P L D 1973 Lahore 128 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑‑This is a Letters Patent Appeal against the order dated 22nd of September 1971, of our learned brother Shameem Hussain Kadri, J., who dismissed the writ petition of the appellant whereby he had sought to have the order of the Settlement Commissioner dated 7th of September 1971 declared as without lawful authority.

2. The facts which are relevant for the disposal of this appeal are that the appellants were allottees of land comprised in Killas Nos. 6, 14, 15, 16 of Square No. 5 and Kellas Nos. 16/2 and 22/2 of Square No. 9 in Chak No. 223/R.B, Tehsil and District Lyallpur. After their claim for land abandoned in India was verified, the land in their temporary allotment was confirmed to them towards the satisfaction of their entire entitlement.

3. Sher Muhammad respondent was subsequently confirmed land in the said Chak including Killa No. 14/2 of Square No. 5 and Killa No. 25 of Square No.

54. This allotment was however cancelled under sections 10 and 11 of Land Settlement Act on the ground that his claim was bogus. The land, therefore, became available for fresh allotment.

4. Meanwhile on reverification of his entitlement Barkat Ali appellant's claim was increased by fifteen units. Ghulam Muhammad father of the appellants and Ali Muhammad, their uncle, also had a verified claim of 103 units. On their death the appellants became entitled to succeed to the same. The appellants thus claimed that they had a right to the allotment of 118 units. The Assistant Settlement Commissioner, by his order dated the 15th of April 1970 proposed Killa No. 14/2 of Square No. 5 and Killa No. 25‑min of Square No. 54 measuring 6 kanals, 9 marlas equal to 67 units in favour of Barkat Ali appellant, Killa No. 25 min of square No. 54 measuring 2 kanals, 9 marlas equal to 25 units in favour of Muhammad Ali and the rest of the land measuring 4 kanals, 9 marlas in Killa No. 25‑min of Square No. 54 to Sher Muhammad. The Deputy Settlement Commis sioner however, by his order dated the 18th April 1970, confirmed only 1 kanal, 7 marlas comprising in Killa No. 25‑min of Square No. 54 equal to 15 units in the name of Barkat Ali. He did not confirm any land in the name of Muhammad Ali or Sher Muhammad respondent and confirmed the rest of the land measur ing 12 kanals equal to 120 units in the name of Wali Muhammad. The Additional Settlement Commissioner accepted the appeal preferred by the appellants on the 22nd of June 1971 and he ordered the confirmation of the land as was proposed by the Assistant Settle ment Commissioner. Wali Muhammad filed an appeal against this order which was accepted by the Settlement Commissioner on the 7th of September 1970 and he restored the order of the Deputy Settlement Commissioner dated the 18th of April 1970 with the result that the appellant Barkat Ali remained allottee of only 1 kanal, 7 marlas equal to 15 units in Killa No. 25‑min of Square No. 54 and Wali Muhammad respondent became the allottee of the rest of the land. The appellant filed the writ petition challeng ing the order of the Settlement Commissioner, and the same was dismissed by the impugned order.

5. The Letters Patent Appeal came up for hearing on the 15th of November 1971 when the following order was passed :‑ "It is admitted by the learned counsel that the personal claim of Barkat Ali, appellant No. 1, stands fully satisfied by the impugned order. Barkat Ali, however, claims that he has inherited from Ghulam Muhammad, his father and Ali Muhammad, his uncle, fifty‑one units which had been transfer red to the Chak before the land became available for allotment. He, on these promises, contends that he has the right to ask for allotment of land in lieu of the unit which he had inherited, being a temporary allottee in the Chak under paragraph 7 of the Instructions (printed at page 146 of the Displaced Persons (Land Settlement) Act, 1958, by M. A. Latif).

2. The question which arises for determination is whether Ghulam Muhammad or Ali Muhammad, if alive when the land became available in March 1971, could claim preference over another claimant who was an allottee in that Chak, and, if not, could their heir, namely, appellant No. 1, claim any such right in himself simply because ho was a temporary allottee in the Chak. Learned counsel seeks an adjourment to study law on the point. To come up on the 17th of November 1971." It is not disputed by the learned counsel that Ghulam Muhammad and Ali Muhammad had submitted their form for some other place and it was subsequently transferred to this Chak. The learned counsel failed to draw our attention to any provision of law in support of his contention. Under paragraph 7 of the Rehabilitation Scheme allottees are to be given preference to non allottees in the congested area. Ghulam Muhammad and Ali Muhammad, if they bad been alive, could not compete with the respondent Wali Muhammad in the allotment of the land for the reason that the latter was an allottee whereas they were not. If the appellants succeeded to them as their heirs, their position for allotment in lieu of the claim of the deceased could not be superior to that of the deceased themselves. Thus, when seeking an allotment in lieu of the entitlement of Ghulam Muhammad and Ali Muhammad, they vis‑a‑vis the allottees of the Chak would be deemed to be non‑allottees only, notwithstanding the fact that they with respect to their personal claim were allottees in that Chak. We are of the opinion that if a person has his personal entitlement and also the entitlement as heir of some other right holders, he can, when seeking allotment, claim to be allottee and compete with other allottees in the village in respect of his own entitlement; and if he claims the allotment also as an heir of a right‑holder who is not an allottee in that village, they will be deemed to be non‑allottees like the person under whom they claimed. In this view of the matter the appellants could not claim preference over the respondent in respect of the land equal to 103 units.

6. It is contended by the learned counsel that the Additional Settlement Commissioner in his order dated the 10th of March 1970 had directed that the appellants should be allotted at least land equal to 23 units from the land which had been resumed from Sher Muhammad by cancelling his allotment and that the order refusing the claim of the appellant except 15 units being in disregard of that order was without lawful authority. The observation of the Additional Settlement Commissioner as delegate of the Chief Settlement Commissioner in his order dated 10th of March 1,70, viz. "that the petitioners have only 23 units of their own entitlement for satisfaction. They should be accommodated to this extent only" was based on an assumption that the tutus to this extent of their entitlement were still to be satisfied. It is now established on record that Barkat Ali appellant alone had 15 units of his own entitlement for satisfaction. The direction for satisfying 23 units therefore, was based on a mistaken assumption and could not be given effect to when the units pending satisfaction were only 15.

7. It was also contended by the learned counsel that Barkat Ali was a temporary allottee of Killa No. 14/2 in Square No. 3 and that even if he was not to be allotted the land in excess of 15 units, which were still to be satisfied from his entitlement, he should have been given Killa No. 14/2 of Square No. 5 and not Killa No. 25‑min of Square No.

54. The appellant would have been on a firm footing if he bad raised this plea against an order of the Deputy Settlement Commissioner who confirmed him land in Killa No. 25‑min of square No.

54. He however, did not challenge the decision of the Deputy Settlement Commissioner on this ground and it is manifest from the order of the Settlement Commissioner also that this question was not raised before him either. We cannot, in the circumstances, give effect to his contention in the letters patent appeal.

8. We find the order of the learned Single Judge unexcep tionable. The appeal is dismissed in limine. K. B. A. Appeal dismissed in limine.