KARAM ELAHEE CHAUHAN, J.--The dispute in this case is about 98 kanals and 12 marlas of land situated in Chak No. 122/J. B., Tehsil and District Lyalipur (now Faisalabad). It is not necessary to go into the lengthy details through which the litigation between the parties and the stages through which the present case passed, and it will be sufficient for the purpose of the present order to state that the land in dispute as a result of proceedings under sections 10 and 1 I of the Displaced Persons (Land Settle--ment) Act XLIV of 1958 was cancelled from the name of Mst. Rifat Sultan (respondent No. 2 herein) (a claimant displaced person) on the ground that in fact she herself had not procured its allotment which was allegedly attributed to her as having been obtained on 15-7- 1972 and confirmed on 20-7-1972. This order was passed by the learned Additional Settlement Commissioner (Land) on 24-6-1974 on the mukhbari application of respon--dents 3 to 5 (hereinafter called the informants). The learned Additional Settlement Commissioner further directed that the aforesaid land should as a reward of their mukhbari be allotted and confirmed to those informants, according to their entitlement and that its possession should be delivered to them. In this respect he directed that Assistant Settlement Commissioner/ Deputy Settlement Commissioner to take immediate steps for compliance and implementation of his order.
2. The petitioners who claimed to be subsequent purchasers from the allottee Mst. Rifat Sultan (respondent No. 2) through a sale dated 24-7-1972 filed a writ petition, being Writ Petition No. 1198-R of 1974, challenging the aforesaid order of the learned Additional Settlement Commissioner and pleaded that their vendor Mst. Rifat Sultan had duly procured the allotment of this land through her attorney and the finding to the contrary as recorded by the learned Additional Settlement Commissioner was not correct. They further pleaded that they were bona fide purchasers of that land from Mst. Rifat Sultan and as such the land should have been allotted and allowed to remain with them instead of directing its transfer to the informants. This writ petition so far as it pertained to the sale of land to the petitioners dated 24-7-1972 was dismissed by a learned Single Judge of the Lahore High Court on 20-3-1975, though so far as it pertained to settlement of land on the informants that part of the order of the learned Additional Settlement Commissioner was set aside and the case on that aspect of the matter as also for scrutiny of total holdings and entitlement of Mst. Rifat Sultan was remanded.
3. The petitioners filed a review application being R. A. 37/1975 which also met the same fate and rejected by the same learned Single Judge on 9-4-1975.
4. The petitioners have come up in a Civil Petition for Special Leave to Appeal No. 644/1975 against the aforesaid order to this Court.
5. Learned counsel for the petitioners has drawn our attention to paragraph , l1 of the impugned order dated 20-3-1975 which reads as follows :- "The result is that this writ petition succeeds to the extent that the allot--ment of the era in question in favour of the Informants respondents Nos. 3 to 5) is set aside and the case remitted to the Chief Settlement Commissioner for determination of their entitlement under the provi--sions of subsection (2) of section 2 of Act XXXVI of 1974. The learned Chief Settlement Commissioner may also, at the same time, issue notice to Mst. Rifat Sultan, to satisfy him whether she is not holding allotments in excess of her true entitlement, under Martial Law Regulation No. 94. However, so far as the challenge is concerned to the order setting aside the allotment of 98 kanalr 12 marlas made in favour of Mst. Rifat Sultan on 15-7-1972 and its subsequent sale in favour of petitioners No. 1 to 3 and respondent No. 6, it fails. As the success is divided, the parties shall bear their own costs."
6. Learned counsel then referred to paragraph 5 in the order of the High Court dated 9-4-1975 passed in the review application of the petitioners. It reads as follows :- "The arguments at first sight appears attractive, but cannot, however, be accepted. In her written statement Mst. Rifat Sultan has herself taken the stand that the allotment dated 15-7-1972 was secured by Muhammad Sharif (petitioner No. 4) in her name by fraudulent means, when she was not entitled to it. It has, moreover; been held finally in the impugned judgment that Mst. Rifat Sultan, respondent No. 2, was not entitled to the said allotment (made on 15-7-1972). In case the said finding is erroneous, the same can only be corrected by a Court of Appeal, hence it is not possible for me to permit this matter to be re-opened before the learned Chief Settlement Commissioner.
However, the Chief Settlement Commissioner may permit the peti--tioners to address him also if he decides to go into the question of the entitlement of Mst. Rifat Sultan with respect to the allotment secured by her before the allotment made to her on 15-7-1972 which in the main, was the subject-matter of dispute in the writ petition. This review petition stands disposed of with the above clarification."
7. Learned counsel pointed out that as certain proceedings of similar nature viz. Under sections 10 and I1 of Act XLVII of 1958 were also pending against Mst. Rifat Sultan before Settlement Commissioner, !Hang, therefore the petitioners, in order to get her entitlement thrashed out in their presence applied for being impleaded as a party in those proceedings. However, their application was rejected by the learned Settlement Commissioner, Jhang, on 3-6-1976, in the aforesaid judgments and orders of the High Court dated 20-3-1975 and 9-11-1975 passed in Writ Petition No. 1198-R of 1974 and the subsequent Review Application No. R. A. 37/1975) respectively, relevant paras whereof have been reproduced above and whereby the title of the petitioners under the sale dated 24-7-1972 from Mst. Rifat Sultan was not accepted.
8. The petitioners challenged the above-mentioned order of the learned Settlement Commissioner, Jhang, dated 3-6-1976 by means of Writ Petition No. 853-R of 1976 but without any success because it was also dismissed by the High Court on 10-2-1977.
9. The petitioners have filed Civil Petition for Special Leave to Appeal No. 257 of 1977 against the last mentioned order of the High Court, whereby their non-impleadment as a party in "Jhang Proceedings" was maintained. In this petition the sole aim of the petitioners, as their learned counsel told us was to press their right to purchase the land in dispute under the Evacuee Property and Displace Persons Laws (Repeal) Act XIV of 1975.
10. This judgment and order will cover both the Petitions namely Civil Petition for Special Leave to Appeal No. 257 of 1977 and Civil Petition for Special Leave to Appeal No. 644 of 1975.
11. Taking up Civil Petition for Special Leave to Appeal No. 257 of 1977, learned counsel has pointed out that as a matter of fact his one more Writ Petition No. 471-R of 1977 is still pending in the High Court in which his clients have prayed for acceptance of their claim for purchasing the land in dispute in their independent right in view of the overall facts and circum stances of this case under Act XIV of 1975. He submits that the same is the burden of his C. P. S. L. A. No. 257 of 1977 in this case.
If that is s then, as that question is according to his showing sub judice before the High Court, therefore, it our opinion Civil Petition for Special Leave to Appeal No. 257 of 1977, claiming the same relief in the garb of trying to take exception to the non-impleadment of the petitioners in the proceeding before the learned Settlement Commissioner, Jhang, is nothing but just duplication of the same matter in a different form. The petitioners can assert their point of view on the subject before the High Court and it is only after the matter is decided by that Court, that an occasion to approach this Court on that subject if at all necessary would arise. In some lukewarm form, learned counsel tried to advance certain arguments with regard to the scope and interpretation of certain provisions of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 but soon realising that any opinion by this Court on the subject might prejudice his case in the High Court or elsewhere he showed no seriousness to press the same at this stage before us, submitting that he would rather first take the chance in the High Court on that subject. In these circumstances we find no merit in Civil Petition for Special Leave to Appeal No. 257/ 1977 and dismiss the same as premature and misconceived.
12. Taking up the Civil Petition for Special Leave to Appeal No. 644 of 1975 the matter apparently appears to be one of fact viz. Mst. Rifat Sultan had neither sought, nor applied for and nor in fact obtained any allotment of the land in dispute in Chak No. 122/J. B. (Tehsil and District 8 Lyallpur). If that is so then it is obvious that the alleged sale by Mst. Rifat Sultan clothed the petitioners with no right to claim that land., However, learned counsel in this respect drew our attention to the order of the learned Chief Settlement Commissioner dated 24-6-1974 who had cancelled the allotment of the land in Chak No. 122/J. B. To Mst. Rifat Sultan inter alia on the ground that she was not a temporary allottee of any land in that Chak. This ground was held by the High Court to be untenable, after recording that finding, instead of remanding the case to the learned Settle--ment Commissioner for decision afresh the High Court proceeded to attend to the matter itself with reference to the various documents placed before it. The High Court was then mainly influenced by the fact that as total entitlement of Mst. Rifat Sultan, stood already satisfied before allotment of this land to her, in this Chak, therefore, the present allotment from that point of view was also illegal.
Learned counsel submits that Mst. Rifat Sultan bad agreed to sell this land to another party (other than the present petitioners), who had filed a suit for its specific performance against her. When attention of the High Court was drawn to that aspect of the matter to point out that her plea that she had not got this allotted in her name was false, the High Court observed that, "But it was brought to my notice that this lady had, besides granting the Power of Attorney to Muhammad Sharif, petitioner No. 4, also granted a Power of Attorney in favour of one Khalid Latif and made an agreement to sell the land in dispute in his favour and that the said Khalid Latif has already sued her, before a civil Court at Lyallpur, for failure to perform the said contract In fact, in this connection the counsel for the petitioners criticised the observa--tion made by the learned Settlement Commissioner, in his impugned order to the effect that the subsequent alienations made by Mst.
Rifat Sultan shall be null and void and ineffective in law, on the ground that this observation will prejudice the said civil suit and any other action brought by the petitioners against her. I may point out that this impression is not correct, because the aforesaid observation pertains to the alienations made in favour of petitioners Nos. 1 to 3 and not to other alienations that might have been made by Mst. Rifat Sultan, as any observations made in a judicial order only binds the parties to the proceedings therein and not third parties. Nor will the said observation prejudice the case of the petitioners Nos. 1 to 3 for damages etc. In a civil Court, as the order of the learned Settlement Commissioner cannot apply to this aspect of the matter." It was submitted that the aforesaid observations of the learned Single Judge in a way left the question of validity of allotment of land in Chak No. 122/J. B. Open viz-a-viz another or others, but viz-a-viz the petitioners closed it with a positive finding that the neither had nor could claim allotment in this Chak at the relevant time. It was submitted that similarly the question that her earlier allotments were a bar to have land allotted in Chak No. 122/J. B., should have been examined analytically as to which allotment was made who, and whether in its own turn legally, and which would have preference over which. It is further submitted that there were overlapping observations regarding the petition of the petitioners. It is argued that the course adopted by the High Court in taking upon itself the onerous task of resolving highly controversial issues was not justified and the proper course after noticing that the order of the Chief Settlement Commissioner was vitiated due to misreading of record was to send the case back to him for fresh disposal in accordance with law after laying down, if it was for necessary as to enlist points should be attended to and how. In our view the question raised is of fundamental importance requiring examination by this Court as to whether the course adopted b the High Court in the resolution of such controversial matters by admit tin new documents on record, and opening highly controversial issues with we touched and which arose from the order of the learned Settlement Commissioner, and by leaving certain points open e.g. Conduct of Mst. Rifat Sultan, and the extent of her entitlement and holding and directing their adjudication by simply keeping the petitioners out from sharing in such proceeding was neither warranted by law nor justified on the facts and in the circumstances of this case. If such questions were to be left open, it is argued, the they should have been left open for the petitioners as well, and there was n justification to keep the petitioners out especially when their adjudication could have, if decided in a favourable manner, proved the case of the petitioners.
13. Leave to appeal is granted. Security Rs. 1,000.