TASSADUQ HUSSAIN JILLANI, J.----This judgment shall dispose of Civil Appeals Nos. 1615 of 1999 and 1616 of 1999 as they are directed against the same judgment dated 16-10-1997 passed by a learned Judge of the Lahore High Court vide which he allowed Constitutional Petitions filed by the respondents (Writ Petition No,1536 of 1994 and Writ Petition No,660 of 1995). In terms of the impugned judgment the order dated 31-5-1994 (challenged in Writ Petition No,1536 of 1994) passed by Deputy Commissioner/Collector, Rahimyar Khan directing cancellation of sale mutation in favour of respondents (writ petitioners in the said petition) and the order dated 1-6-1994 passed by Tehsildar Khanpur cancelling the mutations in favour of the respondent (writ petitioners in Writ Petition No,660 of 1995) were set aside.
2. Learned counsel for the appellants in support of these appeals submitted that the land subject- matter of these appeals known as "Shanumalwala/Sanwala Mal Kaliyan Das Wala" measuring 5 Acres 2 Kanals 5 Marlas in Mouza Khanpur, District Rahimyar Khan was duly allotted to appellant's husband Yousuf Ali Khan and thereafter confirmed against his verified claim and possession was also delivered to him. The allotment made in his favour was challenged by Ghulam Muhammad the predecessor-in-interest of respondents in earlier round of litigation. His Constitutional Petition bearing No,1347-R of the 1976 was dismissed by learned High Court vide order dated 25-11-1989.
The C.P.L.A: No,73 of 1990 filed against the said judgment was also dismissed vide order dated 16-4- 1990 and even the Review Petition filed against the said order bearing Civil Review Petition No, 31- L/1990 was dismissed on 23-6-1990. The appellants sought implementation of the afore-referred order passed by the august Supreme Court, in consequence of which the sale mutations made in favour of respondents by afore-referred Ghulam Muhammad and one Nazir Ahmad were directed to be cancelled which orders have been set aside by the High Court through the impugned judgment which is not tenable in law. He lastly contended that in the judgment under challenge the High Court has re-opened issues of allotment, which stood settled up to the Supreme Court in the earlier round of litigation.
3. Learned counsel for respondents in Civil Appeal No,1615 of 1995 Mr. Ihsanul Haq Chaudhry defended the impugned judgment and made following submissions:-
(i) That in the earlier round of litigation the appellant's predecessor-in-interest Yousaf Ali Khan never disclosed the orders passed in earlier round of litigation with Ghulam Muhammad the predecessor-in-interest of respondents in Civil Appeal No,1615 of 1999 particularly the order dated 4-3-1976 passed by Additional Commissioner (Lands) dismissing former's petition and the orders passed by the Lahore High Court dismissing his Constitutional Petition No,53-R/1977 filed against the allotments made in favour of Nazir Ahmad, the predecessorin-interest of respondents in Civil Appeal No,1616 of 1999. This gross suppression of material facts disentitles the appellants to any discretionary relief.
(ii) That the Settlement revision filed by Yousuf All Khan against the allotment made in favour of Ghulam Muhammad, the predecessor-in-interest of respondents in Civil Appeal No,1615 of 1999 was relatable to only 12 Kanals, 1 Marla of garden area confirmed in latter's favour. This revision was allowed by the Settlement Commissioner and the Writ Petition (No,1343-R/1976) filed by Ghulam Muhammad predecessor-ininterest of respondents challenging the said order was dismissed. This order passed in Constitutional Petition was affirmed by Supreme Court in Civil Petition for Leave to Appeal No,73 of 1990 on 16-4-1990. Since the controversy subject-matter of the afore-referred litigation was confined only to 12 Kanals, 1 Marla, appellantsentitlement cannot be extended beyond that.
(iii) That the respondents are bona fide purchasers being not party to the earlier round of litigation between Yousuf Ali Khan and Ghulam Muhammad or Nazir Ahmad, they cannot be bound down by the judgments passed as those were judgments in personam and not in rem.
(iv) That the land allotted to Yousuf Ali Khan fell within the urban area and could not have been allotted to him against the rural units.
(v) That in purported implementation of the judgment in Writ Petition No,1343-R/1976 and affirmed in C.P.L.A. No,73 of 1990 the Deputy Commissioner/Collector, Rahimyar Khan directed review/cancellation of mutations with regard to land, which was not allotted to Yousuf Ali Khan. He gave a break-up of the Khasra numbers of the land allotted to Yousuf Ali Khan on 30-7-1992 and the Khasra numbers of the mutation cancelled by the Deputy Commissioner/Collector which were impugned before the High Court in the current litigation to argue that the judgment of this Court is not only being misconstrued but being violated. The break-up is as under:--- Allotment in favour of Yousaf Ali Khan on 30-7-1992Order dated 31-5-1994 cancelling the mutation.
Rectangle No,Killa No,Area No, of MutationsRectangle No,Killa No,Area 432/5 8 2-0 6 432/7 432/116 100-2 1-9 13 6-0 120 12 0-6 18 4-0 133 12 0-6 13 2-0 132 12 0-1 23 2-14 137 12 0-1 18-A 3-11 71 12 0-8 23 4-0 11 1-5 432/11 I-A 0-2 -- -- -- -- 9 1-9 -- -- -- -- 9-H 0-11 -- -- -- -- 11 4-13 -- -- -- -- 10 2-5 -- -- -- -- 10 4-7 -- -- -- -- 10 0-13 - - - - - - - - 11 2-18 - - - - - - - - 19 0-6 - - - - - - - - 20 0-13 - - - - - - - - 42-5
(vi) That one heir of predecessor-in-interest of respondent i,e, grandson of Ghulam Muhammad is prepared to give an area of 12 Kanals; 1 marlas after planting fruit trees to the appellants in lieu of the land subject-matter of this appeal by way of compromise.
4. Learned counsel for respondents 47 to 59 submitted that he would adopt arguments of Mr. Ihsanul Haq Chaudhry learned counsel for some of the respondents. However, he submitted that after allotment Ghulam Muhammad predecessor in interest of the respondents sold his land to various persons who have constructed shops.
5. Ch. Muhammad Abdullah, counsel for respondent No,1 in Civil Appeal No,1616 of 1999 defended the impugned judgment by submitting that his client and other vendees from Ghulam Muhammad were never heard before cancellation of mutations and therefore, the ex parte order has rightly been set aside by the High Court through the impugned judgment. The appellantspredecessor-in- interest had lost his case with respect to 24 Kanals, 8 Marlas of land allotted in favour of Nazir etc. As his Writ Petition No,53-R of 1977 was dismissed by the High Court and Yousuf Ali Khan did not agitate the matter any further. The successorsin-interest of the said Yousuf Ali Khan cannot, therefore, lay their claim on the entire 42 Kanals, 5 Marlas of land and the judgment passed by this Court in earlier round of litigation (C.P.L.A. No,73 of. 1990) was relateable only to 12 Kanals, 1 Marla of land. He further submitted that respondent No,1 has purchased shops from the Housing Department, which had set up a Low Income Housing Scheme and had constructed a shop. The whole area, he added, is a housing colony and it would be harsh to disturb the residence.
6. We have heard learned counsel for the parties and have gone through the impugned judgment and the judgments passed in the earlier round of litigation between the parties.
7. This case has a chequered history. The brief narration of factual background would be essential for a better appreciation of the issues raised. The husband of appellant No,1 Yousuf Ali Khan was a displaced person from District Muradabad U.P. Of India. He submitted claim for the grant of Entitlement Certificate and subject to verification Garden Known as "Shamumalwala/Sanwala Mal, Kalyan Das Wala" measuring 5 Acres, 2 Kanals and 5 Marlas situated in Mouza Khanpur was allotted to him temporarily by the Garden Allotment Committee, Bahawalpur on 25-4-1957. He was delivered possession of the said garden on 12-5-1957 and the allotment was confirmed on 17-4- 1962. One Ghulam Muhammad predecessor-in-interest of respondents/writ petitioners in Writ Petition No,1536/1994 was in possession of the garden from where he was evicted pursuant to the aforesaid order filed Writ Petition No,27-R of 1958 seeking restoration of possession of the garden known as "Kalyan Das Wala Utam Chand" measuring 17 Kanals and 17 Marlas and garden "Sanwala Mal, Hasa Nand and Bhawani Das" measuring 24 Kanals and 8 Marlas and for quashment of proceedings resulting in his dispossession. During the course of arguments in the said petition he gave up the plea that he was allottee but took up the stand that he was lessee holding over and that he could only be evicted after following the procedure laid down in the relevant statutory provisions. The said petition was disposed of on 29th July, 1959 with the observation that the Rehabilitation Commissioner Bahawalpur/Chairman Garden Allotment Committee should satisfy the requirements of law and take such action as is necessary after the said petitioner has shown cause. The allotment made in favour of Yousuf Ali Khan was not interfered with. (See para. 2 of the judgment dated 25-11-1989 passed in Writ Petition No,1343-R/1976). It was after the disposal of Writ Petition No,27-R/1958 that the allotment made in favour of Yousuf Ali was confirmed vide memo.
Dated 30th of April, 1962 addressed to the Deputy Rehabilitation Commissioner, Rahimyar Khan.
Later on out of the said area an area measuring 12 Kanals, 1 Marla comprising Kalyan Das Wala garden was allotted and confirmed in favour of Ghulam Muhammad by the AC/DSC vide order dated 27-4-1972. Yousuf Ali Khan being the previous allottee/owner challenged the afore-referred order in Revision, which was allowed by the Settlement Commissioner, vide order dated 14-9-1976 and it was held as under:- "After hearing the argum ents of the learned counsel for both the parties I have come to the conclusion that the garden known as Sanwalamalwala and Kalyandaswala were treated as one garden by the competent authority and the whole garden was allotted to the petitioner Yousuf Ali Khan as one Garden. The petitioner Yousaf Ali Khan was entitled to the allotment of this garden on the basis of his claim, which was entirely for the allotment of garden. The allotment in the name of Yousuf Ali Khan was made by the competent authority, i,e, Commissioner/Chairman Garden Allotment Committee Bahawalpur. That allotment was made on 25-4-1957 and it was confirmed on 17-4-1962. Yousuf Ali Khan, petitioner had also taken possession of the garden on record on 12- 5-1957. The allotment order in favour of Yousuf Ali Khan was challenged by the respondent Ghulam Muhammad in the Lahore High Court, but the Lahore High Court also held his allotment order to be registered and proper and also directed that the respondent Ghulam Muhammad be dispossessed through legal process. In the presence of a proper order made in favour of the petitioner Yousuf Khan by the competent authority i,e, the Commissioner/Chairman Garden Allotment Committee, Bahawalpur, in the year 1957 and confirmed in the year 1962, the Assistant Conunissioner/Deputy Settlement Commissioner Khanpur was not competent to make the allotment of the same garden to the respondent Ghulam Muhammad against his entire claim for agricultural land. The order of allotment and confirmation in favour of the petitioner Yousuf Ali Khan by the competent authority still stands. The impugned order is, therefore, required to be cancelled.
The impugned order is, therefore, hereby cancelled and the revision petition of the petitioner Yousuf Ali Khan is hereby accepted."
It was the afore-referred order which was challenged by the respondents. Writ Petition No,1343- R/1976 which was dismissed against which C.P.L.A. No,73. Of 1990 was filed which met the same fate and Review Petition No,31-L/1990 was also dismissed on 23-64990.
8. The argument of learned counsel for the respondents that since earlier litigation was confined only to 12 Kanals, 1 Marla of land comprising Garden Known as Kalyan Das Wala and it was decided in appellantsfavour, therefore, the latter is entitled to that extent only is not tenable because admittedly the original memo. Of allotment made in favour of Yousuf Ali Khan although mentions the name of Shanumwala Garden only but the area specified in the same allotment order is 5 Acres, 2Kanals and 5 Marlas. The inadvertent omission of the name of garden known as Kalyan Das Wala was duly considered by the High Court while dismissing the Constitutional Petition (No,1343- R/1976) of respondents and it was held in para. 5 as under:-- The memo. In question no doubt mentioned only Shanumal Wala Garden but the area stated therein viz. 5 Acres 2, Kanals 2 Marlas quite clearly approximated the area of both the gardens. It is not denied by the learned counsel for the petitioner that the area of Shanumal Wala Garden (which is also described as Sanwalamal Wala Garden) is only 24 Kanals and 8 marlas and the area of Kalyan Das Wala garden is 17 Kanals, 17 marlas. In fact, both the gardens with the aforementioned areas noted against each were temporarily allotted to Yousuf Ali Khan and it Was so stated by the petitioner himself in the earlier W.P.
No,27/R/1958. (Refer the order dated 29-7-1959 passed in that petition). In the circumstances, it appears incontrovertible that the order of confirmation passed by the Chairman, Garden Allotment Committee communicated vide memo. Annex. B related to both the gardens and non-mention of Kalyan Das Wala Garden in the memo. Was only a clerical omission. Thus the finding of the learned Settlement Commissioner that the two gardens temporarily allotted to the petitioner on 25-4-1957 were confirmed in his favour on 17-4-1962 appears to be unexceptionable."
9. The afore-referred finding of fact by the High Court is corroborated by yet another material document on record i,e, letter No,5040 dated 6-5-1957 from Additional Rehabilitation Commissioner, Bahawalpur Division to Deputy Rehabilitation Commissioner, Rahimyar Khan which is at page '216 of the paper book and the same is to the following effect:- " 'From The Additional Rehabilitation Commissioner Bahawalpur Division, Bahawalpur.
V The Deputy Rehabilitation Commissioner Rahimyar Khan.
Memorandum: Reference correspondence resting with this Office Memorandum No,4904 dated the 25th April, 1957 on the above subject.
Please read "Shanumal Wala" Shanumal and Kaliandas (Khanpur Rahimyar Khan) instead of Shanumal Wala Garden. (Emphasis is supplied).
(Sd.)
Additional Rehabilitation Commissioner Bahawalpur Division Bahawalpur.
No, 5040 dated Bahawalpur the 6-5-1957"
10. Notwithstanding the categorical finding of the High Court (in W.P. No,1343-R/1976) referred to in pafa. 8 above which stood affirmed by the Court (In C.P.L.A. 73/1990 and C.R.P. No,31-L/1990) land the letter of Additional Commissioner Revenue dated 6-5-1957 reproduced in the preceding para. The learned High Court in the impugned judgment has held that allotment made of a part of the same garden in favour of Ghulam Muhammad and Nazir Ahmad (predecessorin-interest of respondents) was still intact. The operative part of the impugned order is as under:-- "20. Yousuf Ali Khan had claimed that Garden Allotment Committee had allotted Kalyan Das Garden and Sanawalamal Garden having combined are of 42 Kanals, 5 Marlas in his favour on 17- 4-1962. 12 Kanals, 1 Marlas of Kalyan Das was allotted in favour of Ghulam Muhammad whereas 30 Kanals, 4 marlas of land was allotted to Sher Muhammad, Nazir Ahmad etc. In the year 1960 which allotment was prior in time to allotment in favour of Yousuf Ali Khan. Yousuf Ali Khan challenged allotment in favour of Ashiq Ali, Sher Muhammad and Nazir Ahmad etc. In 1975 and his application in this regard was dismissed by the High Court, meaning thereby that allotment of land/garden including Sanwalamal Garden made in favour of Ashiq Ali, Sher Muhammad and Nazir Ahmad attained finality. Housing and Physical Planning Department of the Government of Punjab acquired this land and later set up a Low Income Housing Colony on the land. Petitioner in Writ Petition No,660/95 had obtained a shop from the Housing and Physical Planning Department and the document on record duly proved his entitlement, the District Collector without ascertaining the legal position and the situation on the ground which showed that garden no longer existed and the area had become a residential area granted request made by Tehsildar and the Additional Settlement Commissioner and permitted them to review the mutations...... "
11. Learned High Court in the judgment which is impugned in these appeals took note of the earlier order passed in Writ Petition No,1343-R/1976 referred to in the preceding paragraph but ignored the same on the ground as mentioned in para. 16 of the impugned judgment that "Yousuf Ali Khan did not bring to the notice of the High Court about dismissal of his Writ Petition No,53-R/1977 by order dated 7-12-1977. Ghulam Muhammad was not party to the, proceeding befom the High Court (in Writ Petition No,53-R/1977) or the Additional Settlement Commissioner and obviously, could not point out that provisional order of allotment dated 17-4-1962/30-4-1962 no longer was capable of being implemented in view of the earlier pronouncement of the High Court and order dated 4-3- 1976 of the Additional Settlement Commissioner, Rahimyar Khan, and allotment in favour of Yousuf Ali no longer subsisted." The afore-referred finding of the High Court, we may observe with respect, loses sight of the fact that Writ Petition No,1343-R/1976 was filed by Ghulam Muhammad and successors-in-interest of Nazir and they had themselves mentioned this fact in para. (F) of the Civil Petition for Leave to Appeal No,73 of 1990, which is at page 192 of the Paper Book and is being reproduced hereinbelow:-- "(F) Whether the learned Single Judge in Chambers has not illegally held that the allotment of Respondent No,1 with regard to the land in dispute was still intact in terms of the order dated 30-4- 1962 when, the area falling in the garden of Shanu Malwala had already been cancelled from the name of respondent No,1 and, later, allotted in favour of Nazir Ahmad and others and the orders of allotment in favour of subsequent allottees were upheld by the Additional Settlement Commissioner vide separate orders dated 4-3-1976, and, the said orders were also maintained by the learned High Court in Writ Petition No,53-R-77(BWP) decided on 7-12-1977?"
12. So this Court did consider this aspect as well. Even otherwise learned counsel for the respondents during course of arguments in Writ Petition No,1343-R/1976 had conceded before the learned Judge of the High Court that "allotment in the name of respondent was actually never cancelled(respondent was Yousuf Ali Khan). This Court while dismissing Civil Petition for Leave to Appeal No,73 of 1990 and upholding the judgment of the High Court in Writ Petition No,1343-R/1976 took note of this and repelled the contention, which is now being re-agitated. It observed as follows:- "4. The next contention of the learned counsel for the petitioner is that the allotment of the respondent vide memo. Dated 30-4-1962 was conditional as the allottee was required to get his produce index units transferred within one month of the issue of the letter which the respondent had failed to do for a long time. Therefore, the allotment stood cancelled and a part of it was rightly allotted to the petitioner.
5. The contention is devoid of force. Firstly, the production of the units within one month was between the allottee and the authorities; and secondly, the allotment of the respondent at no stage was ever cancelled for the area to be available for allotment to the petitioner. The learned Judge of the High Court observed; "Learned counsel has, however, quite frankly conceded that notwithstanding the fact that the units were transferred to the respondent was actually never cancelled." He further observed, that "since the admitted position is that the allotment made in the name of the respondent was never cancelled and even no report was, committed for its cancellation, learned Settlement Commissioner was right in holding that in the presence of a proper order made in favour of the respondent by a competent authority namely the Commissioner/Chairman Garden Allotment Committee, A.C./D.S.C. Was not competent to allot the area in dispute to the petitioner. The view taken by the officer is not open to any exception. The areawhich stood allotted to the respondent and was confirmed in his favour through on quasi- permanent-basis and not cancelled from his name by any competent authority was obviously not available for allotment to the petitioner."
13. The Review petition against the afore-referred judgment of this Court (Civil Review Petition No,31-L/1990) was dismissed on 23-6-1990 and the aforereferred view was reiterated as under:-- "3. A perusal of the order of the Settlement Commissioner shows that he had allowed the respondentsrevision petition on the ground that in the presence of the allotment of the garden in favour of the respondents by the Garden Allotment Committee/Commissioner, Bahawalpur, Assistant Commissioner/Deputy Settlement Commissioner was not competent to make allotment of a part thereof against claim of land in favour of the petitioner. The later order was patently void.
The revisional order of the Additional Commissioner/Settlement Commissioner, Bahawalpur Division was upheld by the High Court and petition for leave to appeal was dismissed by this Court.
There is no good ground to re-open the matter. The review petition is, therefore, dismissed."
14. As the -allotment made in favour of Yousuf Ali Khan had admittedly not been cancelled the subsequent allotment made in favour of the predecessor-in-interest of the respondents of the same land was void and had rightly been ignored. This is in line with the law laid down in by this Court Abdul Ghani v. Noor Muhammad and others (1984 SCM R 1192) wherein at page 1195 this Court observed as under:- "The question after the remand of the case before the learned Additional Settlement Commissioner, Sahiwal, who then heard the case, therefore, was to confirm or set aside the first order transferring the plot as a 'building siteto the appellant or the subsequent order of transfer of the same Khasra number as agricultural land in favour of the respondents. The nature of the property viz. Disputed plot, was examined by the learned Additional Settlement Commissioner who after examining the record as per his order, dated 26-4-1973 held as under:-- "The disputed land was a building site and was accordingly allotted to the petitioner (now appellant) by the Settlement Commissioner, under Displaced Persons (Compensation and Rehabilitation) Act, 1958. Under these circumstances its allotment under Land Settlement Act cannot be maintained."
"By the above finding the P.T.D issued in favour of the appellant was maintained. In this view of the matter, it is unnecessary to examine the question whether on the issuance of a P.T.D. To the appellant the land was not available to be allotted as agricultural land to the respondents as in fact the said P.T.D. Was not cancelled at any stage and the case was taken up only for the purpose of resolving the dispute arising out of two conflicting allotments operating side by side in the field."
15. The contention of Mr. Ihsanul Haq learned counsel for respondents that in purported implementation of the judgment of this Court in C.P.S.L.A. No,73/1990, Mutations made in favour of some of the respondents of land which was not subject-matter in the earlier round of litigation (and which according to him had not been allotted to Yousuf Ali Khan) were cancelled, was not raised either in Writ Petition No,1536 of 1994 or W.P.No,660/1995. The break-up of specific Khasra number, Which has now been given by him and has been reproduced in Para-3 above, was never a moot point before the High Court. The respondents had challenged the very entitlement of Yousuf Ali Khan with regard to Gardens known as "Shanumalwala/Sanwala Mal, Kalyan Das Wala" B comprising 5 Acres, 2 Kanals and 5 Marlas. The matter was decided in favour of Yousuf Ali Khan up to the Supreme Court could not have been re-opened. In any case if they wanted to raise a factual controversy that a particular piece of land was not part of land/gardens allotted to him, the matter could be agitated in the revenue hierarchy and not before the High Court in its Constitutional jurisdiction.
16. During the course of arguments learned counsel for the respondents had submitted on instructions that one of the heirs of Ghulam Muhammad the predecessor-in-interest of some of the respondents is ready to give 12 Kanals 1, Marla of urban land in Rahimyar Khan in lieu of their claim subject-matter of these appeals but the appellant No,1 who appeared herself stated that the value of the land being offered is much less than the land allotted to her husband hence not acceptable. Learned counsel for the appellant on instructions, however, submitted that while seeking implementation of the judgment of this Court in the earlier round of litigation the appellants would not disturb any Mosque or school and the same shall continue to function as such.
17. For what has been discussed above and subject to the undertaking given by appellants learned counsel on instruction as referred to in the preceding paragraph both these appeals are allowed, the impugned judgment is set aside. However, the Revenue Authorities are directed to ensure that judgment of this Court in C.P.L.A. No,73 of 1990 is implemented in letter and spirit and is not misconstrued when it comes to specific Khasra numbers of land. There shall be no order as to costs.