1987 PLP 1337 (SCMR)

MIAN BURHANUDDIN KHAN, J.--Facts giving rise to this case are that a Mukhbari application was filed by respondent No.4 Nawab Hasan Yar Jang and others against the allotment of land to Muhammad Siddique, predecessor-in-interest of Abdul Ghani respondent No. l herein, in the Court of the Chief Settlement Commissioner alleging that Muhammad Siddique had obtained land at Khata No.261 in village Durgahpur, Tehsil and District Gujranwala after entering bogus units therein and the said land was liable to be cancelled. After receiving a report on the allegations made against Muhammad Siddique the land allotted to him was cancelled per order dated 13-1-1977.

2. Feeling aggrieved of the aforesaid order dated 13‑1‑1977 Abdul Ghani respondent No. l, who had purchased the land in question from Muhammad Siddique the original allottee, filed a writ petition which was accepted by a learned single Bench of the Lahore High Court vide the impugned judgment dated 21‑4‑1986 in terms that half of the land purchased by the petitioner (Abdul Ghani respondent No. l herein) allotted to Muhammad Siddique at Khata No.261 in village Durgahpur TehsH and District Gujranwala and he shall be entitled to remain in peaceful possession thereof. Now, Mst. Shakila Begum petitioner herein seeks to appeal against the impugned judgment on the following grounds: ‑ (i) That she had purchased the land in question from Nawab Hasan Yar Jang respondent No.4 after the same had been allotted in his name, for consideration. (ii) That Abdul Ghani respondent No. l did not implead the petitioner as a party in the writ petition resulting in the impugned judgment dated 21‑4‑1986. (iii) That even otherwise she remained unaware of these proceedings and came to know about the impugned order on 20‑6‑1986 when Abdul Ghani respondent No. l came to the village and claimed to have won the case. (iv) That the writ petition suffered from gross laches from which no satisfactory explanation was submitted. (v) That earlier the heirs of Muhammad Siddique had filed Writ Petition No.413 of 1977 but they withdrew the same on 18‑9‑1978. These submissions were not considered tenable and the writ petition was accepted. (vi) That the decision of the earlier Settlement Revision could not per se be made a ground to accept the writ petition inasmuch as at that time the circumstance that Muhammad Siddique did not have any claim pending satisfaction, was not brought to the notice of the learned High Court Judges. (vii) That Muhammad Siddique being a non‑claimant, the very allotment in his favour was void ab initio and the decision of the Settlement Revision petition could not be treated as a bar to Mukhbari application. (viii) That the allotment in the name of Muhammad Siddique was liable to be cancelled inasmuch as a valid Mukhbari application had been presented before and entertained by a competent authority before the repeal of the evacuee laws. (ix) That withdrawal of the earlier writ petition by the legal heirs of Muhammad Siddique would operate as res judicata qua the present petition out of which the impugned order has arisen. (x) That the petitioner being a necessary party, had not been impleaded intentionally by Abdul Ghani and on this ground also the impugned judgment merits to be set aside.

3. On going through the record, we find that notice was issued to respondent No. l on 15‑7‑1986 and was repeated vide orders of this Court dated 20‑12‑1986 and 10‑1‑1987. Respondent alongwith his counsel present. Heard. We have examined the contentions raised by the learned counsel for the parties. The petition is converted into appeal. The petitioner had been made a party to the proceedings in the writ petition as she was vitally interested in the subject‑matter of the petition. As the question of merit raised in the High Court was not raised before the Settlement authority, the writ petition, therefore, should not have been allowed in the discretionary jurisdiction. Hence, we set aside the impugned judgment of the High Court, and remand the case to the notified officer for re‑hearing after affording opportunity of hearing to the petitioner. Appeal allowed. No order as to costs. M.I./S.31/S Appeal accepted.