M. S. H. QURAISHI, J.--This appeal under the Letters Patent arises in the following circumstance.
Land measuring 23 kanals 15 marlas, bearing Khasra Nos. 1, 10, 11/1, 11/2 and 20, of square No. 23 in Chak No. 294/J. B., was allotted in favour of Hasan Muhammad (present appellant) against which Jan Muhammad (present respondent No. 1) filed a revision on the ground, inter alia, that the area verified in the name of Hasan Muhammad had been cancelled by the Central Record Room. The revision came up before Mr. I. U. Khan, Rehabilitation Commissioner (L), Punjab, who by order dated 8-6-1955, held that Hasan Muhammad .Had a better status and that Jan Muhammad was not entitled to any preference over the allottees of the village. He, therefore, rejected the revision petition with the direction that "if subsequently it is found that Hasan Muhammad is not entitled to any land, the land in dispute shall be given to Jan Muhammad. In the meanwhile, it shall remain allotted to Hasan Muhammad". He expressed that the question of the cancellation of the verified area of Hasan Muhammad had no direct bearing on the revision "especially when a conditional order can be passed". The cancellation bad in fact taken place only a week before, i. e., on 31-5- 1955, which Hasan Muhammad had challenged in another revision petition. This revision petition was dismissed on 26-3-1956 by Mr. 1. U. Khan himself and an application for review was also dismissed by him on 16-1-1957. Meanwhile, the land allotted to Hasan Muhammad was cancelled from his name and was re-confirmed in the name of Jan Muhammad on 15-8-1955.
2. Hasan Muhammad, etc., however, challenged the order of the revising authority rejecting their entitlement by filing Writ Petition No. 458 of 1957 which was allowed with the direction that the Settlement Authority should take a "fresh decision after examining lease documents and determining their status with respect to the land left by the petitioners in the district of Ferozepur".
On remand, the O. S. D., Central Record Office, however, disposed of the matter without determining the status of Hasan Muhammad, etc. And ordered that action be taken in accordance with the record which had been received from India officially. Hasan Muhammad, etc. Then filed a revision petition but as the same remained pending without a decision, they moved Writ Petition No. 445/11 of 1961, seeking a writ of mandamus, directing the Chief Settlement Commissioner, West Pakistan, and the Rehabilitation Commissioner, Lahore, to decide the revision filed by them. However, on receipt of a report from the department that the order of the Officer on Special Duty, Central Record Office, in respect of verification of a claim was final and no appeal or revision was competent against it, the writ petition was dismissed on 9-10-1961 with the observation that "The report is clear and leaves nothing more to dig into". Meanwhile, as the revision petition itself was dismissed, Hasan Muhammad, etc. Brought Writ Petition No. 1416-R of 1961 which was accepted on 27-11-1962 upon the finding that the revision petition, not having been competently decided, was in fact still pending. It was, therefore, directed that the same be disposed of according to law. By a typographical error in the judgment, the matter went back to the Officer on Special Duty, Central Record Office, who, by order dated 18-2-1963, held Hasan Muhammad, etc. To be entitled to compensation and directed that a revised farde hagiyyat be issued in their favour. Upon the error being brought to his notice, the learned Judge held the order of the Officer on Special Duty, Central Record Office, dated 18-2-1963 to be a nullity as he could not revise hi? Own decision, and directed that the revision be decided by the Settlement Com--missioner, Lahore; vide Order dated 14-3- 1963. The Settlement Commissioner, who accordingly, disposed of the revision by order dated 13-8- 1964, decided the question of entitlement in favour of Hasan Muhammad and in consequence restored his allotment of the land in dispute. Jan Muhammad and the other respondents, who had not been party to the decision in the revision, challenged the order by instituting Writ Petition No. 1628/11 of 1964 on 3-12-1964. About the same time they also moved a miscellaneous application in the High Court for recall of the judgment dated 27-11-1962 passed in Writ Petition No. 1416/11 of 1961 and for their impleadment, but the same was dismissed on 14-11-1966, whereupon Jan Muhammad, etc. Instituted L. P. A. No. 1399 of 1966. That appeal was dismissed in limine with the observation that they should have been impleaded as respondents if the petitioners in that Writ Petition No. 1416/11 of 1961 were seeking any relief against them, that the omission arose from the fact that in the revisional proceedings they had not been a party and that "the proceedings before the Rehabilitation Com--missioner being between other parties, these appellants Jan Muhammad, etc. Were, therefore, not bound by any decision given either in those revisional proceedings or in Writ Petition No. 1416/11 of 1961". Considering the observation in the said L. P. A. And relying on the principle of audi alteram partem which according to him would be attracted in the case, the learned Single Judge in the Writ Petition No. 1628-R of 1964 of Jan Muhammad, etc. Set aside the revisional order of the Settlement Commissioner dated 13-8-1964 "to the extent of the restoration of the allotment of Hasan Muhammad only", as in the opinion of the learned Judge the "question whether Hasan Muhammad is entitled to any land cannot be re-agitated, as it has been finally set at rest". He, therefore, directed that the Settlement Commissioner would hear the parties and determine their right for allotment of the disputed land afresh, vide judgment dated 18-4-1968. It is this judgment that has been impugned in the present appeal by Hasan Muhammad.
3. Mr. Munir Ahmad, Advocate, learned counsel for the appellant submitted that -
(i) as the order of Mr. I. U. Khan dated 8-6-1955 held the field, the subsequent decisions had to conform to the same ;
(ii) according to the said order of Mr. I. U. Khan, the land was to remain allotted to Hasan Muhammad and as such the re-confirmation of the land in the name of Jan Muhammad, etc. Was illegal and in any case conditional and upon the final determination of the question of entitlement in favour of Hasan Muhammad, his allotment was automatically to be restored to him ; (iii)the re-confirmation of the land having been made in favour of Jan Muhammad, etc. During the pendency of the litigation regarding Hasan Muhammad's entitlement, the same was subject to the final decision on that question ; and
(iv) in the proceeding relating to Hasan Muhammad's entitlement, Jan Muhammad, etc. Could not be a necessary party, for the matter was entirely between the claimant and the Central Record Office.
Learned counsel added that the re-confirmation in favour of Jan Muhammad, etc. Being conditional and subject to the final decision on Hasan Muhammad's entitlement, the cancellation of the land from the name of Jan Muhammad, etc. Was a natural and just consequence of the decision favouring Hasan Muhammad and no breach of the principle of natural justice was involved in the restoration of his allotment. According to him, no question of a re-hearing on the point of allotment arose in view of Mr. I. U. Khan's order and, therefore, the direction given by the learned Single Judge for a fresh decision on the point was not called for.
4. Sheikh Ghias Muhammad appearing for Jan Muhammad, etc. Respondents, however, submitted that the respondents having got the land re-confirmed in their name had become a necessary party to the adjudication of the question of the entitlement of Hasan Muhammad because they were affected by the result of that decision ; that the decision taken on the question of Uasan Muhammad's entitlement behind the back of Jan Muhammad, etc. Was not binding on them ; and that although Jan Muhammad had not appealed or filed a cross-objection in the present appeal, he could still agitate against the impugned order even in so far as it relates to the question of Hasan Muhammad's entitlement. He, therefore, urged that not only the matter of allotment has to be decided afresh by the Rehabilitation authority as directed by the impugned judgment but also the question of the very entitlement of Hasan Muhammad. He further submitted that by the order dated 9-10-1961 passed in Writ Petition No. 445/11 of 1961, the case of Hasan Muhammad had been foreclosed and that fact having been suppressed by him in the subsequent Writ Petition No. 1416/11 of 1961, the judgment in the latter petition was void and liable to be re-called.
5. In support of his contention that Jan Muhammad, etc., had been a necessary party to the determination of the question of Hasan Muhammad's entitlement and that any decision taken in their absence was not binding on them, Sh. Ghias Muhammad not only relied on the observation made in L. P. A. No. 1399 of 1966 to the effect that they were not bound by any decision given in the revisional proceeding or in Writ Petition No. 1416/11 of 1961, but also cited Amir-ud-Din v. Claims Commissioner Pakistan (1) and Abdul Ghani v. Settlement Commissioner (2). In the first cited case, Ch. Hasan Din and Amir-ud-Din had been co-allottees of a cinema but later the formula for evaluating the claim of Ch. Hasan Din had been changed and his entitlement enhanced which gave him a right to the transfer of the whole of the cinema. Amir-ud-Din had brought the appeal before the Supreme Court but a preliminary objection had been taken to its competence on the ground that he not being a party to the proceeding in which Ch. Hasan Din's claim was verified at various stages he did not have the locus standi to impugn the order of the High Court. The Supreme Court overruled the objection upon the view that as the enhanced verification of Ch. Hasan Din remained in the field, he would have a right to the transfer of the cinema and Amir-ud- Din must make an exit and as such the latter had a real interest in seeking reversal of the order of the High Court in appeal. In the second cited case, where a Letters Patent Appeal had been declared by the High Court to have abated on account of non-substitution of the legal representatives within time, the Supreme Court had repelled the contention that only the authority which had made the impugned order was a necessary party and not those who were adversely affected by the setting aside of that order. It was held that "the persons to be adversely affected are necessary parties". Learned counsel also relied on Rawalpindi Improvement Trust v.
Government of Pakistan (3), but that case has no applicability here because there the land acquired by the Government had already been transferred and the transfer not having been subject to any condition, as to a subsequent acquisition of the land, it was held that the writ petition without impleading the transferees could not proceed as they had acquired valuable property rights which would be adversely affected by the success of the petition.
6. It is to be noted that the question of Hasan Muhammad's entitlement had been going on from before the passing of Mr. 1. U. Khan's order on 8-6-1955. Jan Muhammad, etc. Bad not been a party to that proceeding. The question of entitlement of a claimant is entirely a matter between him and the Rehabilitation authorities and the question can be effectually and completely decided without impleading any other party. In Bakhshi etc. v. Chiragh etc. W. P. No. 1383-R of 1964 and A.I Muhammad v. Chiragh W. P. No. 1378/11 of 1964 which had been brought by the parties in whose favour the lands of Hasan Muhammad and his brothers Chiragh, etc. Had also been re-confirmed and who were thus affected by the revisional order passed on 13-8-1964, they had challenged that order on the ground, inter alia, that they had been a necessary party to the revisional proceeding but had not been impleaded in the proceeding or in Writ Petition No. 1416/11 of 1962. The contentions in both the cases had been repelled. In the first-mentioned writ petition of Bakhsbi, etc. The objection raised that "since they were allotted the land they were necessary party in proceedings before the High Court and subsequently before the Settlement Commissioner and any order passed in their absence was, therefore, without lawful authority so far as they are concerned", was overruled with the following reason;-
(1) PLD 1968 SC 165(2) 1971 SCMR 98
(3) PLD 1970 Lah. 760 "So far as the first two contentions are concerned, it may be noted that the petitioners, as already observed, were not parties to the proceedings when the cancellation was ordered. They were allotted the land only subsequent to the cancellation. The respondents felt aggrieved only by the cancellation and therefore challenged the same in the High Court. The petitioners obviously were not necessary or proper parties to the same proceedings. Once the cancellation of the respondents' entitlement was set aside, they had to be restored to the original position and any order which had to be passed in consequence of the cancellation bad to come to an end by operation of law. There was no obligation, therefore, on the part of the respondents to have impleaded the allottees. The allottees were, however, in the know of the proceedings. If they thought that they would be adversely affected, they should have, with a view to protecting their rights, applied for being so impleaded. They now cannot take advantage of their default."
"Once the respondents were held to be occupancy tenants; the only appropriate order to make was to restore to them the land which had been earlier taken away from them on the ground that they could not be treated as occupancy tenants. The allotment in fav6ur of the petitioner could stand only as long as the respondents were not found entitled to it. It is to be pointed out that the respondents had obtained this land in January, 1954, whereas the petitioner came into the picture only in May, 1961. It is clear to us that by no stretch of reasoning and on no principle of equity could the petitioners be permitted to retain this land, once it was found that the respondents had been wrongfully held not entitled to it."
It appears that yet another party, i. e. Rani daughter of Rukhana, in whose favour land of Chiragh (brother of Hasan Muhammad) had also been re-confirmed but the same was cancelled in consequence of the revising authority's order dated 13-8-1964, had agitated against the cancellation and had succeeded in securing an order dated 13-11-1968 passed in revision, but Chiragh had challenged the same in Writ Petition No. 310/11 of 1969. The writ petition had been accepted by a learnedSingle Judge with the observation that;- " . . The entire area was withdrawn from petitioner on the report of the Central Record Office. By which the claim of the petitioner had been rejected, but, the order stands set aside in consequence of the litigation ending up in the order of the learned Settlement Commissioner dated 13-3-1964.
Therefore, it is obvious that but for the wrong report of the Central Record Office, the area in question would not have gone out of the petitioner's hand. Since the report stands repudiated by the subsequent order it would amount to that the position would revert to a date prior to the order of cancellation of the entitlement, vie. 21-6-1955. That being so, the petitioner would be entitled to the area in dispute."
7. In the identical circumstance that obtains in the present matter before us, the ratio in the above writ petitions should fully apply. I am, therefore, not inclined to the view that the question of entitlement of Hasan Muhammad could not be decided in the absence of Jan Muhammad, etc. They after the re-confirmation of the land in their name had, no doubt, acquired an interest in the property and were as such interested in the result of any order made favouring Hasan Muhammad's entitlement. Should they have applied, they ought to have been impleaded.
However, they never made any attempt to join the proceeding, which had spread over more than nine years. It would not be correct to say that they had no knowledge of the proceeding. The fact that the area verified in the name of Hasan Muhammad had been cancelled and that the question whenever subsequently decided would govern the allotment, had already been incorporated in Mr, I. U. Khan's Order dated 8-6-1955, to which Jan Muhammad, etc. Had been a party. They are themselves to blame for not seeking their` impleadment in Hasan Muhammad's revision.
8. But even if it were, for the sake of arguments, accepted that they were a necessary party to the proceeding relating .To Hasan Muhammad's entitlement, a question arises whether they, not having appealed from the impugned judgment nor having filed a cross-objection in the present appeal, can be permitted to raise the point now and thereby extend the scope of the remand ordered by the impugned judgment. In this connection Sh. Ghias Muhammad urged that an appeal under the Letters Patent was not an appeal in strict sense and that the entire case became open for a decision, in such appeal. For this he relied on Abdul Haq. v. Saif-ur--Rehman (1) and Nazir Ahmad v. Mehr Din (2): In the first cited case it had no doubt been held that an appeal under the Letters Patent was not an appeal in strict sense but merely an intra Court arrangement designed to exercise control over its own affairs in the High Court, but the observation had been made in the context of an asserted vested right in the appellant which assertion bad been repelled and it had been held that the provi3ion of the Letters Patent could not be construed so as to confer on the litigant a substantive right of appeal. The observation made in the second cited case is of a general nature and had been made in repelling an objection to the Letters Patent Bench going to the merits of the case.
9. - Learned counsel then fell back on the provision of Order XLI, rules 22 and 33 of the Code of Civil Procedure. Under rule 22, a respondent who had not appealed from any part of the decree may not only support the decree on any of the grounds decided against him but may take objection to the decree which he could have taken by way of appeal provided he had filed such objection in the appellate Court within one month's time from the date of service of notice on him. The rule contemplates two alternatives, namely, (1) the respondent may support the decree on any of the grounds decided against him in the Court below, or (2) he may take a cross-objection to the decree, in accordance with the provision of the rule. The impugned judgment decided two .Questions. On the question of Hasan Muhammad's entitlement, it declared that the same cannot.
Be re-agitated as it had been finally set at rest. On the question of allotment of the land, it remanded the matter for a fresh determination. The order of remand is, therefore, limited to the question only of the allotment of the land. It sets a. Seal of finality to the other question, that is, of Hasan Muhammad's. Entitlement: Jan Muhammad, etc., therefore, can only support the impugned judgment in so far as it relates to the question of fresh determination of the allotment of land and they may do so even on the grounds decided against them. But what they are seeking is the setting aside of the impugned judgment on the question of Hasan Muhammad's entitlement. This is not open to them under the first alternative under- rule 22. They could do so under the second alternative under that rule had they filed a cross-objection in time. The authority in Mhand v.
Amautul Hafeez PLD 1954 Lah. 278, relied upon is of no help to them because all it says is that :- (per S. A. Rahman, J.)
(1) PLD 1968 Lah. 478 (21969 SCMR 53 "The right of the respondent to agitate a ground decided against him by the Court or Courts below, under this rule, is subject only to the qualification that the ground would be available to 'support the decree', i.e. only as a weapon of defence and not of offence, in order to maintain the status quo ante. To use a familiar expression it can be used as a shield and not as a sword so that the burden of liability on the respondent is not increased beyond what is imposed by the lower Court's decree."
Rule 22 of Order XLI, C. P. C. Is, therefore, not attracted.
10. The other rule, i. e. rule 33 of Order XLI, C. P. C. Empowers the appellate Court "to pass any decree and make any such order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised C by the Court notwithstanding that the appeal is as to .Part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection". The rule, no doubt, gives power to the Court but it does not confer any right on the party. The exercise of the power is discretionary in the Court and as such should be applied with caution and limited to cases which as a result of the appellate Court's interference with the decree in favour of the appellant, require further interference in order to adjust the rights of the parties in accordance with justice, equity and good conscience. For this reason, the rule should not be applied in favour of a party which had been guilty of negligence, more particularly in favour of a party so as to enable it to evade or affect the bar of limitation. See Shib Chandra v. Dulcken (2). In Kesho Prasad Singh .v.. Narayan Dayal (3), where a plaintiff whose claim was decreed in pact, instituted an appeal with regard to the part not decreed, .And the defendant preferred neither an appeal nor a cross-objection, it was held that the appellate Court has no jurisdiction to enter into the question whether the plaintiff is entitled or not to any decree at all and to dismiss his suit wholesale. In Rangam Lal v. Jhandu (4) and Mukund v. Shantaram (5) it had been ruled that if a party against whom a decree has been passed files no cross appeal and no cross-objections, while his opponent files an appeal, then he cannot ordinarily be allowed to dispute the decision of the Court below against him. I am, therefore, confirmed in my view that no benefit can be taken by Jan Muhammad, etc. Of rule 33 of Order XLI, C. P. C. The case is fully covered by the observation made by the Division Bench in the aforecited case All Muhammad . v.
Chiragh etc. In the circum--stance, the decision as to the finality of Hasan Muhammad's entitlement cannot be allowed to be disputed in the present appeal. The decision on that point is now of binding effect on Jan Muhammad, etc. .
11. Adverting to the respondents' contention that the decision recorded on 9-10.1961 in Writ Petition No. 445/11 of 1951 had foreclosed the question of Hasan Muhammad's entitlement and the factum of that decision having been suppressed in the subsequent Writ Petition No. 1416/11 of 1961., the judgment in the latter, having been procured by fraud, was void and liable to be re-called, I must again point out that Writ Petition No. 445/R of 1961 had been instituted only to seek a mandamus directing the Rehabilitation Authority to decide Hasan Muhammad's revision petition. The decision in that writ petition, therefore, cannot be said to have foreclosed the question of Hasan Muhammad's entitlement itself, which question had never been before the Bench. Moreover, the report submitted by the Officer on Special Duty, Central Record Office, in that Writ Petition, to say that the verification of the claim was final and no appeal or revision was competent against it, was contrary to the law. As had been observed by this Court in Nawaz Khan v. O. S. D. Central Record Office PLD 1967 Lah. 42,the Officer on Special Duty "is merely a_ reporting agency and he is not a Court or a quasi-judicial authority in any sense. The proper and final word is that of the Settlement and Rehabilitation Authorities who are to give a verdict on the lis involved". This view had been approved in Raunaq All v. Chief Settlement Commis--sioner 1973 SCMR 236,in which it had been held that the Officer on Special Duty "is not an officer specified either under the Pakistan Rehabilitation Act (XLII of 1956) or the Registration of Claims (Displaced Persons) Act, 1956 or the Rehabilitation Settlement Schemes framed under the Pakistan Rehabilitation Act, 1956". It had been further, held that the Officer on Special Duty had no jurisdiction to cancel the verification order issued by the Claims Authori--ties, that the Officer on Special Duty had no power to sit in appeal over the decisions of the Claims Authorities and that if a person felt aggrieved -from the verification or re-verification made by the Central Record Office, he could raise objections before the Rehabilitation Authorities who are really to give effect to the report of the Central Record Office and who alone had the jurisdiction to go into those objections and to assess the same in the light of a report received from the Central Record Office for the purpose of arriving at a correct conclusion. There was, therefore, no finality attached to any decision by the Officer on Special Duty and the revision brought by Hasan Muhammad against the order of cancellation passed by the Officer on Special Duty was maintainable under the law and it was that revision which was ultimately decided by the revising authority by its order dated 13-8-1964. The judgment in Writ Petition No. 445/R of 1961 cannot, therefore, be interpreted to have foreclosed the question of Hasan Muhammad's entitlement and as such the judgment in Writ Petition No. 1416/R of 1961 was not affected by any observation made in Writ Petition No. 445,/R of 1961.
(2) AIR 1918 Cal. 13
(3) AIR 1925 Pat. 285(4) I L R 34 All. 32
(5) AIR 1927 Bom. 128
12. Having thus disposed. Of the points raised by learned counsel for the respondents, I may now deal with the contention of the appellant that the question of a fresh determination of the allotment was no longer open to a decision. I am of the view that the question of entitlement of Hasan Muhammad was linked with the order of Mr. I: U. Khan dated 8-6-1955 and . Upon the determination of that question, the allotment in favour of Hasan Muhammad had automatically to be restored to him and Jan Muhammad, etc. Having been a party to that order and the land having been re-confirmed to them only conditionally. Subject to such determination, they bad no right to be further heard on the question of restoration of the allotment in favour of Hasan Muhammad. In fact the re-confirmation made in favour of Jan Muhammad, etc. Was in violation of that order which had directed that until the determination of Hasan Muhammad's entitlement, the land should remain allotted to him and only in the event of his being not entitled, the land could be allotted to Jan Muhammad, etc. Since the question of entitlement of Hasan Muhammad had remained pending litigation, he was entitled to continue with his, allotment until such time as a final decision was made. The respondents have already taken advantage of a wrong order. They cannot be allowed any further opportunity of agitating the ques--petition of allotment as that would amount to re-opening the decision of Mr. I. U. Khan itself, which is binding upon and final against the respondents.
13. In view of the above discussion, the appeal of Hasan Muhammad is accepted with costs and the impugned judgment in so far as it directs a fresh determination of the question of allotment of the disputed land by the Rehabilitation Commissioner is set aside. In the result, the order of the Rehabilitation Commissioner dated 13-8-1964 shall hold the field.