' The deceased petitioner and respondent No, I are real brothers. Originally land measuring 124 Kanals, 9 Marlas situate in village Bhasin, Tehsil and District Lahore was allotted in the name of the petitioner on 6th April 1962, by the Border Area Committee, under the Border Area Scheme. It is stated by the learned counsel for respondent No. 1 that similar land had also been allotted to respondent No. 1 but cancelled in 1962 for the reason that two allotments could have not been made in the name of the two brothers. A note was also recorded on the Khata of the respondent that his name should be included alongwith that of the petitioner.
2. It is admitted by the learned counsel for the respondent No, I that the Border Area Committee never made any direction to implement that order nor was it, in fact, given any effect. The situation went on like that till 1969, when the respondent applied, on 15th May, 1969, to the Border Area Committee to include his name as well. The application of the respondent succeeded on 22nd October, 1969, when his name was also included. It appears from the order Annex. 'C' that the petitioner was not present and that it was a sort of proposal to which only the respondent agreed.
3. The petitioner filed Writ Petition No, 1158-R of 1969 before the implementation of that order. It succeeded on 7th May 1975. By declaring the order dated 22nd October 1969, as without lawful authority and of no legal effect. The case was, however, sent back to the Border Area Committee to hear the parties, consider the record and such other evidence that may be produced by them to pass a fresh order in accordance with law.
4. The Border Area Committee thereafter recorded the evidence produced by the parties. The deceased petitioner himself made a statement before the Border Area Committee in the following terms :- "I am allottee under Border Area Scheme in village Bhasin. I am in possession of 15 acres of land out of the area allotted to me, and Shujauddin (respondent) is in possession of 7 acres. I have deposited the price of the land in the Treasury and have obtained the proprietary rights. I do not want to give half of the land to my brother-applicant 15 acres which is in my possession may be allowed to remain with me."
' The Border Area Committee took note of this statement but allowed half share to the respondent No. 1 on the ground that the two brothers were allottees in equal shares. Thus only 112 remained with the petitioner. The petitioner challenged that order through the present petition.
5. The prayer made in this petition is that the order dated 5th December, 1977 passed by respondent No, 2 be set aside with the declaration that the same is without lawful authority. The petitioner did not withdraw his statement or the offer made therein. I asked the learned counsel for the petitioner if the statement dated 5th December, 1977 reproduced in para 4 above had been made by his client. He informed me that the petitioner had already died but his son, present in Court, may be asked about it. On being asked the son stated that though the statement is correct, yet the legal heirs were not prepared to abide by the same. A son-in-law of the petitioner who was also present bad the same views.
6. The learned counsel for the petitioners also asserted the same position on legal ground and argued that the respondent No, 2 had no authority in law or on facts to hold that the land in dispute has been allotted jointly to the parties. According to him, the deceased petitioner and his son constituted 'Dori' and no portion of the land could have been given to respondent No. 1 even if his allotment was cancelled on a promise to accommodate him in the allotment of the petitioner.
7. The factual position taken by the learned counsel for the petitioner appears to be correct. The learned counsel for the respondent could not point out from the record if respondent No. 1 had at any time been shown as an allottee alongwith the deceased petitioner. They only referred to a note made by the Border Area Committee, while cancelling allotment of the respondent No. 1 that his name should be included in the allotment of the petitioner.
8. Admittedly, this note had been made ex parte and the petitioner was never heard. Consequently, he was not bound by it and could not be compelled to share his allotment with respondent No 1.
However, as he did make a statement to retain only 5 acres and to allow rest of it to the respondent No. 1, his real brother, the Border Area Committee could not give more than that to the respondent No 1.
9. The question arising, However, is whether the legal heirs or the deceased petitioner can be allowed to retract or allowed an equitable relief in this jurisdiction, after that offer had been made. I am of the view that the petitioner neither under equity nor under law can claim the entire land.
Firstly, it is a civil right and any person can deal with it in any legal way he wants and can also surrender it in favour of a party subject to any legal prohibition.
10. Again, the case in question had been sent back to the respondent No, 2 by this Court on a writ petition filed by the deceased petitioner. The petitioner was thus in the capacity of a plaintiff and he could surrender a part of his claim under Order II, rule 2, of the C. P. C.
11. It is to be noted that the deceased petitioner was granted land under a Scheme. He therefore, could not be allowed to reagitate and reassert his claim, after abandoning it once as held in the case of Asghar Hussain (1). Such a step was irrevocable. It is to be noted in this case that both the brothers paid for their share of the land to get proprietary rights. Thus the lenl heirs are precluded to press their claim against at least 7 acres of land for which petitioner waived his claim once. {{FOOT NOTE}}
(1) 1968 SCM R 475 {{FOOT NOTE}} For the reasons given above, the order of respondent No, 2, so for as it goes beyond the statement made by the petitioner, is declared to be without lawful authority and of no legal effect. The respondent No, 2 B shall, therefore, transfer the agreed 7 Acres to respondent No. 1, while the remaining land shall remain with the legal heirs of the deceased petitioner. There will be no order as to costs.