UMAR ATA BANDIAL, J.--- This revision petition is filed to challenge the concurrent findings given by the learned trial Court and the learned appellate Court by their judgments dated 30-5-1991 and 20-4-1994 respectively. By these concurrent findings the suit by the petitioners and the consequent appeal were dismissed. This suit sought declaration of their (petitioners/plaintiffs) ownership of 32 Kanals 9 Marlas land situated' in Khasra Nos. 467, 469, 470, 471 and 475, Mouza Bharoke, Tehsil and District Sialkot and further prayed that the ex parte order of the Additional Settlement Commissioner dated 30-5-1975 (Exh.P4) cancelling the petitioners' allotment to the suit-land and prospectively re-allotting it to the respondent-defendant informer Bashir, was illegal, procured by fraud, violative of natural justice, void and ineffective. That the Mutation No,142 dated 12-10-1985 (Exh.D6) transferring the said property to the informer consequent upon the aforementioned order of the Additional Settlement Commissioner was also claimed to be illegal and void.
2. It is the admitted position on the record that prior to the present dispute the aforesaid land was temporarily allotted to Mst. Ramzan Bibi who is the mother of the petitioners/plaintiffs in her status as a refugee from Jammu and Kashmir. The said temporary allotment was enjoyed by the petitioners even after the demise of Mst. Ramzan Bibi in 1965. It is pointed out that the impugned order dated 30-5-1975 cancelling the temporary allotment rights of Mst. Ramzan Bibi was passed by the Additional Settlement Commissioner without issuing any notice to the petitioners as her legal heirs who were then in actual possession of the land. A good 10 years after the aforesaid order, the impugned Mutation No,142 dated 12-10-1985 was made in favour of the informer respondent in respect of the suit-land pursuant to the impugned order of the Additional Settlement Commissioner. At that time also the petitioners claimed to be in possession of the land; for that reason the learned counsel for the petitioners explained that their suit filed on 4-11-1987 seeks mere declarations rather than also claiming possession of the suit land.
3. The impugned order acknowledges the factum and entitlement of Mst. Ramzan Bibi as the allottee of the said land but consciously omits to issue notice to the occupants thereof, namely, the petitioners on the unsustainable and presumptuous ground that they are unauthorized persons occupying her land after her demise. Whilst holding that Mst. Ramzan Bibi was the undisputed allottee of the land in question, the impugned ex parte order believed the informer's version and cancelled her allotment which was being availed by the petitioners/plaintiffs. The respondents Nos.2 to 6 are the successors of the respondent No,1 informer who got the suit property under the impugned Mutation No,142 dated 12-10-1985. The respondents contested the suit leading to the framing of 11 issues reflecting the controversy between the parties.
4.Whilst dealing with issues Nos. 8, 9 and 10 that touch the merits of the dispute, the learned trial Court and thereafter also the learned appellate Court have undertaken an inquiry as to the genuineness of the allotment made in favour of Mst. Ramzan Bibi and as to the veracity of the petitioners' claim as her legal heirs. However, a perusal of the discussion undertaken by both the learned Courts below reveals that it is not in aid of anyone of said issues. The dispute reflected in issues Nos.8, 9 and 10 is as follows:--
8. Whether the order dated 30-5-1975 passed by the Additional Settlement Commissioner, Sialkot, is illegal, void and based on fraud? OPP
9. Whether the Mutation No,142 dated 12-10-1985 is illegal and ineffective upon the rights of the plaintiffs? OPP
10. Whether the plaintiffs are entitled to the decree for declaration? OPP
5. It is evident that the material proposition highlighted in the aforesaid issues is with regard to the impugned order dated 30-5-1975 of the Additional Settlement Commissioner whereby the allotment of Mst. Ramzan Bibi, although acknowledged, was nevertheless cancelled without notice and a re-allotment made. It is noted with reference to the issues that the invalidity of Mst. Ramzan Bibi's allotment is a question outside the arena of the dispute defined by the learned trial Court itself in the case. The learned Courts below failed to examine the inconsistency within the order dated -30-5-1975 impugned before them which having acknowledged the allotment in favour of Mst. Ramzan Bibi proceeded to cancel the same on a mere presumption without notice or giving hearing that was otherwise mandatory under the applicable law, namely, the Displaced Persons (Land Settlement) Act, 1958 ("Act").
6. Notwithstanding the aforesaid misreading of the merits of the dispute, learned counsel for the respondents objected the jurisdiction of the civil Court to entertain and adjudicate the suit. This objection washowever, not taken before the learned trial Court. More importantly, theAct was repealed by the Evacuee Property, and Displaced Persons Laws (Repeal) Act, 1975. Under the repealing Act a remedy was provided only for pending cases, whereas in the year 1987 when the petitioners/plaintiffs filed their suit there was no pending case in respect of which the statutory remedy before the special forum could be availed. Therefore resort to the civil Court by the petitioners was justified.
7. The other objection by the learned counsel for the respondents is to the effect that temporary allotment to Jammu and Kashmir refugees is not a heritable right. Reliance has been placed by him on the judgments in the cases of Nazir Ahmad Rana v. Muhammad Asghar and others NLR'
1980 UC 12 and Punjab Province v. Azmatullah NLR 1980 UC 128. On the other hand, learned counsel for the petitioners has referred to a string of judgments namely, Mst. Sakina Bibi and another v.
Mamla and 2 others PLD 1977 Lah. 222; Muhammad Din and 6 others v. Allah Lok and 3 others 1989 SCMR 323 and Wajid Ali v.. Walayat Shah and 4 others PLD 1994 Lah. 179 to assert that temporary allotment to J & K refugees is tantamount to a sale to the Ministry of Kashmir Affairs. Resultantly, land falling under temporary allotment goes outside the pool administered by the Settlement Authorities. Therefore, it is argued firstly, that the Additional Settlement Commissioner had no jurisdiction in the year 1975 to pass any order in respect of the land temporarily allotted to Mst.
Ramzan Bibi and secondly, that the said land being outside the pool, the heritability of the allotment is not a relevant question. Arguments raised by the learned counsel for the petitioners are forceful and deserved consideration but for the ex parte proceedings by the Additional Settlement Commissioner conducted contrary to section 10 of the Displaced Persons (Land Settlement) Act, 1958, which specifically required hearing and notice to the affected parties. The impugned order by the Additional Settlement Commissioner declined to issue notice upon presumptuous yet irrelevant conclusion that unauthorized persons were-occupying the suit-land.
The failure to observe the rules of natural justice by an adjudicatory forum is a serious error that vitiates the 1 proceedings. Reliance is placed by the learned counsel for the petitioners E on Dr. Muhammad Azam Khan v. Director General, Excise and Taxation Lahore and 2 others 2002 CLC 1697 and Mansab Ali V. Amir and 3 others PLD 1971 SC 124. Notwithstanding the aforequoted law, the consequence and effect of lack of notice or hearing in the case was not touched by the learned lower Courts while discussing issues Nos. 8, 9 and 10. For this reasons alone the impugned judgments are in error.
8. The learned Courts below have not considered the controversy from the specific angles in which it was raised before them by the parties. By confining their attention to the genuineness or otherwise of Mst. Ramzan Bibi's entitlement to temporary allotment of the suit-land, the learned Courts below lost sight of the issues and the central point about the validity of the order impugned before them. Likewise the other issues Nos.1, 2 and 3 regarding maintainability and limitation did not receive proper attention. The impugned judgments of the learned lower Courts suffer therefore from misdirection and a misreading of the record.
9. The upshot of the foregoing discussion is that this civil revision is allowed and the impugned judgments of the learned Courts below are set aside. The matter is remanded to the learned trial Court for de novo trial. No order as to costs.