1988 PLP 2284 (CLC)

‑‑‑Ss. 10 & 11‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)‑‑Mukhbari application‑‑ Competency‑ Mukhbari application having been filed on 28‑2‑1974, held, could competently be decided under S.2(2) of Act (XIV of 1975) even after repeal of evacuee laws as same was pending on 30‑6‑1974. Abdur Rashid Qureshi for Petitioners. Sardar Abdul Latif and Sh. Abdul Aziz for Respondents. Date of hearing: 16th March, 1988. Shahid Ejaz and 5 others, petitioners herein, have challenged the validity of order, dated 17‑11‑1976 whereby the 'Mukhbari' application filed by respondents Nos. 2 and 3 was accepted and the order, dated 27‑12‑1983 whereby the land in question was directed to be allotted in implementation of the aforesaid order.

2. The relevant facts of the case, are that the land in dispute was allotted to one Hashmat Bibi in March 1960. The name of Muhammad Akbar, the predecessor‑in‑interest of petitioners Nos. 3 to 6, was also shown written by pencil in the allotment register for the year 1960. Muhammad Akbar claimed that he was Jammu and Kashmir refugee and entitled to allotment of the aforesaid land. Afterwards the aforementioned entry was given effect to, in the revenue record. On 28‑2‑1974 Abdul Qayyum and Abdul Hakim respondents moved 'Mukhbari' application against Muhammad Akbar which was decided on 17‑11‑1976 by Additional Settlement Commissioner with powers of Chief Settlement Commissioner, Gujranwala. He cancelled the allotment of the land in dispute from the name of Muhammad Akbar. Muhammad Akbar assailed the aforesaid order by instituting a suit on 4‑7‑1977 before the Civil Court at Gujranwala. The suit was dismissed on 14‑6‑1980 by the learned Senior Civil Judge, Gujranwala but on appeal the judgment and decree, dated 14‑6‑1980 were set aside and the case was remanded for retrial. The learned trial Court thereafter framed following issues:‑ (1) Whether the Court has no jurisdiction to try the suit? O.P.D. (2) Whether the plaintiff has no locus standi to file the suit? O. P. D. (3) Relief. After recording evidence led by the parties the learned Senior Civil Judge vide judgment and decree dated 10‑11‑1987 dismissed the suit. It is significant to mention that during the pendency of the suit, on an application moved by Abdul Qayyum and Abdul Hakim respondents the land in dispute was allotted to them, on 27‑12‑1983. Hence this petition.

3. Learned counsel for petitioners contended that Muhammad Akbar, the predecessor‑in‑interest of the petitioners being Jammu and Kashmir refugee was entitled to the allotment of the aforesaid land and on his death it devolved on the petitioners, It was next contended that the impugned order passed by the Additional Settlement Commissioner on 17‑11‑1976 was ex parte and thus nullity in law.

4. Learned counsel for the respondents opposed this Vetition and on the contrary submitted that the land in dispute was never allotted to Muhammad Akbar. He got fictitious allotment made in his favour, the Additional Settlement Commissioner was, therefore, competent to cancel the same. It was also submitted that the petitioners' predecessor having filed the suit challenging the impugned order, dated 17‑11‑1976 and contesting the same could not maintain the present petition assailing order, dated 17‑11‑1976 after a lapse of 8 years. It was further submitted that even if it is assumed that Muhammad Akbar was refugee from Jammu and Kashmir and the land was allotted for his subsistence the allotment of the land was not heritable and the petitioners cannot maintain this petition being heirs of Muhammad Akbar. In support of his submission he relied on Feroze Bibi v. Settlement Commissioner (Land) and another 1988 S C M R 1228.

5. I have considered the contentions raised by learned counsel for the parties and find that the petitioners had already availed the remedy by filing a suit on 4‑7‑1977 challenging the impugned order and having failed to achieve their object, they cannot maintain this petition.

6. The perusal of the impugned order, dated 17‑11‑1976 also shows that the petitioners were duly heard by the Additional Settlement Commissioner when the impugned order was passed by him as such it B does not lie in their mouth, to controvert the fact which is otherwise established on the record. Moreover, the petitioners have approached this Court after lapse of about 8 years, when they had already filed C a civil suit against the aforesaid order, this petition, therefore, suffers from laches and is liable to be dismissed on this ground alone. As regards the next contention it is observed that the order, dated 27‑12‑1983 was passed in implementation of the order, dated 17‑11‑1976 as such cannot be called in question when the principal order still holds the field. So far as the last contention of the learned counsel is concerned, it may be noticed that the 'Mukhbari' application having been filed E on 28‑2‑1974 could competently be decided under subsection (2) o section 2 of Act XIV of 1975, even after the repeal of the Evacuee Laws as the same was pending decision on 30‑6‑1974.

7. For the foregoing reasons, I find no merit in this petition and dismiss it with no order as to costs. H. B. T. /S‑232/L Petition dismissed.