1. ANWARUL HAQ, C, J.-The dispute in this case concerns State agri--cultural land measuring 80 kanals and 18 marlas; comprised in Killa No. 20 of Square No. 44 and Killas 16 to 25 of Square No. 45 in Chak No. 19/98, Tehsil Khanewal, District Multan. Before Partition it was allotted to a non-- Muslim member of a criminal tribe, and on his migration to India respon--dents Nos. 1 to 3, namely, Saif- ur-Rehman, Ahmed Din and Ali Muhammad settled on this land as displaced persons from India.
2. On the ist of June 1965, the Chairman of the Allotment Committee allotted this land to one Noor Muhammad son of Pir Bakhsh by treating the land as evacuee property. The appeal of the respondents against this allot--ment order was dismissed by the Deputy Settlement Commissioner on the 20th of November 1969. The respondents thereupon filed a revision petition bearing No. 194 of 1965-56, which was taken up for disposal by the learned Settlement Commissioner along with seven other revision petitions relating to State owned agricultural land, including Revision Petition No. 333 of 1965--67 filed by the present appellant Qadir Bakhsh against one Noor Muhammad son of Bega.
3. It appears that Qadir Bakhsh was holding land in this very Chak, other than the land now in dispute, as a member of a criminal tribe, having obtained the allotment in 1951. This land was also treated as evacuee property by the Settlement authorities and allotted to a displaced person by the name of Noor Muhammad son of Bega on the 29th of May, 1965. As his appeal against this allotment was dismissed by the Deputy Settlement Commissioner he approached the Settlement Commissioner by means of the revision petition mentioned above.
4. Apprehending that the land involved in his revision petition may be treated as evacuee property by the Settlement Commissioner also, he applied, during the Pendency of his revision petition, to the Collector of the district for the grant of alternative land, but this prayer was rejected by the Collector. Qadir Bakhsh filed an appeal against this order which was accepted by the learned Additional Commissioner by his order dated the 27th of June, 1966, and Qadir Bakhsh was held entitled to the allotment of alternative land. Armed with this order he applied to the learned Settlement Commissioner for being impleaded as a respondent in Revision Petition No. 194 of 1965- 66, which has been instituted by the three respondents as petitioners. He wanted the allotment of the State land occupied by the respondents, in case their revision petition was rejected by the Settlement Commissioner and the land became available for allotment. His application for being impleaded as a party was accepted by the learned Settlement Commissioner by his order dated the ist of July 1966.
5. All the eight revision petitions were disposed of by the learned Settlement Commissioner by a single order dated the 30th of September, 1966. The revision petition of Qadir Bakhsh was rejected on the finding that the land involved in that case was, indeed, evacuee property and had rightly been allotted to a displaced person, As to the revision petition of the respondents bearing No. 194 of 1955-66, the learned Settlement Commissioner reached the conclusion that as the non-Muslim member of the criminal tribe had not acquired rights in this land, it could not be treated as evacuee property and was thus not available for allotment to the displaced person Noor Muhammad son of Pir Bakhsh, with the further consequence that the petitioners Ahmed Din etc, were entitled to remain in possession of this land as members of criminal tribes.
6. Appellant Qadir Bakhsh once again applied for the allotment of alterna--tive land and in his report of the 25th of October, 1966, the Sub-Divisional Magistrate, Multan, proposed the land in dispute for Qadir Bakhsh on the ground that this land was being held by unauthorized occupants. On the 3rd of November, 1966, the Collector, Multan, ordered that the unauthorized occupants should first be dispossessed under section 32 of the Colonization of Government Lands Act, 1912. The respondents thereupon went up in appeal which was accepted by the learned Additional Commissioner, Multan, by his order dated the 7th of December, 1966, on the ground that previously, in his capacity as the Settlement Commissioner, he had allowed this land to remain with the respondents as members of criminal tribes.
7. The appellant Qadir Bakhsh then filed two separate applications for the review of the two orders made by the learned Additional Commissioner on the 30th September, 1966, and the 7th of December, 1966, the first one in his capacity as Settlement Commissioner and the second one as Additional Commissioner (Revenue). Both these review applications were accepted by this Officer by his orders dated the 3rd of March, 1967, observing that an error had crept in to the judgment of the 30th of September 1966, as the respondents were not members of criminal tribes. He, therefore, set aside both his previous orders and restored the order of ejectment made by the Collector against the respondents.
8. The respondents thereupon filed two separate writ petitions to challenge the validity of the orders made by the Additional Commissioner (Revenue) in review, which petitions were accepted by the High Court by its order dated 15th of January, 1969, and the case was remanded to the Officer concerned for afresh decision. This order of the High Court was upheld by the Supreme Court.
9. After remand another Additional Commissioner (Revenue), also exercis--ing the powers of the Settlement Commissioner (Lands), accepted the review applications by his orders dated the 15th of March, 1972, and set aside the order of his predecessor dated the 6th of December, 1966, and restored the order of ejectment passed against the respondents by Collector. He also reviewed the previous order of the Settlement Commissioner and deleted reference to the respondents as entitled to continue in possession of the land as members of criminal tribes.
10. The respondents once again invoked the writ jurisdiction of the High Court, and their writ petitions were accepted by a learned Judge on the 17th of June, 1974, on the ground that Qadir Bakhsh not being a party to the revision petition filed by Ahmed Din etc. Could not file a review petition against the provisional order of the Settlement Commissioner. The learned Judge added that in case Qadir Bakhsh wanted to avail the right of review, then the proper course open to him was to submit an application to the Settlement Commissioner to be impleaded as a party in the revision petition filed by Ahmed Din and others. In passing, the learned Judge also observed that the correction made in review did not appear to be covered by subsec--tion (3) of section 220 of the Displaced Persons (Land Settlement) Act. 1958.
11. Leave to appeal was granted to Qadir Bakhsh to examine the contention that the learned Judge in the High Court was in error in thinking that Qadir Bakhsh had not become a party to the revision petition instituted by the respondents Ahmed Din etc. Before the learned Settlement Commissioner, as, in fact, he had made the necessary application on the ist of July 1966, which had been allowed on that very date by the Settlement Commissioner, and a copy of this Application was placed on the record.
12. At the time of the bearing of the appeal, a preliminary objection was raised by Mr. Jariullah, the learned counsel for the respondents, to the effect that the appeal had abated for the reason that respondent Ahmed Din died on the 14th of January 1977, and the application for bringing his legal repre--sentative on the record was not made by the appellant until the 25th of February, 1978, and, therefore, it was barred by 318 days. He submitted that in the application filed by the appellant for the condonation of delay it had been stated that he had come to know of the death of Ahmed Din on the 27th of September, 1977, and that he had obtained a copy of the death certificate on the 29th of September, 1977, but beyond this date there was no explanation for the period spent up to the 25th of February 1978. In the circumstances, Mr. Jariullah contended that the appeal had abated in to for the reason that the order under challenge was one indivisible order relating to all the three respondents, and the appeal could not proceed against the other two respondents ire the absence of Ahmad Din or his legal representative. In support of his submissions he placed reliance on Iman Ali v. Furkun Ali Mondal (PLD 1760 Dacca 3), Elaha Bakhsh v. Budha and another (1968 SCMR 328), Nawab Karim v. The Chief Settlement Commissioner arid 2 others (1970 SCMR 72 ) and Shah Muhammad v. Muhammad Bakhsh(PLD 1972 SC 321) and some other judgments to the same effect.
13. The learned counsel for the appellant submitted that although it is correct that in the application for condonation of delay no mention is made of the period spent by the appellant between the 29th of September 1977, and the date of presentation of the application in the Supreme Court on the 25th of February, 1978, yet even this period should be allowed as the appellant was an illiterate person from a village and was not properly advised. In the alternative he contended that as the interest of the other two respondent was exactly identical with that of Ahmad Din, and all the defences open to Ahmed Din were being taken on behalf of the other respondents this was, a case in which the appeal could be said to have become defective by reason of the absence of a necessary party, in terms of the relevant rules laid down in Order XVI of the: Supreme Court Rules, which do not at all speak of abatement of any appeal pending in the Supreme Court. Finally, he sub--mitted that in any event this was not a case of total abatement against all the respondents, as they should be presumed to beholding the land in dispute in equal shares, and, therefore, at best the 1/3rd share falling to the lot of the deceased respondent could be excluded from the purview of the appeal which could then proceed against the other two respondents. The learned counsel also submitted that if we were to apply the provisions of the Civil Procedure Code, as contained in Order XXII thereof in regard to the abate--ment of appeal pending in the Supreme Court, then we also ought to take note of the fact that under the Law Reforms Ordinance of 1972, there is -'now no automatic abatement of suits or appeals under the Civil Procedure Code. In support of these submissions he referred us to Wali v. Manak Ali (PLD1965SC651.), Agha Shaukat Ali v. The Settlement & Rehabilitation Commissioner (PLD1973SC124) and Ahmad Din v. Abdul Khalik (PLD 1979 Lah. 898)
14. After hearing the learned counsel for the parties on the preliminary objection regarding abatement of the appeal owing to the failure of the appel--lant to bring on record the legal representatives of respondent. Ahmad Din within the period allowed by the rules of this Court, we are of the view that it is not necessary in this case to examine the elaborate contentions raised by them as to whether Order XVI of the Supreme Court Rules contemplates abatement as such as it is understood under the Civil Procedure Code, and whether this is a case in which the appeal has abated only partially as against Ahmad Din, or completely as against all the three respondents. We find that in the facts and circumstances of this case it is correct, as asserted by the learned counsel for the appellant, that the interest of the other two respondents to this appeal is exactly identical with that of the deceased respondent Ahmad Din, and, therefore, even if, for any reason, we were not to allow. The appellant to bring Ahmad Din's legal representatives on the record after such a long delay, it is possible to hold that the record in this case bad not become defective by reason of the death of Ahmad Din as contemplated by rule 7 of Order XVI of our Rules. Without, therefore, laying down any general rule, which matter we would like to examine in a more appropriate case, we are of the view that the present appeal should be decided on merits as against all the three respondents.
15. Coming now to the merits of the case, we find that the position is very simple. The learned Judge in the High Court was clearly in error in thinking that the appellant had not been impleaded as a party to the revision petition which was pending before the Settlements. As already stated, the appellant had made an application in this behalf, which had been allowed by the learned Settlement Commissioner on that very date. Such being the case, he was competent to file a review petition before the Settlement Commissioner in his capacity as the Settlement Commissioner as well as in his other capacity as Additional Commissioner (Revenue).
16. On the merits of the order made in review, Mr. Jariullah was not able to say much on behalf of the respondents, for the reason that admittedly none: of them belonged to a criminal tribe. To this extent, therefore, there was an error patent on the case of the record in the order made by the learned Settle--ment Commission while disposing of the revision petition of the respondents and observing that they would continue in possession of the land as members of criminal tribes.
17. The result, therefore, is that we would accept this appeal, set aside the order of the Lahore High Court and restore the two orders made by the learned Settlement Commissioner, who was also the Additional Commissioner (Revenue), in review. The respondents would, therefore, remain liable to ejectment as the land not being evacuee property, they apparently have not legal right to continue in possession there of as displaced persons.
18. It was submitted by Mr. Jariullah, the learned counsel for the respondents that even the appellant was not entitled to obtain this land as a member of a criminal tribe, as the Criminal Tribes Scheme was repealed by the Provincial Government in 1956, and in support of this submission, he produced before us an unreported judgment of the Lahore High Court dated the 12th of August 1975. We consider that it is not necessary for us to examine this contention, as it would be for the competent authority to decide whether the appellant: would be eligible to obtain the allotment of this land as member of a criminal tribe once the land is vacated by the' respondents as directed in the orders made by the learned Settlement Commissioner and Additional Commissioner (Revenue) in review.
19. In the circumstances, we would leave the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.