1976 PLP 197 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑--This appeal stood abated as Jhands Khan appellant 'heroin died o0 15‑11‑1970 Application for bringing on record his legal representatives was not made till the 300 of March :4972, and there is also a potation for vetting aside the order abatement which has been seriously contested. A preliminary point has been, raised on behalf of the respondents that the appeal having abated, the order of abatement should not he set aside. The grounds taken in the petition for setting aside the abatement are the' the deceased appellant Jhanda was alone prosecuting this litigation of which his legal representatives had no knowledge and it was only on receipt of a. letter from the counsel in March 1972, that they learnt about the pendency of the appeal and of the legal requirement of bringing on record the; name of the legal representatives of the deceased's father. This hardly a carves conviction as Jhanda was survived by three sons, namely, Faqir Muhammad Yaqoob and Yousaf and an unmarried daughter Msr. Batool Begum .end it is difficult to believe that the three grown‑up sons of Jhanda were wholly unaware of the litigation directly involving their interests it appears from para. 3 of this application that the legal representatives of Jhanda were labouring under a mis‑apprehension that no time limit was fixed for bringing on record the legal representatives of the appellant. Again a delayed concise statement was presented on behalf of the appellant on 1‑5‑1371 accompanied by an application for condonation of delay in its submission. The ground taken was that the statement had to be prepared consultation with the clients who were none else than the: legal representatives of Jhanda who heal admittedly died more than six months earlier. On the other hand, the respondents have placed on the record three affidavits, sworn by Rehmat Ali and Farzand Ali, Lambardars and Sher Muhammad, Chowkidar of the village purporting to show that Jhanada had all along lived in the village till his death with his son 5'aqoo'o. Although in the re‑joinder, it has been contended by the learned counsel :or the appellant that the above‑mentioned deponents were inimical towards e 1handa, yet no counter affidavit has been filed by Yaqoob to controvert the allegation that his far was living with him till his death. In view of the a above position, we are not satisfied wing flit explanation offered for setting aside the abatement. Even can merits, the appeal is devoid of substance. The disputes is confined only to mortgagee rights of Jhanda in respect of land belonging to Muslim mortgagors who had also migrated to Pakistan. Admittedly, Jhanda was acct entitled to any land in lieu of these units and the excess area originally allotted to him in this regard was cancelled from his name on 12‑1‑1961 and was allotted in favour of the respondents on 14.2‑1961. These orders were consistently upheld by the Settlement and Rehabilitation Authorities and tree writ petition filed by Jhanda was also dismissed by the High Court vide order dated 12‑2‑1967, from which have to appeal was sought. In, support of petition for leave to appeal, a. two‑fold contention was raised before the admitting Bench of this Court: Firstly that Jhanda had become entitled to purchase land initially allotted to him in lieu of mortgagee rights, and Secondly, that the procedure laid down in paras. 7 and', 7‑A of the Settlement Scheme for the safe‑guard of his mortgagee rights had not been followed in his case. In the leave granting order, dated 13 ‑10‑1967. the first ground was overrule' for the reason that before the promulgation of the Scheme regarding option to purchase hand allotted in lieu of mortgagee rights, the land had already been cancelled from the, name of Jhanda and allotted to the respondents. Leave was, therefore granted to consider only the second contention relating to the application of paras. `7 and 7‑A of the land Settlement Scheme. We heard the learned counsel quite at length. He was not able to satisfy us that Jhanda had ever filed any declaration in Form M. C. E. I, in respect of his mortgagee units, which under the relevant Scheme was the first pre‑requisite for the determination of the mortgage money to which alone he could be found entitled in the ultimate analysis. Having in‑vain tried to wriggle out of this indefensible position, learned counsel tried to explain away the non‑submission of the form on the ground that on re verification, the appellant's mortgagee units were erroneously omitted by the Central Record Office. which subsequently realizing its mistake restored the original verification as detailed in the "Ford Haqeeat" at page 37 of the record. Be that as it may, however the fact remains that the appellant was only entitled to payment of mortgage money by the Muslim mortgagors D which right he forfeited for not having followed the prescribed procedure. As a last resort, learned counsel submitted that his clients were still in possession of 117 units which were in excess of the entitlement of the respondents and remained unallotted, and that Jhanda deceased having already deposited the full price of these units within the extended limitation, he was entitled at least to their purchase as these were not hit by the prohibition contained in the leave granting order. This is a matter which falls within the exclusive jurisdiction of the Settlement Authorities and to approach them the appellant needs no judicial licence from this Court. As a result of the above discussion, the appeal is dismissed as having abated and also on merits. Appeal dismissed.