CH. MUHAMMAD TARIQ, J. ~ This single judgment shall dispose of I.C.A. No. 255/2006 and I.C.A. No. 256/2006, as common question of law, and facts are involved therein.
2. The. Instant I.C.A, has been directed against the judgment dated 25.4.2006 passed by the learned Single Bench in writ petition No. 269-R of 1992.
3. Brief facts of the case as narrated in this writ petition are that Dewan Bukhsh and Fazal Hussain migrated to Pakistan and submitted their claims being refugees from Jummu and Kashmir State.
The claims were verified by the Central Record Room. Land measuring 118-Kanals and 19- Marlas confirmed at Khata No. 192 of RL-II of Wazirabad was verified on 14.4.1964. The land was sold through Mutation No. 3396 to Walayat Hussain, which is reflected in Jamabandi for. The year 1963-
64. This land was subsequently sold through registered sale-deed and Mutation No. 3562 was attested in favour of Muhammad Bashir on 30.6.1966. Muhammad Bashir then sold it through sale- deed dated 21.1.1967 to petitioner No. 1 Petitioner No. 1 gifted the above-said land to his wife, petitioner No. 2 vide Mutation No. 4906, dated 24.7.1976 the Inspection Team of Board of Revenue detected excess allotment by the original claimant, which resulted into initiation of proceedings before Sardar Hadayat Ullah Mokal, the then Settlement Commissioner in case No. 223/GW, titled as 'State v. Ghulam Fatima'. No 'Mukhbari1 application was filed by any person during these proceedings. Settlement Commissioner ordered the cancellation of the land equal to 297 PlUs but of the area confirmed at Khata No. 192 of RL-JI of Wazirabad on 26.2.1973 leaving an area equal to 229 Plus intact. The order was passed in the absence of the petitioners, who remained in possession and their possession on the disputed land remained uninterrupted. An application was filed by respondents Nos. 3 to 16 before Additional Deputy Commissioner (General), Gujranwala for allotment of the land on the basis of 'Mukhbari' application where ^the petitioners were made a party, wherefrom they came to know about the order of cancellation dated 26.2.1973. Report was submitted on 9.5.1992. Another application on the same subject was filed by one Col. Munir Hussain and through order dated 20.8.1991, a report was also called. The petitioners have assailed through the instant petition order dated 26.2.1973 whereby the land was cancelled by the Settlement Commissioner at Khata No. 192 of RL-II equivalent to 297 Plus, the report of the Additional Deputy Commissioner (General)/Notified Officer, dated 28.8.1991, whereby he submitted report for the allotment of the remaining Plus to the informers according to their claims after verification of their claims and thereafter if any land is left be disposed of to the occupants under Section 3 of the Repeal Act (Act-XIV) 1975. Ex parte report dated 9.5.1992 and the orders dated 26.2.1973 and 20.8.1991 were challenged in the writ petition.
4. That vide impugned judgment, the learned Single Bench, accepted the writ petition. The operative para of impugned order is reproduced as under:- "The impugned order dated 20.8.1991 to the extent of allotment of land to the informers is nullity in the eye of law and the same is set aside to that extent. However, the petition against order dated 26.2.1973 , has no force and as such the same is dismissed."
5. Learned counsel for the respondent has challenged the maintainability of I.C.A, on the ground that in writ petition, the petitioner has challenged the order dated 26.2.1973 when so far the evacuee law was not repealed and the provision of appeal was available with appellant, therefore, I.C.A, is not maintainable and is liable to be dismissed under Section 3(2) of Law Reforms Ordinance of 1972.
6. Conversely, the learned counsel for the appellant has opposed this objection an^l has contended that since Compensation and Rehabilitation Act, 1958 has been repealed in 1974, therefore, I.C.A, is very much competent and in this behalf learned counsel has relied on the law titled "Mst. Wazir Begum and others v. Member Board of Revenue/Chief Settlement Commissioner and others" (2000 SCMR 989) and has contended that after the repeal of Act since no appeal, revision or review was provided against the order of Revenue Authorities under Section 3(1)(b) of Evacuee Property and Displaced Persons Law (Repeal) Act, 1975), therefore, I.C.A, is very much competent.
7. Arguments heard, record perused.
8. Admittedly, the evacuee laws were repealed on 30.6.1974, The appellant has assailed the order dated 26.2.1973 when the evacuee laws were very much in field and were enforced and under the relevant law, the provision of appeal was available to the appellant.
9 Section 3(2)
"No appeal shall lie under sub-section (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court".
10. Admittedly, the Constitutional petition arising out of proceedings with regard to transfer of property in dispute inasmuch as original order was passed on 26.2.1973 which was subject to appeal when the same was passed. This is sufficient to satisfy the requirement of Section 3(2), Law Reforms Ordinance, 1972, which was thereby attracted.
Learned counsel-for the respondent has rightly pointed out- that the instant I.C.A, is not maintainable. Reliance is placed on the law laid down by the Hon'ble Supreme Court of Pakistan in case titled "Mst Karim Bibi and others v. Hussain Bukhsh and others" (PLD 1984 SC 344) and "Ch. Nazir Ahmed v. Molvi Masood-ur-Rehman Khan and six others" (PLD 2008 Lahore 405).
11. As a result of above discussion; we are of the considered opinion that the instant I.C.A, is hot maintainable as barred by Section 3(2) of Law Reforms Ordinance of 1972. Therefore, both the I.C.As, bearing Nos. 255/2006 and 256/2006 respectively are dismissed.