1982S94 (PLP)

ZAFFAR HUSSAIN MIRZA, J.‑The controversy between the parties in this appeal concerns the question of double allotment of the same piece of agricultural land in favour of Mst. Sahib Bibi (predecessor‑in‑interest of the appellants) and the first respondent, Malik Jalaluddin, under separate M. R. Vs. issued under Martial Law Regulation No.

89. The question turns on the point as to who was the prior allottee of the land. Leave in this case was granted in order to examine the effect of a compromise application filed by Mst. Sahib Bibi and Malik Jalaluddin in the proceedings before the High Court, whereby the latter had accepted the claim of Mst. Sahib Bibi that she was in fact the prior allottee. Since this matter went to the root of the case, it was felt by the leave granting Bench of this Court, that the question requires examination, whether in the face of such admission on the part of Malik Jalaluddin, the High Court could still declare the orders of the departmental authority maintaining the allotment of Mst. Sahib Bibi, to be without lawful authority and of no legal effect. The facts leading to this appeal are, that Malik Jalaluddin, respondent No. 1 herein, was allotted the land in dispute on the basis of his Q. P. R. V., for which Parcha Taqseem Khatooni was issued to him on 9‑9‑1959. The same land was also allotted to Mgt. Sahib Bibi and since it was 4 case of double allotment, the Mukhtiarkar and A. R. C. wrote a letter to the D. R. C., Dadu, seeking directions in the matter. The latter directed the Mukhtiarkar and A. R. C. to maintain the allotment in favour of the person who was the prior allottee. The Mukhtiarkar and D. R. C., on an inquiry came to the conclusion that Mss. Sahib Bibi's allotment was prior in time. The allotment of respon dent No. 1 was, therefore, cancelled. On appeal by respondent No. 1, the order was set aside and his allotment restored by the D. R. C., vide his order, dated 16‑3‑1961. Mst. Sahib Bibi's review application against that order was dismissed on 29‑6‑1961. Thereafter M. L. R. 89 was promulgated, as a result of which the Q. P. R. V. in favour of respondent No. 1 was withdrawn and in lieu thereof he was issued :N. R. V. An allocation order was issued in favour of respondent No. 1 on 2‑5‑1961 whereby he was again allotted land including the land in dispute. However, once again an allocation order was issued in favour of Mst. Sahib Bibi in respect of the same land of 16‑8‑1962. Respon dent No. 1, therefore, filed an appeal before the D. R. C. against the allocation of the disputed land in favour of Mst. Sahib Bibi, which was accepted vide order, dated 12‑1‑1963. This order was made on the basis of the earlier order, dated 16‑3‑1961, whereby respondent No. 1 had been found to be the prior allottee. Mst. Sahib Bibi then challenged this order through an appeal under section 18 of the Land Settlement Act before the Additional Settlement Com missioner, Dadu. In this appeal she also challenged the correctness of the order, dated 16‑3‑1961, earlier passed in favour of respondent No.

1. The appeal was accepted by the Additional Settlement Commissioner on 12‑12‑1967. Respondent No. 1 then filed a writ petition before the Sind High Court, which was accepted and the order of the Additional Settlement Commissioner, Dadu, dated 28‑2‑1966, in favour of Mst. Sahib Bibi was set aside as being without jurisdiction and of no legal effect. In the meantime, Mst. Sahib Bibi having expired, her legal representatives filed a petition for special leave to appeal before this Court against the judgment of the High Court, dated 6‑11‑1977, and leave was granted by order, dated 10‑4‑1979, to consider the question mentioned in the opening part of this judgment. We have heard Mr. M. F. Mukaram on behalf of the appellant and Mr. Akhtar Mahmood, Advocate‑on‑Record for respondent No.

4. Respondents Nos. 1 to 3, 5 and 6 have remained absent. The first question that arises for consideration is as to the effect of the compromise application submitted by the parties before the High Court. 1t is pertinent to mention that Writ Petition No. 237 of 1968 was filed in the High Court by respondent No. I alongwith four others including respondent No. 4 herein, Mir Muhammad, as petitioners. In the petition before the High Court, in paragraph No. 11, it was clearly mentioned that petitioners Nos. 2 and 3 (Wahid Bakbsh and Mir Muhammad) were the successors‑in‑interest of respondent No. 1 and had been joined in the petition accordingly. Under the signature of respondent No. 1 and his Advocate alone, a compromise appli cation was filed on 25‑1‑1974 before the High Court, stating that he waives all his tight, title and interest in respect of the allotment of land which was the subject‑matter of the petition and admits that Mst. Sahib Bibi was the prior allottee entitled to retain the allotment. On this basis, permission was sought to withdraw the petition. The learned Single Judge in Chambers passed the following order on this application :‑ "The petitioners and respondent No. I have settled their dispute and filed a compromise application. The department namely respondents Nos. 2 and 3 have not entered appearance, therefore, the petition is disposed of in terms of the compromise application." On 1‑3‑1974, an application was submitted by respondent No. 4 herein, through his Advocate alleging that the aforesaid order had been obtained by fraud as neither he nor his Advocate had signed the compromise application. It was pointed out that respondent No. 1 had no interest in the subject‑matter of the proceedings as he had sold his lands to one Wahid Bakhsh, who in turn had sold out the same to respondent No.

4. This application was disposed of after hearing the parties by the learned Single Judge by his order, dated 9‑12‑1974, whereby it was held that since respondent No. 4 had not consented to the terms of compromise, which affected his interests as a petitioner before the High Court, the order on the compromise application was not correct. Accordingly, the order was set aside and the petition was ordered to be disposed of on merits. Learned counsel for the appellants, in view of B these facts, was unable to argue that the compromise application could properly have been the basis for disposing of the writ petition. He, however 'I contended that although the Writ Petition could not be disposed of on the compromise application submitted by respondent No. 1, his admission to the effect that the allotment of Mst. Sahib Bibi was prior in time would be binding on respondent No. 4, who claims interest through him. We were, however, invited to refer to section 18 of the Evidence Act, by Mr. Akhtar Mahmood, learned counsel appearing for respondent No.

4. According to this Section statements, inter alia, made by‑ "(1) persons who have any proprietary or pecuniary interest in the subject‑matter of the proceedings, and who make the statement in their character of persons so interested, or (2) persons from whom the parties to the suit have derived their interest in the subject‑matter of the suit, are admissions if they are made during the continuance of the interest of the persons making the statements." A plain reading of this provision makes it clear that statement of a person, from whom a party to the suit has derived his interest in the subject‑matte of the suit or proceedings, are receivable as admissions against the latter, if the statements were made during the continuance of the interest of the former. It is only in regard to such statements, that the party against whom the C statement is tendered in evidence, can be said to be in "privity" with the person making a statement. Once the interest of the maker of such statement ceases to exist, the privity comes to an end and no statements thereafter can bind successor‑in‑interest on any principle. The ground upon which such state ments are received as admissions is that the maker of the statement and the person who has derived his interest from him are identified in interest. Thus, it was held in Bhagirarhi v. Pandit Onkar Nash (A I R 1924 Oudh 17), that under section 18 of the Evidence Act, statements made by persons from whom the parties to the suit have derived their interest in the subject‑matter of the suit are admissible as admissions, only when the admissions are of a date prior. to the date of transfer. Since in the present case, the so‑called admission was made b D respondent No. 1 much after he transferred his interest in favour of respondent No. 4, clearly this statement cannot be received as an admission binding on the latter. Learned counsel then urged that the order of the D. R. C., Dadu, dated 16‑3‑1961, in favour of respondent No. 1 was itself a nullity, since it was passed ex parse without hearing Mst. Sahib Bibi and without obtaining prior approval of the Settlement Commissioner. But as observed by the learned Single Judge of the High Court, no appeal had been filed against this order by Mst. Sahib Bibi. The order had, therefore, attained finality and remained in the field until the coming into force of Martial Law Regulation No. 89 and the withdrawal of the Q. P. R. of respondent No.

1. In the meantime, Mst. Sahib Bibi had filed only a review application which was dismissed. No further remedy was sought by her thereafter. The appellants are, therefore, not entitled to challenge this order at this stage. This aspect of the case has been fully dealt with in the judgment of the High Court with which we agree. For the foregoing reasons, there is no merit in this appeal, which is accordingly dismissed with costs. s. A. H. Appeal dismissed.