West Pakistan Rehabilitation Settlement Scheme

Predecessor-in-interest of the parties migrated from India and he was holding valuable right in the form of verified claim regarding land left by him in India for which he was holding land under temporary allotment

Plaintiffs were children of predeceased son of the predecessor-in-interest of the parties who, after temporary allotment, executed, will to the extent of half of the allotted property in favour of the plaintiffs

Rehabilitation Authorities keeping in view the will executed by the predecessor-in-interest of the parties, decided question of inheritance under the provision of para.46 of West Pakistan Rehabilitation Settlement Scheme and allotted half of the land in favour of the plaintiffs

Defendants assailed the order of Rehabilitation Authorities and finally Supreme Court declared the allotment against the provisions of para:46 of West Pakistan Rehabilitation Settlement Scheme and the whole land was allotted to the defendants

Plaintiffs filed declaratory suit on the basis of will executed in their favour and claimed enforcement of the same

Trial Court as well as Appellate Court dismissed the suit and appeal of the plaintiffs respectively

High Court in exercise of revisional jurisdiction set aside the judgments and decrees passed by both the Courts below resultantly the suit was decreed

Plea raised by the defendants was that principle of constructive res judicata was applicable as the matter had already been decided up to Supreme Court

Validity

Rehabilitation Authorities under para.46 of Rehabilitation Settlement Scheme were to pass an order regarding inheritance of a claim holder which was a special law, therefore, only the question of inheritance between direct heirs of the claim holder was the subject-matter of such proceedings and not the claims of strangers or third party

In earlier proceedings direct heirs of the predecessor-in-interest of the parties were the parties only

Claim based on will could neither be raised nor decided in earlier proceedings the scope of which was limited

Claim based on will being a third party claim was an independent matter which could be raised before Civil Court for determination

Rehabilitation Authorities were not vested with the jurisdiction to entertain such claim, therefore, condition to attract principle of res judicata that previous Court should be a Court having jurisdiction to decide the question raised in subsequent proceedings was also not fulfilled

Findings recorded by High Court in the judgment did not suffer from any legal infirmity

Appeal was dismissed by the Supreme Court.

Settlement Commissioner allowed revision petition filed by respondents on the ground that appellant being niece of temporary allottee would not fall in definition of relatives and further being a married woman would lose right of allotment of land, if any, under para. 7(5) of West Pakistan Rehabilitation and Settlement Scheme; and that another appellant had inferior right to that of respondent who was to be given preference to the extent of certain units

High Court dismissed Constitutional petition filed by appellants on the ground that transfer of claim of their predecessor in disputed village was in violation of para. 13-A of Rehabilitation and Settlement Scheme, thus, they would have no right for allotment in that village

Validity

Factual position on record appeared to be different to that of order of Settlement Commissioner, which was not sustainable

RL-II placed on record showed that land proposed in name of respondent as Mukhbari unit was cancelled subsequently and he was not a temporary allottee in village on the date of disposal of revision petition by Settlement Commissioner; and that claim of other respondent in full had already been satisfied and nothing was left to be adjusted in the village in preference to appellant

Nothing on record to show that transfer of units of appellants in the village was either made by an incompetent officer or same was against record

Such objection had neither been raised by parties at any stage nor by Settlement Commissioner, who was in possession of relevant record, rather had treated transfer in accordance with law

In absence of anything to contrary, transfe: of claim of appellants would be deemed to be made by Competent Authority

Respondents having no right of allotment in village could not defeat entitlement of appellants

Both paternal and maternal uncles would be included in the term "relatives" as used in para. 7(5) of the West Pakistan Rehabilitation and Settlement Scheme

Such a person, notwithstanding his marital status, if fell in term "relatives", would be entitled to allotment under Para. 7(5) of the Scheme

Appellant (niece of the temporary allottee) would be deemed to be sitting allottee through her predecessor in the village and despite being married would be entitled for allotment of land under para. 7(5) of the Scheme

Supreme Court allowed appeal, restored allotment in the names of appellants and set aside impugned judgment.

After allotment of land against verified claim to the predecessor of petitioner entitlement certificate was revised and suitland was proposed to be allotted to him, which in absence of confirmation order stood reverted to Central Government by sanctioning correction mutation and was then allotted to private respondents

Order of sanctioning correction mutation was set aside by High Court in Constitutional petition filed by predecessor of petitioner and case was remanded to Settlement Commissioner for its fresh decision in accordance with law keeping in view his entitlement

Settlement Commissioner, after remand, upheld correction of mutation and allotment in favour of private respondents

Validity

Chief Settlement Commissioner while passing impugned order had opted to go by statement of Patwari instead of looking into law and follow guidelines/observations contained in order of the High Court

Absence of confirmation order in respect of proposed land would not derogate from right and interest vesting in its claimant

Settlement Authority was statutorily bound to pass formal orders of confirmation and hand over possession of land proposed in favour of claimant after expiry of 15 days

Fresh allotment had to include land previously allotted to predecessor of petitioners as per mandatory provisions of Para. 7(2) of Scrutiny of Claims (Evacuee Property) Regulation, 1961

No lawful reason was shown in impugned order for cancellation of proposal, which was made in accordance with law prevalent at that tune

High Court accepted Constitutional petition and declared impugned order, correction of mutation, report of Patwari, allotment made in favour of private respondents and its subsequent sale by them as illegal, void and without lawful authority.

Contention that land in dispute was originally an evacuee land which though allotted in the form of specific field numbers to the vendor, remained a joint land and the plaintiff being a co-sharer in the Khata earlier with the evacuees and now with the vendor had a preferential right of pre-emption had no merit

High Court's view that by making allotment and transfer of field number, to the vendor, Settlement Authorities had actually partitioned the joint Khata within terms of para. 7 of Part II of West Pakistan Rehabilitation Settlement Scheme, whereafter and whereunder, vendor became its exclusive owner and thus petitioner could not claim any right of joint ownership in the so allotted and transferred land, being in accord with provisions of Rehabilitation Settlement Scheme, no interference was called for

Leave refused.

[Pre-emption].

Punjab Land Records Manual, paras. 7.49 & 7.51-Predecessor-in-interest of appellants getting allotment of land as an informant and after such land was confirmed in his name against his verified claim raising objection in his application before Chief Settlement and Rehabilitation Commissioner that classification relied upon while allotting land in question to him was incorrect and not in accordance with provisions laid down in paras. 29 & 58(a) of Rehabilitation Settlement Scheme and claimed more Produce Index Units contending that classification of land as entered in special Jamabandi and Khasra Girdawari for Rabi 1947 differed

Additional Settlement Commissioner, in compliance with directions of Chief Settlement and Rehabilitation Commissioner, getting necessary

Leave to appeal granted to consider whether view taken by High Court was wrong in principle since precedent relied upon by it was a case between different parties and decision was inconsistent with procedure prescribed in para. 13 of Rehabilitation Settlement Scheme.

Plea that cancellation order was passed behind his back, without notice and without allowing him opportunity to exercise choice, not established from record

Impugned order was passed in appellant's presence and after allowing him choice

Instructions contained in para. 23 of Supplementary Rural Scheme No.l, held, was not applicable at all in such case

Appeal being devoid of merits, dismissed.

Succession to deceased, held, opened in India within meaning of para. 46 (before amendment) of the Scheme and inheritance was to be decided in accordance with customary law or the law applicable to parties in prescribed territory of India as the case was to be.-[Muhammaden Law].

S. 10-Displaced Persons (Land Settlement) Rules, 1959, r. 7 read with West Pakistan Rehabilitation Settlement Scheme, Part 11, paras. 15 & 16-Partition of joint khata-Nothing on record to indicate that evacuee was in hissadari possession of land or that specific khasra number was allotted to respondent-Held, Rehabilitation and Settlement Authorities in circumstances of case, cannot be said to have no jurisdiction to partition joint khata or that land stood permanently settled on such respondent.

Temporary allottee of evacuee land, held, had no right to oblige Rehabilitation and Settlement Authorities to allot and permanently settle such land against their claims

Land claimed by petitioners no longer part of compensation pool and losing its evacuee character and was State land

Claim of petitioner against such land, held, could not be accepted

Petition being without merits, dismissed

Provisional Constitution Order(1 of 1981), Art.9.

Sched. V read with Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 16, West Pakistan Rehabilitation and Settlement Scheme, Part, I, Part II, paras. 19 & 29 and Board of Revenue Memorandum No. 1006-63/2071-R(L), dated 12-4-1963-Verification of claim for agricultural land by displaced person from agreed area-Special jamabandis in respect of particular area not available and no likelihood of same being made available in future-Adoption of alternate method in vogue for verification of similar claims under Sched. V of Act of 1956-Held, just and proper in circumstances of case-Section 16 of Act of 1958 not applicable in such case.

Appellant allowed by Rehabilitation Authority to keep land in dispute for 20 years in accordance with terms of mortgage and to vacate land on expiry on such period

Subsequent instructions withdrawing allotments held by mortgagees of Muslim mortgagors and transplanting mortgagees on land held by Muslim mortgagors and paying mortgagees of non-Muslim mortgagors amount of mortgage money from compensation pool, held, deprived mortgagees, other than those holding Rehn Meadi of allotments previously made in their favour and gave mere lien on land held by their Muslim mortgagors-Instructions, held, intended to deal with mortgagees other than those falling under category of Rehn Maddi and such particular category of mortgage specifically excluded from purview of benefits of Rehabilitation Settlement Scheme.

Wakf-Trust-Waqf attaching land to mosque and no benefit reserved by founder for himself -Property enuring to benefit of mankind-Claimant shown in records as Manager-Property constituted a waqf and not a trust Area of land not being much, waqf constituted a minor religious institution-Allotment of such land in name of mosque, held, could be made in Sahiwal District-West Pakistan Rehabilitation Settlement Scheme, para. 56(3).

Person not entitled to get land against his mortgaged Units where proprietary Units given to him exceed one thousand Units-Power of allotment carries with it power to cancel same-Allottee granted land in excess of what actually was due to him-Assistant Settlement and Rehabilitation Commissioner competent to cancel excess allotment-Discretionary power under Art. 98, Constitution of Pakistan (1962), not exercised to interfere with order of cancellation on mere contention that after promulgation of Displaced Persons (Land Settlement) Act, 1958 only Chief Settlement Commissioner or his delegatee could cancel or vary allotment Constitution of Pakistan (1962), Art. 98-Displaced Persons (Land Settlement) Act (XGVII of 1958), Ss. 10 & 11.

S. 2 (3) read with West Pakistan Rehabilitation Settlement Scheme, paras. 6 and 16 (Part II) and Chief Settlement Commissioner's Letter No, 56-LFR-6189-R (P), dated 17th April 1961 - Words "ghair mumkin" and "ghair mumkin godi".

Piece of land becoming "ghair mumkm"-not taken out of ambit of agriculture for all times to come-Words only mean that land is not being used for agriculture for time being-Potential of such land as land for agricultural purposes-Not affected, except when subject to some perinanent structure-Land for tune being used for removing earth to feed brick kiln (ghair mumkin godi), held, held for agricultural purposes and falls within definition of "land"

Allotment of such land cannot be cancelled on ground of its being entered as brick kiln in revenue records or because it formed part of an industrial concern.

Mutation of sale of land (both parties being Muslims) entered in India before Partition but not confirmed till then and declared after Partition as "kal adam"

Provisions of paragraphs 49 & 50, held, not applicable, in circumstances.

Will of property situated in India made in 1944 Testator migrating to Pakistan after 14-8-1947-Legatees not entitled to allotment under such will.

Schedule, para. 1-(Transfer of house)-Number of house as originally transferred different from number as subsequently entered in P. T. O.-Difference immaterial so long as dispute between rival parties relates to "same" house.

-S. 6West Pakistan Rehabilitation Settlement Scheme, read with Correction Slip No. 2-P-1 dated 15-8-57-Land allotted to displaced persons under Rehabilitation Scheme-No cultivated (abad) land available for settlement-Claimants of agricultural land settled on uncultivated (ghairabad) lanai-Produce indices units to be calculated in accordance with formula enunciated in Correction Slip No. 2-P-1 dated 15-8-57 issued by Board of Revenue West Pakistan-Words "Banjar-Jadid, Banjar-Qadim and Chair-mumkin soil wherever they exist" in footnote. 1 (d) of Introductory Note in Pamphlet "Produce Indices of Hyderabad and Khairpur Divisions (1957) issued under authority of. Chief Settlement Commissioner-Refer to such lands in Sind region irrespective of there bring no mention of them in Revenue Records or special Jamabandi v prepared by Settlement Department - Correction Slip No. 4-P.1, dated 9-1-62-Not retrospective in operation

Evacuee land-Questions of succession or alienation arising before confirmation of allotment-To be determined by Rehabilitation Authorities alone-Revenue Officers have no jurisdiction to decide mutation in respect of unsettled claim

West Pakistan Rehabilitation Settlement Scheme, Para. 46.

S. 45-Ejectment-Tenant in possession of land from pre partition period but not holding valid permit under para. 18, Part I, Chapter III, West Pakistan Rehabilitation Settlement Scheme Held, liable to ejectment-West Pakistan Rehabilitation Settlement Scheme, Part 1, Chapter III, Paras. 17, 18 & 19.

West Pakistan Rehabilitation Settlement Scheme Scheme recognises principle of first come first served-Temporary allottees have preference over non-allottees-Allotment of person other than temporary allotee

Could be challenged only by temporary allottee and not by a rank outsider.

West Pakistan Rehabilitation Settlement Scheme West Pakistan Rehabilitation Settlement Scheme para. 18-ATenant bound to pay rent to allottee at rate of batai, prevalent in locality, provided it does not exceed 50% of produce-Tenant liable to ejectment for failure to pay rent.

West Pakistan Rehabilitation Settlement Scheme West Pakistan Rehabilitation Settlement Scheme, Para. 46Grandson and grand-daughter of refugee right-holder are entitled to inherit property of their grandfather.