1. ' By this writ petition orders dated 18th September, 1976 and 23rd November, 1976 of the learned Custodian were challenged by Mst. Aziza Begum petitioner. It is alleged by the petitioner that the land measuring 5 kanals and 5 marlas comprising Survey No 955 situate in village Phagwati being evacuee property, was allotted to her deceased husband in the year 1952 and since then she is in possession of the same. It was then asserted that on a certain portion of this land allotted to her husband she constructed shops which were rented and out of which one of the shops was rented to Muhammad Zaman respondent, the rent of which was being regularly paid by him through the office of NaibTehsildar Hajeera. It was in pursuance of order dated 24th May, 1959 passed by the Commissioner that the rent of the shop was being deposited by Muhammad Zaman respondent in the office of Sub-Tehsil Hajeera vide Annexure 'B' depicting this order. On basis of this order, the petitioner has contended that Muhammad Zaman respondent had tried for allotment of the land in dispute but be failed to obtain the allotment of the same as desired by him, but it was before the Custodian that respondent No, 1 produced a so-called allotment chit bearing no signatures of any allotting authority that he was successful in obtaining the permission for construction of a shop over 1 marla out of 4 marlas of land indicating allotment in his favour vide Annexure in this behalf.
2. The petitioner then made a representation against the order passed by the learned Custodian which was amended and reconstruction of the shop was allowed thereof. According to the petitioner, that being so, the Custodian was not empowered to allow a person being not an allot tee to construct or reconstruct a shop over an evacuee piece of land allotted to the petitioner.
3. ' All the allegations of the petitioner were controverted by Muhammad Zaman respondent.
4. According to him, the land in dispute measuring 4 marlas out of Survey No, 955 stands validly allotted to him for which allotment he is liable to pay ground rent fixed by a competent authority.
5. ' It was refuted by the respondent that any shops were ever constructed by the petitioner over the land in dispute and that it was he who built all the shops numbering four over the land in dispute as an allottee. It was for the purpose of construction of shops that the land in dispute was allotted to him by the Rehabilitation Authorities and he then did accordingly. It was further disclosed by Muhammad Zaman respondent that Survey No, 955 measures 7 kanals and 1 marla out of which 6 kanals and 17 marlas are in possession of the petitioner who has a claim for only 5 kanals and 5 marlas allegedly allotted to her husband and thus she has nothing to do with the land in his possession over which shops were duly constructed by him and when one of the shops decayed, he got due permission of the Custodian for its reconstruction which was within his competence and who did so after careful examination of the facts of the case brought before him.
6. ' After hearing the Counsel of the parties it was felt necessary for the right decision of the case that the relevant files concerning the dispute between the parties should be summoned from the respective offices of the Custodian and the Naib-Tehsildar Hajeera and at the same time it was also felt that some trained Revenue Officer of the rank of NaibTehsildar be asked to measure the area under survey No, 955 which is in possession of Mst. Aziza Begum petitioner and further to ascertain as to whether the site of the shops in dispute is or is not included in 5 kanals and 4 marlas allegedly allotted to Mst. Aziza Begum (it is to be noted that 5 kanals and 5 marlas are to be correctly taken into consideration here). That was accordingly done. The report of the Naib- Tehsildar and the concerned files from the offices of the Custodian and NaibTehsildar were belated in their submission to this Court and so the judgment to be given was awaited long.
7. ' On perusal of the file No, 20 of 1958 pertaining to the office of Naib Tehsildar Hajeera and that of the report submitted by Naib-Tehsildar along with the data, it is revealed that Survey No, 955 measures 7 kanals and 1 rnarla out of which 5 kanals and 5 marlas were allotted to Ghulam Sarwar deceased husband of Mst. Aziza Begum petitioner and 4 marlas were allotted to Muhammad Zaman respondent for the construction of shops. The allotment of Ghulam Sarwar was terminable and so it ended with the lapse of the year 1953. After the termination of the year 1953 till then it stood in his favour, the allotment in favour of Ghulam Sarwar or his heirs was liable to be renewed if found fit for renewal but no such renewal appears to have been made even so far and so the land comprising Survey No, 955-min measuring 5 kanals and 5 marlas was allotted to different persons which allotments were cancelled in revision by the Rehabilitation Commissioner on the assumption that the land in dispute stood allotted to the petitioner whereas there was in fact no allotment at all obtained of the land under survey No, 955 either in favour of Ghulam Sarwar or his wife Mst. Aziza Begum after 1953. At present Mst. Aziza Begum is in possession of 4 kanals and 18 marlas out of Survey No, 955 and Muhammad Zaman is in possession of 4 mar/as allotted to him by a competent authority. There is no substance in the allegation of the petitioner that there is no allotment in existence in favour of respondent No 1. Furthermore, 5 marlas of land out of this very survey number is in possession of Army for which Mst. Aziza Begum petitioner had a claim and its compensation was also assessed thereof, Similarly, a road was constructed through Survey No, 955 covering an area of 1 kanal and 12 marlas for which compensation file was also prepared by the Revenue Department and the petitioner has also a claim for the compensation of that piece of land acquired for construction of the road from Survey No, 955. A certified copy of Khasra Girdawaris pertaining to the years 1963 to 1976 shows that 6 kanals and 17 marlas of land was in possession of the petitioner out of which some of the land was taken into possession by the Military authorities for their use and a part of it was also utilized for the construction of the road as stated above. For the compensation, of both these pieces of land taken out of her possession by the authorities concerned; she had a claim on strength of the alleged allotment in her favour. And so the land in dispute measuring 4 marlas in possession of Muhammad Zaman respondent No, 1 is beyond the area measuring 5 kanals and 5 marlas claimed by the petitioner. In these circumstances of the case, when Mst. Aziza Begum has laid her hands on compensation of those portions of land which were acquired from her possession from Survey. No, 955, she cannot be allowed to grab a piece of land validly allotted to Muhammad Zaman respondent which is evidently not included in the area measuring 5 kanals and 5 marlas allegedly allotted to her deceased husband. Order dated 24th May, 1959 which has been made a source of claim over the piece of land in dispute, was obviously made by an incompetent authority. The Revenue Commissioner has no jurisdiction under law to entertain a case with regard to a dispute over a piece of evacuee land between the disputants.
8. ' The allotting authority fixed the ground rent for a piece of evacuee land allotted to respondent No, I accordingly. The Commissioner was palpably wrong in directing the revenue officials that on deposit of the rent in the office of Naib-Tehsildar by Muhammad Zaman respondent No, 1, it shall be paid to the petitioner who was not an allottee of this piece of land in dispute as indicated above. Obviously this ground-rent was due to the Custodian.
9. ' Moreover, order of the Commissioner shows that he was under the impression that survey No, 955 measures only 5 kanals and 5 marlas. It was not brought to his notice that the entire Survey No, 955 measures 7 kanals and 1 mar/a out of which 6 kanals and 17 marlas were shown in the actual possession of the petitioner in the revenue record and the land in dispute is exclusively shown in the possession of Muhammad Zaman respondent therein. How could then 4 martas of land in dispute be included in the land measuring 5 kanals and 5 marals ? Thus the application of Mst.
10. Aziza Begum petitioner is absolutely baseless and frivolous. She claims to have built shops over the land in dispute but her application dated 18th December, 1958 which is marked 'CA' a photostat copy of which is placed on record of this Court, made to Naib-Tehsildar, clearly describes that all the four shops standing on the land in dispute were constructed by Muhammad Zaman himself though by a strong hand, she seems to have changed her version from time to time. At a time she claimed self-done construction of one shop only but before this Court she lays her hands on all the four shops as if they were constructed by her which is quite contrary to her stand taken in the application dated 18th December, 1958 duly signed by her. She is absolutely in a state of dilemma.
11. That being so, the allotment of the land in dispute in the name of Muhammad Zaman respondent does not appear to have been suffering from any defect on basis of which the learned Custodian permitted him to reconstruct one of his shops covering an area of 1 marla, under law.
12. ' The Custodian is a competent authority to allow construction or reconstruction of a structure over evacuee land to a person holding the same as an allottee.
13. ' In the result, this writ petition fails and as such it is hereby dismissed with costs.