' TASSADDUQ HUSSAIN JILLANI, J.--- This appeal by leave of the Court is directed against the judgment, dated 12-5-1999 passed by a learned Judge of the Lahore High Court vide which Civil Revision No,256-D of 1986 was allowed, the judgment and decree of the learned Appellate Court i,e, Additional District Judge, Rawalpindi dated 15-9-1985 was set aside and appellant's suit was dismissed.
2. Facts in brief are that Noor Muhammad predecessor-in-interest of the appellants filed a declaratory suit qua the suit-land (measuring 3 Kanals, 19 Marlas) seeking a declaration that he being a displaced person from the State of Jammu and Kashmir was allotted the suit-land by the competent Rehabilitation Authority; that the allotment of the said land in favor of respondent with prior notice to the petitioner was void. His case precisely was that being refugee from Jammu and Kashmir, he was allotted the evacuee suit-land in lieu of maintenance on 24-9-1960 by the Rehabilitation Authority; that behind his back the said allotment was cancelled and allotted to one Col. (R) Mirza Hassan Khan, respondent No,3/defendant No,2 in lieu of his verified claim vide RL-II dated 16-1-1961. However, he came to know of this allotment on 12-8-1978, whereafter, he filed the suit. The suit was contested and in terms of divergent pleas, the trial Court framed the following issues:-- "(1) Whether the plaintiff is temporary allottee in possession of the suit-land and its further transfer is ineffective? OPP
(2) Whether the suit is barred by time? OPD
(3) Whether the suit is not maintainable in its present form? OPD
(4) Whether the Civil Court lacks jurisdiction to try the suit? OPD
(5) Whether the suit has been wrongly valued for the purposes of court-fee. If so, what is the correct valuation? OPD
(6) Relief."
3. The learned trial Court dismissed the suit as time-barred but decided Issue No,1 in favor of the petitioner-plaintiff/appellant and held as under:-- "The plaintiff has produced allotment Chit, Exh.P.9 to show, Jammu and Kashmir refugee and of temporary allotted of the suit-land. It is alleged that the allotment dated 16-1-1961 is subsequent to that of the plaintiff's temporary allotment. To my mind, on the force of rule 4A(9), (ibid) and case- law, the suit-land was no more available, to be transferred to defendant No,2. The above referred case-law suggests that a land allotted to the Jammu and Kashmir refugee, temporarily, cannot be re-allotted to the other than the temporary allotted."
4. The learned Additional District Judge, however, set aside the findings of the trial Court on question of limitation and while affirming the trial Court's finding on Issue No,1 decreed the suit. On question of limitation, the Court came to the conclusion that the very order of allotment in favor of respondent-defendant was void and the entire structure built on the said order cannot stand the test of judicial scrutiny and the limitation does not run against a void order. Dilating on this issue, the Court held as follows:- 'This RL-II shows that the appellant was never summoned. However appeared. His allotment remained intact. His possession remained intact. The intention of the respondent is clearer from the Mutation Exh.P.7 which shows that this RL-II was kept behind the door and it was brought to the knowledge of the Revenue Officer on 25-2-1976 for the purpose of the Mutation. RL-II was not implemented in the Revenue Record for a period of about 15 years. The appellant was not a party to the transfer in favor of respondent No,2. He was not heard. His possession was not disturbed. It is also settled law that the land temporary allotted to Jammu and Kashmir refugee cannot be cancelled. The cancellation of allotment of such land behind the back of allotted and without a notice to them is not permitted under the law. The reliance has been placed upon PLD 1979 SC 985.... In this view of the matter a void order will have no value whatsoever and is simply to be ignored and consequently no question of limitation will arise against such an order. It has been held by me that this property was not available for transfer under the Settlement Scheme. It had gone out of the compensation pool. The Settlement Authorities had no jurisdiction to transfer this property to any other person."
5. The learned Lahore High Court while affirming the finding of the Appellate Court on question of limitation dismissed the suit on issue No,1 on the ground as follows:-- "I am afraid that both the Courts below have failed to consider Exh.P.4 which is the RL-II in favor of the petitioner-defendant (Col. Mirza Hassan Khan) and as per this document, the land in question was already proposed for the allotment in favor of the petitioner on 11-4-1960. This would show that the allotment proposal in favor of the petitioner was prior than the temporary allotment in favor of the respondent. This document has been placed by the respondent himself on the record and thus, is bound by its contents. Even today, it has not been disputed by the side that the land was proposed for allotment in favor of the petitioner on 11-4-1960. "
6. While assailing the impugned judgment, of the Lahore High Court, appellants' learned counsel Mr. Gul Zarin Kyani submitted that after temporary allotment made in favor of Noor Muhammad (deceased) appellant on 24-9-1960, the land went out of the compensation pool. It was not available for allotment and by virtue of a scheme prepared under West Pakistan Rehabilitation Act, 1956 the land allotted to a Jammu and Kashmir refugee for the purposes of maintenance had become property of the Ministry of Kashmir Affairs, Government of Pakistan. The same was not available for allotment and the Settlement Department had no jurisdiction to allot the same to the respondent. With regard to proposal for allotment made in favor of respondent No,2/Defendant No,3, dated 11-4-1960, the learned counsel contended that mere proposal does not create right unless the same is confirmed. Admitted, the confirmation was made in favor of the said respondent on 16-1-1961, whereas the land stood allotted to the appellant on temporary allotment basis vide order dated 24-9-1960, whereafter it went out of the compensation pool and could not have been confirmed in respondent's name. He added that ever since the allotment, the appellants are in continuous possession of the suit-land; that in total petitioner-plaintiff (Noor Muhammad) was allotted 35 Kanals, out of which proprietary rights with regard to 32 Kanals of land have already been conferred on him and the remaining suit-land became subject of the instant litigation on account of the impugned allotment. In support of the submissions made, the learned counsel relied on the following precedent case-law:--
(i) Mst. Sakina Bibi and another v. Mamla and 2 others PLD(?) 1977 Lahore 202;
(ii) Dost Muhammad and others v. Mst. Badal Jan and others 1976 SCMR 112;
(iii) Jan Muhammad and others v. Sher Muhammad and another PLD 1979 SC 985;
(iv) Manzoor Hussain and 6 others v. Zulfiqar Ali and 8 others 1983 SCMR 137;
(v) Muhammad Din and 3 others v. Allah Lok and 3 others 1989 SCMR 323
(vi) Ghulam Muhammad v Ahmad Khan 1991 PSC 586;
(vii) Muhammad Azim and others. v. Ali Mohtashim and others 1994 SCMR 555.
7. The learned counsel for the respondent No,1 defended the impugned judgment by submitting that a temporary allottee had no vested right; that the suit-land was initially proposed in the name of Col. (R) Mirza Hassan .Khan which was duly confirmed on 16-1-1961 and the said allottee sold the same to respondents Nos.4 and 5/defendants Nos.3 and 4 on 13-1-1981, whereafter, the land had been under his self-cultivation. The proposal made in the name of Col. (R) Mirza Hassan Khan respondent No,3/defendant No,2 created the initial right which ultimately led to the final conferment of proprietary rights and no exception could be taken to the allotment so made.
8. We have heard the learned Advocate Supreme Court for the parties and have gone through the evidence on record.
9. Admittedly, the suit-land stood allotted in petitioner-plaintiff/ deceased appellant (Noor Muhammad's) name vide order, dated 24-9-1960. The suit-land was for the first time proposed for allotment in the name of respondent-defendant Col. Mirza Hassan Khan on 11-4-1960 but the final allotment/confirmation was made on 16-1-1961. This confirmation of proprietary rights is obviously of a date later than the temporary allotment made in appellant's favor on 24-9-1960. The learned trial Court as also the learned High Court upheld the allotment made in respondent-defendant's favor primarily on the ground that the initial proposal for allotment in his favor (on 11-4-1960) was of a prior date than the temporary allotment made in petitioner-plaintiff's name (24-9-1960). Both the Courts fell in error in holding that after the afore-referred proposal the land was not available for temporary allotment to the petitioner. We may observe with respect that while giving this finding the law laid down by this Court in Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252 and Province of Punjab and others v.
Muhammad Mahmud Shah and others 1992 PSC 876 had escaped the notice of the learned Courts.
In the former judgment which has been reiterated in the latter this Court observed as under:-- "It is necessary, in my view, to keep in mind that there is a distinction between the right to claim a transfer and the right to the transference of the property itself. The provisions of the Schedule indicated the persons or the category of persons who can claim the transfer of a particular property but the right to the transfer of the property accrues or becomes vested only after a final order for such transfer has been made in accordance with the provisions of the Act itself, the Schemes, the rules framed under the Act and the instructions from time to time issued. Until final order of transfer has been made it cannot be said that the property has been disposed of and is no longer available for transfer. It is only when a property is no longer available for transfer that an order of the Central Government laying down a different mode of disposal will not affect it, on the principle that a change in the mode of transfer cannot reopen a past and closed transaction."
(Emphasis is supplied).
' We have gone through the judgment cited by the learned counsel for the respondent Wali Muhammad v. Settlement Commissioner, Sargodha Division Sargodha and another 1984 SCMR 1574 at page 1578 wherein this Court held that, "we are inclined to agree with the view taken in the above judgment that the proposals made in favor of the claimants under para.64 of the Scheme should not be overridden in the manner sought to be done by the office of the Chief Settlement Commissioner, in the said case". The said case is distinguishable both on fact and law. It was in fact in the said case that the Court had approved the law laid down by Lahore High Court in Inayat Bibi and others v. Assistant Settlement Commissioner and Chief Settlement Commissioner PLD 1978 Lah.
252.
10. In Lahore case PLD 1978 Lah. 252 proposals for allotment of land was made in favor of the petitioners before the High Court against their verified claims of agricultural land in terms of para.64 of the Rehabilitation Settlement Scheme Part-II. However, before the proposal could be confirmed, the office of the Chief Settlement and Rehabilitation Commissioner, Punjab issued a memorandum on 25-6-1973 addressed to all the Settlement Authorities in the Province directing that the allotment of rural evacuee agricultural land against verified claims/entitlement certificates be stopped with immediate effect and all concerned officers were asked not to make further allotment of rural evacuee agricultural land against any claim/entitlement certificate. It was further directed that the proposals already made and not yet confirmed were to stand cancelled. This memorandum was challenged before the High Court and the Court held at page.
257 as under:-- "A direction given in violation of the provisions of the Act must be considered as illegal and of no binding force. Thus, if the memorandum is otherwise invalid it cannot become valid just because the Federal Government has made him to issue it."
' The High Court was perfectly justified in upholding the proposal made firstly because memorandum which sought to annul the "proposals" already made could not have retrospective; secondly there was no rival claimant; thirdly the land was still available and fourthly and most importantly the memorandum was violative of statute and the scheme framed there under.
11. In Wali Muhammad v. Settlement Commissioner, Sargodha Division Sargodha and another 1984 SCMR 1574 although both the claimants were banking on "proposals' made in favor of each one of them, the Court came in rescue of the claimant in whose favor the proposal was prior in time and observed that, "it is thus, manifest that in the presence of a proposal in favor of the one party, the same area cannot be proposed in favor of another, unless the earlier proposal is withdrawn for same reason and a fresh proposal is made in favor of the other party". In this judgment, there was no allotment order in favor of a Jammu and Kashmir allottee and the effect of para.4-A of the Rehabilitation Settlement Scheme, referred to above, was not a moot point. In the instant case, no notice was given to the petitioner who was admittedly allottee in possession when land was allotted to respondent Col. Mirza Hassan. The petitioner's case thus, stands on a better factual and legal plain than the ones which were subject-matter of the two cases discussed above because firstly there is nothing on record to indicate that after initial proposal on 11-4-1960 respondent Col. Mirza Hassan Khan was put into possession of the suit-land. Even in the written statement submitted by defendants Nos.2 to 4 of the Province of Punjab it was never pleaded that possession was handed over to the said defendant on the day initial proposal was made or even after the allotment i,e, on 16-1-1961. Secondly the Rehabilitation Settlement Scheme framed under section 6 of the Pakistan Rehabilitation Act, 195.6 was already in vogue when the allotment of land was confirmed in favor of respondent-defendant Col. Mirza Hassan Khan. Para.4-A clause (ix) of the said scheme specifically excluded the land for allotment under any rehabilitation scheme which stands, "allotted on temporary basis to Jammu and Kashmir refugees". The legislative intent was further clarified by Para.44-A of the said scheme. Thus, in the case in hand, the competent authority while making the impugned allotment failed to realize that the suit-land was no longer available for allotment as it stood excluded from the compensation pool after its temporary allotment in petitioner/appellant's name. A reference to paras.4-A(ix) and 44-A of the Rehabilitation Settlement Scheme framed under section 6(1) of the Pakistan Rehabilitation Act, 1956 at this stage would be pertinent. The afore-mentioned paras. Read as under:-- "4-A. The following categories of land will not be allotted under the Rehabilitation Settlement Scheme and will remain excluded from the Scheme:--
(i) urban land;
(ii) and mortgaged with possession by evacuees in favor of Muslim mortgagees except where a claimant is prepared to secure an allotment of such land in its encumbered state without demanding any additional compensation on account of such an encumbrance;
(iii) land attached to evacuee charitable, religious and educational trusts;
(iv) land reserved for expansion of village Abadis and other public purposes;
(v) deleted;
(vi) deleted;
(vii) deleted;
(viii) evacuee land under Muslim Occupancy tenants, and
(ix) land allotted on temporary basis to Jammu and Kashmir refugees." (Emphasis is supplied).
44-A. Allotment to Jammu and Kashmir refugees.--- After meeting the claims pending on 12th February, 1957 for settlement under the Rehabilitation Settlement Scheme, all categories of rural evacuee agricultural land available in six border districts of Sialkot, Gujranwala, Gujrat, Jhelum, Rawalpindi and Attock should be reserved and utilized for temporary allotment to those Jammu and Kashmir refugees who can cultivate the land themselves. The transfer of claims under any circumstances to these districts should not be permitted. The evacuee land thus, allotted to Jammu and Kashmir refugees will be excluded from the Rehabilitation Settlement Scheme."
' This Court considered the effect of this scheme in 1989 SCMR 323; 1976 SCMR 112 and in PLD 1991 SC
391. In 1991 PSC at page 590 while accepting the appeal, the Court observed in para.9 as under:-- "This Court in Muhammad Din and others v. Allah Lok and others 1989 SCMR 323 has also held that the land temporarily transferred to Jammu and Kashmir refugees for purpose of their maintenance cannot be cancelled by the Chief Settlement Commissioner because it had, in fact, became the property of the Ministry of Kashmir Affairs in 1960 and was excluded from the compensation pool.
Hence neither the Chief Settlement Commissioner nor his delegate had any jurisdiction to cancel the same and allot it to the informant."
12. For what has been discussed above, this appeal is allowed. The impugned judgment and decree dated 12-5-1999 of the High Court are set aside and appellants' suit is decreed with no order as to costs.