1982 PLP 272 (SCMR)

Date of hearing : 13th December 1981. SHAFI‑UR‑REHMAN, J.‑Leave to appeal was granted to the appellant, an allottee of agricultural land to examine whether the Additional Settlement Commissioner, Bahawalpur, has justifiably interpreted by his order dated 16‑1‑1971, an earlier order of the Lahore High Court in a writ petition filed by the appellant, and a learned Judge of the High Court on a second petition filed by the appellant, was justified in blessing and approving such an inter pretation.

2. The appellant is the son of Umar Din. He obtained allotment of 10J acres of land in Chak No. 178/Murad, Tehsil Chishtian, District Bahawalnagar in 1957. In 1962 Siraj Din, respondent, the informer, laid information that the appellant was not entitled to any such claim and the allotments obtained by him are bogus, and fraudulent. An inquiry was held. The information was found to be correct. The Deputy Settlement Commissioner resumed the allotment on 12‑11‑1962. An appeal followed by a revision filed by appellant failed. Ultimately, he invoked the constitutional jurisdiction of the Lahore High Court (Writ Petition No. 1464/R of 1964) challenging the resumption of the land from him. The learned Judge in the High Court found that the finding of fact that the allotment was fraudulent and bogus was not open to any exception or correction. Nevertheless, it was found that Umar Din, the father of the appellant, had filed a claim in his own name and had died in 1954. This claim was verified on 18‑3‑1964 for about 19 Bighas and the appellant was entitled to succeed alongwith his sister Alwm Bibi. The following operative order was passed: ‑ "It is true that the claim of Wali Muhammad son of Rehma did not relate to present petitioner, yet in 1957 when the land was allotted to him he was entitled, as successor of his father Umar Din to obtain the allotment and transfer of some land. Even if the claim had not been verified by that time, it cannot be disputed that the petitioner does not hold a verified claim as a successor of his father Umar Din and he cannot be deprived of that entitlement simply on account of the fact that at one stage he obtained land against a claim which did not belong to him. For the foregoing reasons the petitioners accepted to the extent the petitioner shall be allowed to retain that much area of the land in dispute to which he would be entitled as successor of his father Umar Din. The share, which could fall to the petitioner's sister Mst. Alam Bibi is not disputed before rue and that is a matter to be separately decided by the authorities concerned. The respondent Siraj Din would be entitled to the remaining land as an informant . . . . . "

3. The Deputy Settlement Commissioner on 26‑3‑1970 allowed the settlement of the claim of appellant as heir of his father as also the heir of his sister. 'This was done in the absence of the informer. The informer filed an application on 18.9‑1970 complaining that the initial allotment of the appellant being fraudulent, the protection enjoyed by him, could not be enlarged so as to include also the share of Alam Bibi. The application was allowed by the Deputy Settlement Commissioner on 15‑10‑1970 and one‑third share of Alam Bibi was resumed, which order has been maintained by the Additional Settlement Commissioner in appeal and by the Settlement Commissioner in revision and the constitutional petition was also dismissed.

4. The learned counsel for the appellant has taken up two grounds for challenging the order impugned in this appeal. Firstly, it is contended that the High Court by its earlier decision certainly protected whatever, share the appellant received as heir of his father. At the same time, what the appell ant was to receive as an heir of Alam Bibi was left to be decided by the Settle ment Authorities. The claim to that share and allotment against it was not negatived but was left completely open for the Settlement Authorities to decide. Secondly, it is contended that the Deputy Settlement Commissioner having once adjudicated in the matter by settling the entitlement of the appellant in both the capacities on 26‑3‑1970, he could not reopen the matter and review his own order without getting the necessary permission.

5. The facts stated make it clear that the allotment obtained by the appellant against the claim of Wali Muhammad son of Rehma was fraudulent ab initio to the case. If he had any other capacity and any other entitlement, it could not as a matter of legal right be got settled against the allotment or settlement to which such a taint attached. The only justification and pro tection that can be claimed for it was confined to what was provided in the judgment of the Lahore High Court dated 17‑3‑1969 which was not challenged: That judgment protected the interest of the appellant only to the extent of his entitlement as an heir of Umar Din. By leaving the other questions open it cannot be said that it was a permission to the subordinate Settlement Authorities to allow a similar adjustment notwithstanding the taint, the fraud and the infirmity attaching to that allotment. Besides, the respondent had been successful in pointing out and establishing the fraud and had a right in law in such portion of the property as became available on resumption. Therefore, the resumption itself had to follow certain principles known to law and accepted as reasonable, proper and of good conscience. We are clear, therefore, that the appellant could not in law claim protection for the interest that he obtained by way of inheritance from his sister Alam Bibi. Settlement Authorities were possessed of no such power in the law and the judgment of High Court did not authorise them to do any such thing whereby the share of Alam Bibi coming to the appellant should also be liable to adjustment against the allotment. We find no merit whatsoever in the appeal and dismiss the same with no order as to costs. Appeal dismissed.