1985 PLP 352 (MLD)

The dispute relates to Khasra Nos. 2377 and 2364 in village Ghang, Tehsil and District Sheikhupura. According to the petitioners, it was allotted to their ancestor Hassan on Khata No. 362 on 24-4-1954. The same numbers were, however, also allotted in favour of their another ancestor Dulla at Khata No. 256 sometime in 1954. The allotment from the Khata No. 256 of Dulla was cancelled being bogus under the orders of the D.R.C.(L), dated 26-6-1962. The aforesaid Khasra numbers were then proposed to respondent No. 1 on 11-6-1962 and were confirmed on 15-9-1962 at Khata Nos. 238/261. An endorsement was made on this Khata on 7-4-1966 that these 'Khasra numbers stood confirmed on the Khata No. 362 (of Hassan .predecessor-in-interest of the petitioners) on 24-5-1954. Therefore, these are liable to be cancelled from the Khata of the respondent.

2. Respondent No. 1 filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, on 8-11-1969 saying that the aforesaid Khasra numbers 2377 and 2364 confirmed to him on 15-9-1962 have been shown in collusion with the field staff on the R.L.II of petitioners predecessor-in-interest Hassan at Khata No. 362 by erasing the original Khasra Nos. 2355 and 2356. The application was, however, dismissed on the ground that the respondent had not challenged the order of cancellation of allotment of these Khasras from his name by the Allotment Committee on 7-6-1966. The respondent filed a revision, petition and the learned Settlement Commissioner observed that "I have perused the entries at Khata No. 362 of R.L.11 confirmed in the name of Hasan son of Lashkar ancestor of respondent. Khasra Nos. 2364 and 2377 which are the first two are visibly in a different ink. They also appear to be overwritten as dim entries of Khasra Nos. 2355 and 2356 underneath are visible on close examination. It is also observed that although the respondent's allotment of Khasra numbers 2364 and 2377 at Khata No. 362 was held to date back to 24-5-1954, these Khasra numbers are not reflected in the Jamabandi for 1954-55, 1958-59 and 1962-63. Instead Khasra Nos. 2355 and 2356 are entered in their Khatuni all along. Also these Khasra numbers after being evidently rubbed of at Khata No. 362 were later got allotted by respondent at supplementary Khatas of R.L.II 15/260, 74/260, 74 on 29-12-1971. The Khasra numbers presently stand renumbered as 138/19 and

22. A mutation No. 318 of change of ownership has also been attested on 28-9-1972. Obviously respondent cannot retain both Khasra Nos. 2355, 2356 and 2377, 2364. Of them only the former are shown to have been continuously in their possession from the time of their allotment i.e. 24-5-1954 which is not the case with the later. This coupled with the fact that erasure of Khesra Nos. 2355 and 2356 carried on at Khata No. 362 can still be detected and renders. it a case of fraud which the learned lower Court erred in not going into. In the circumstances I accept the revision and order Khasra Nos. 2364 and 2377 to be cancelled from the name of respondents. The total unit value of these Khasra numbers is equal to 156 PIUs. The petitioners are only entitled to 105 units according to their entitlement worked out on R.L.11. An area equal to their entitlement only may, therefore, be allotted to them out of these Khasra numbers." This is vide order, dated 18-3-1974. This is challenged by the petitioners through this Constitutional petition.

3. Learned counsel for the petitioners vehemently contended that Khasra Nos. 2377 and 2364 were allotted to the petitioners' predecessor in-interest Hassan on Khata No.

362. These were also allotted in favour of their another predecessor-in-interest Dulla on Khata No.

256. When the latter allotment was cancelled, since the petitioners were already holding the aforesaid Khasra numbers in their allotment at Khata No. 362 and were in possession, they did not need to do anything. They also did not come to know of the cancelled area having been allotted in favour of the respondent. Learned counsel also submitted that the Settlement Commissioner vide his order, dated 18-3-1974 has erred in holding that these Khasra numbers were written in different ink by overwriting on the Khasra Nos..2355 and 2356.

4. Learned counsel for the Settlement Department in fairness to him pointed out that the order of the Settlement Commissioner, dated 18-3-1974 passed on the appeal/revision of the respondent is not maintainable for the reason that the powers of Settlement Commissioner were never conferred on the Deputy Commissioners and the Officer who has passed the impugned order was the Deputy Commissioner. To this, the learned counsel for the respondent submitted that this objection was never raised before the Settlement Commissioner who had passed the impugned order or even before this Court Moreover, the petitioners having waited for a favourable decision are not entitled to turn round and say that the officer could not decide. He relies on Muhammad Hussain v. Fazal Karim and 4 others P L D 1969 Lah. 694.

5. Taking the last point first, not only no objection was raised to the hearing of the appeal/revision of the respondent by the Deputy Commissioner as Settlement Commissioner which if raised the officer might have been able to show that the powers of Settlement Commissioner had been conferred on him by the Chief Settlement Commissioner but also no such objection was raised in the petition filed in this Court. Moreover, the adverse order against the petitioners is on the finding that the disputed Khasre numbers were never in their allotment made on 24-4-1954 but are the result of overwriting on the other two Khasra Nos. 2355 and 2356 and that is a case of fraud. Therefore, in all the A circumstances, discretionary Constitutional jurisdiction cannot be allowed to be invoked by the petitioners without examining the merit of the case.

6. The contention of the learned counsel for the petitioners is that disputed Khasra numbers were allotted to their ancestor Hassan on Khata No. 362 on 24-5-1954. The learned Settlement Commissioner in. his impugned order has observed that he had seen the original record and found that the disputed Khasra numbers were written visibly in different ink by overwriting Khasra Nos. 2355 and 2356. He is fortified in his observation by the entries made in the ensuing Jamabandis for B 1954-55, 1958-59 and 1962-63. Therefore, there is no escape from the conclusion that the claim of the petitioners to these Khasra numbers having been allotted to them on 24-5-1954 is untenable.

7. However, Khasra Nos. 2364 and 2377 having been cancelled from the name of the petitioners were found to be equivalent of 156 PIUs. The respondent was found entitled to 105 units; according to the entitlement worked out on the R.L.11. An area equal to their entitlement was ordered to be allotted to them under the impugned order of the Settlement Commissioner, dated 18-3-1974. From this, it would follow that the land worth 156-105 equal to 51 PIUs has not been ordered to be allotted to the respondent. learned counsel for the petitioners submitted that this land should be sold to the petitioners at the current rate under the latest law. In reply, the learned counsel for the respondent No. 1 submitted that the allotment made in favour of the respondent of the Khasra Nos. 2377 and 2364 was for their remaining 105 units and it was recorded worth as much in the relevant column. The learned Settlement Commissioner has erred in holding that the land was worth 156 units. It has, however, to be noticed that the finding of the learned Settlement Commissioner is that the land is worth 156 units. This has not been challenged by the respondent. Therefore, the land having been found to be worth 156 PIUs and the respondent's entitlement 105 units, for which they have been allowed to be allotted land, 51 PIUs would clearly remain un-allotted. The entire area having been admittedly in possession of the petitioners, the petitioners will be entitled to purchase area worth 51 PI Us of their choice under the Latest law Act XIV of 1975, for which they may apply to the relevant authorities. The petition is thus, disposed of, leaving the parties to bear their own costs. H.B.T. Order accordingly.