain th=: remainin., area of their allotment. t,rip ‑, pet result Ip that thor ist~ too . Andii'g in~ eavo of .peti tioner in' respect of his al lotiaent. He EOeefore cannpt plead., the aid of provisiot}s contained in rule 33 of Order XLr, of the Code. The contention that order dated 13‑8‑1965 whose implementation wasF,saught by respondents 5 to 7 did not east at all as it was art aside by order dated 23‑10‑1965 has no force at all. No other ground is urged. , . ~eg.,,r . __._ The petition is oherefore dismissed with costs. s. A. H. Petition dismissed. ‑_.‑ ,u.tr : 47