This judgment will dispose of Writ Petitions No, 1508-R/65 and No, 31/R/1966.
2. The material facts for the disposal of these two cases, briefly, are that Chhajju Khan, predecessor-in-interest of petitioners in Writ Petition No, 1508/R-1965, abandoned 415 bighas and 15 biswa s of agricultural land, in village Barwara in Alwar State (India). Out of this land, about 103 bighas of land is the subject-matter of the present litigation. The background of this land is that it originally belonged to Nasib Khan, father of Subhan Khan, respondent No, 1, and his aunt, Mst.
Gulab. Since Nasib Khan and Mst. Gulab left the village in 1913, the Revenue authorities handed over possession of the land of Mst. Gulab on 8-10-1915, and of Nasib Khan on 31-1-1916 to Bhikan Khan, father of Chhajju Khan, who is the father of the petitioners. Necessary entries in the relevant revenue record were also made where Nasib Khan and Mst. Gulab were shown under the ownership column as Mafroor Ghair Qabiz, and Bhikan Khan as Qabiz, Mutation No, 120 dated 31-1- 1916, was sanctioned in favour of Bhikan Khan as regards the land of Nasib Khan. On the death of Mst. Gulab, another Mutation No, 5 was sanctioned is his favour on 1-1-1926 regarding her land. It appears that Nasib Khan and Mst. Gulab did not show any interest in their lands and the revenue record maintained the same entries. In 1941, Nasib Khan filed a suit (being Suit No, 167, Annexure `A') in the Court of the Munsif, Lacnhman Garh, Alwar State (India) for possession of the land in dispute claiming it on his own behalf as well as being the sole heir of Mst. Gulab who had died earlier. On 24-8-1943, the suit was dismissed by the Civil Judge. An appeal was filed before the District Judge who partially modified the decree of the trial Court. Against the judgment and decree of the District Judge, two separate appeals were filed in the High Court of Judicature, Alwar State--one by the plaintiff, and the other by the defendant. The learned Judge of the High Court, vide his order dated 20.3-1945, dismissed the appeal of the plaintiff, but accepting that of the defendant, restored the order of the trial Court and dismissed the plaintiff's suit in toto. Application for permission to appeal to His Highness the Ruler of the State, was moved, but the same was dismissed on 1.8-1945. In compliance with these judicial orders, Mutation No, 463 was sanctioned in favour of C hhajju Khan on 18-1-1947, and the name of Nasib Khan from the column of ownership was removed, and, instead, Chhajju Khan was shown as the owner. According to the learned counsel for the petitioners, this mutation could not be given effect to in the special jamabandi due to the communal disturbances when the parties migrated to Pakistan.
3. Chhajju Khan filed claim form No, 10719 for the land in dispute as well as his own and the same was verified and he obtained allotment in villages Ghod Gulab Singh and Bhai Pheru. On 25-5-1954, Subhan Khan, the contesting respondent, being the son of Nasib Khan, also filed claim form for the same land and it was verified probably due to the amendment in clause (h) of Para. 4 of Chap. II, Part I of the Rehabilitation and Settlement Scheme by which "Mafrooraan" from Alwar State were made entitled to allotment of land under the Scheme and accordingly the Fard Haqiat of Chhajju Khan was proportionately reduced. According to the petitioners, this was done without any notice to Chhajju Khan or the petitioners. Chhajju Khan, on 7-4-1955, moved an application under para. 52 of the Rehabilitation and Settlement Scheme, Annexure TR', for getting back the area from the opposite-party on the basis of judgments and decrees passed by the appropriate Courts in Alwar State. This application was rejected by the Additional Settlement Commissioner (Land), Lahore, vide his order dated 26-2-1957, Annexure 'F'. He then filed a revision petition before the Settlement Commissioner (Land). The Deputy Secretary (Rural), on 25-10-1957, refused to grant stay order but directed that the matter be referred to the Border for comparison. In spite of repeated reminders, no action was taken in the matter. Chhajju Khan, therefore, was forced to file Writ Petition No, 480- R/1958 before this Court. This writ petition was accepted on 16-11-1959 with the direction that the relevant Settlement Authority should dispose of the interim stay application by passing an order one way or the other. Accordingly, on 19-1-1960, the Chief Settlement Commissioner granted stay order to Chhajju Khan to the effect that land, if already allotted against claim form No, 10719 of Chhajju Khan, should not be taken away till further orders. The main case, however, remained pending. Later on, Subhan Khan, respondent, moved an application for vacation of stay order. This application, along with the main revision petition, was forwarded to Mian A. M. Saeed, Settlement and Rehabilitation Commissioner, Lahore, for disposal. Earlier, on the death of Chhajju Khan, a mutation of inheritance was sanctioned in favour of the petitioners in Writ Petition No, 1508-R/1965.
These petitioners sold land measuring 593 kanals and 17 marlas situated in village Ghod Gulab Singh to Hassan Mohammad and others (petitioners in W. P. No, 31-R/1956) through a registered sale-deed dated 30-10-1964 for a sum of Rs, 80,000.00. On 15-11-1964, mutation in favour of these vendees was sanctioned by A. C. II and since then they are in possession of the same. The Settlement and Rehabilitation Commissioner, vide his order dated 23-11-1965, dismissed the revision petition of the petitioners, but accepted the miscellaneous application of the opposite- party. In his judgment, he also ordered that the mutation in favour of anybody else shall stand cancelled as being illegal. The present petitioners, being successors-in-interest of Chhajju Khan, filed Writ Petition No, 1508-R/1965, while their vendees Hassan Mohammad and others filed Writ Petition No, 31-R/1966.
4. Mr. Aftab Hussain, Advocate appearing on behalf of Subhan Khan, respondent (who is successor-in-interest of Nasib Khan, being his son) mainly relied upon clauses (e) and (h) of para. 4 of Chap. II, Part I of the Rehabilitation and Settlement Scheme. According to him, the claim of the peti-tioners is based on their adverse possession of the land in dispute in India, and, therefore, the same should be rejected under clause (e). He is basing the claim of his own client under clause (h) of the said paragraph. These clauses are reproduced below :- "4. Subject to any limitations that may be imposed under preceding Clause 3, land under the Scheme will be allotted to a claimant in an area corresponding in produce value to the land owned and abandoned by him provided that--
(e) claims submitted on the basis of adverse possession of land in the prescribed territory shall be rejected,
(h) claims submitted on the basis of the entries of the nature of ghair hazir or ghair gabiz in the revenue records of the prescribed territory shall be rejected. In the case of Alwar State the claimants shown as Mafrooran in the revenue record will, however, be entitkd to allotment of land under the Scheme."
5. As regards the application of clause (e) of para. 4 referred to above, it is suffice to say that Chhajju Khan predecessor-in-interest of the petitioners, never claimed any right in the land in dispute on the basis of adverse possession. In fact, as pointed out earlier, Nasib Khan and Mst.
Gulab abandoned their respective lands, and the possession of the same was given to Chhajju Khan by the Revenue authorities in Alwar State. He never held this land adversely to its real owners.
However, by flux of time, rights held by Nasib Khan and Mst. Gulab stood extinguished, while the same vested in Chhajju Khan under the Alwar State Revenue Code. A perusal of judgments of the Alwar State Courts shows that there was no issue about adverse possession. Thus, there is no foundation for this objection, because, as a matter of fact, the petitioners or their predecessors-in- interest never claimed the land on the basis of adverse possession. The petitioners' application under para. 52 of the Scheme was based on the judgments and decrees of the Courts in Alwar State coupled with Mutation No, 463 sanctioned in favour of Chhajju Khan on 18-1-1947. It appears that clause (e) applies to cases in which a party submitted his claim form on the basis of adverse possession as such. In other words, clause (e) will apply to cases in which title on the basis of adverse possession has not yet matured and determined by a competent authority otherwise once the title vests in the person claiming adverse possession, he becomes full owner. This interpretation gets support from the fact that the Settlement authorities cannot adequately and effectively determine the question of adverse possession, and, therefore, this bar has been placed by the Scheme on such adverse possession. In this view of the matter, clause (e) is not attracted to the facts of the present case.
6. Let us now examine the second contention of Mr. Aftab Hussain regarding the application of clause (h) to the case. According to him, a right is to be given to a claimant in accordance with the entries in special jamabandi received from the prescribed area of India as laid down in para. 29 of the Scheme. In the present case, the special jamabandi received from Alwar State shows Nasib Khan, father of Subhan Khan, respondent, as "Mafroor". According to the learned counsel neither the Settlement authorities nor this Court is competent to go behind the entry in the special jamabandi received from Alwar State which must be given effect to under the Scheme. Thus, the mere entry in the special jamabandi as "Mafroor" makes the respondent entitled to allotment of land under clause (h). It is further argued that any decree or judgment from India, if inconsistent with any provisions of the Scheme, the Scheme should be preferred to and such judgments and decrees of the Indian Courts should be ignored. It is also contended that in case of any inconsistency between para. 4 of the First Part, and para. 52 of Part H, preference must be given to para. 4 over para. 52. The net result of the arguments of Mr. Aftab Hussain is that a mere entry in the special jamabandi as "Mafroor" has conferred a right upon the respondent under clause (h) of para. 4 of the Scheme and this right cannot be taken away by any authority in Pakistan, the Scheme being a special Statute.
7. I asked the representative of the Settlement Department to make available the file concerning the amendment of clause (h) of para. 4 of the Scheme. In spite of the best efforts this file could not be traced. However, the Chief Settlement Commissioner has sent his written opinion in this behalf.
According of this opinion, on representation made by a large number of displaced persons from Alwar State, an amendment was made in clause (h) of the Scheme whereby "Mafrooran" of that State were made entitled to allotment of land under the Scheme. According to this representation, it was a usual practice in Alwar State that whenever an owner of the land absented himself from his land even for a short period, the Revenue authorities used to enter his name as Mafroor in the Revenue record and the possession of such land was given to another person for cultivation who was entered as Qabiz. However, the moment such owner would come back, he would resume the possession of his property without any difficulty, and his description as Mafroor would disappear, and he would be shown as owner. The Chief Settlement Commissioner accepted this representation and amended clause (h) of para. 4 of the Scheme. However, it is made clear by the Chief Settlement Commissioner, in his opinion, that if there be any orders of the superior Courts in India specifically disentitling a person recorded as Mafroor in the special jainabandi, it is open for the High Court to decide whether the orders of the superior Courts in India should be given effect to or not.
8. The ordinary dictionary meaning of the word "Mafroor" is runaway, absconder, fugitive, but under the Alwar Revenue Code, it means an 'absentee land-owner who fails to cultivate his land'. It appears, that in Alwar State, if an owner, due to any reason, became absentee and unable to cultivate his land, the same was given to another person for cultivation only and the entry in the revenue record was made showing the owner as Mafroor Ghair Qabiz in the ownership column, and another person who cultivated it as Qabiz. If such a Mafroor would come back, he was entitled to resume the possession of his property, and then he was to be entered as owner. However, if such an owner remained as Mafroor continuously for a particular period, then under the Revenue Code of Alwar State, he was to lose his ownership in the land. In the present case, it is an admitted fact, that from 1913, Nasib Khan, father of Subhan, respondent, and list. Gulab left the village and were continuously recorded as liafroor till 1941 when Nasib Khan filed a suit for possession. During this period, the land continuously remained under cultivation of Chhajju Khan, predecessor-in-interest of the petitioners. That suit was dismissed as barred by tine. Nasib .Khan did not succeed before any Court, including the High Court of Alwar State. Thus, we have to interpret the word "Mafroor" not in general but in this particularly background of this case.
9. If the word "Mafroor" is interpreted as suggested by Mr. Aftab Hussain, it, obviously, will result in clear injustice. It was frankly conceded by him that if Nasib Khan or his son, Subhan Khan, had remained in India, he was not entitled to get this land. However, he contends, that entry in the special jamabanli as Mafroor read with clause (h) of para. 4 has conferred this right upon his client.
It is true that if the respondent had not been shown as "Mafroor" in the special jamabandi he had no right to the land in dispute, and, perhaps, that was the reason that he did not file any claim form for this land in the beginning but submitted his claim form only after the amendment of clause (h).
Who have to judge whether apart from this entry in the special jamabandi he is entitled to the land in dispute. To determine his entitlement, we have to examine some other provisions of law.
According to the preamble of the Displaced Persons (Land Settlement) Act, 1958, it was to provide for the permanent settlement of displaced persons on land in order to compensate them for the losses suffered by them on account of expropriation by the Government of India, of their rights in property in India or any area occupied by India. Thus, during the phase of permanent settlement of displaced persons on land, the main object is to compensate them for the losses suffered by them in India. The word "allotment" under this Act, is also defined as "allotment of agricultural land made to a displaced person, under this Act, or any Scheme in lieu of any claim registered and verified."
Under section 14 also, allotment was to be made against verified claims of land. After permanent settlement under section 15, the land was to vest absolutely in such persons under section 16.
Similarly, under para. 2, Chap. II, Part I of the Rehabilitation and Settlement Scheme, only such persons from the prescribed area were to be allotted land who owned land there. It is thus clear that under the Land Settlement Act of 1958, and the Rehabilitation and Settlement Scheme, a displaced person is to be compensated in lieu of the losses suffered in India before his migration to Pakistan. The question, therefore, arises whether Nasib Khan, or his son, Subhan Khan, suffered any such loss in Alwar State in lieu of which he can claim compensation under the Land Settlement Act, or the Scheme so far as the laid in dispute abandoned in Alwar State is concerned. Mr. Aftab Hussain the learned counsel for the respondent frankly conceded that his client had suffered no such loss, and if he had remained in India, he could not get the property in dispute as he had lost litigation up to the highest level.
10. Similarly, under the Punjab Refugees (Registration of Land Claims) Act, 1949 (Act V of 1949), refugees were required to submit their claims in respect of lands abandoned by them in India. The word "claim" is defined as under :-- "Statement of loss or damage suffered by a refugee since the first day of March 1947, in respect of his land within the territories now comprised in the Provinces of East Punjab and Delhi, the East Punjab States, and the States of Alwar, Bharatpur, and Bikaner."
It was under this Act that the claim of Chhajju Khan was verified, which included the land in dispute, but, subsequently Nasib Khan, father of Subhan Khan, respondent, also filed a claim under this Statute, and his claim was verified on the basis of entry in the special jamabandi as Mafroor. The question would arise as to who has suffered loss or damage in respect of the land in dispute abandoned in Alwar State, whether it Chhajju Khan or Nasib Khan. The answer is obvious, and the learned counsel for the respondent had to cancede that it was Chhajju Khan who had suffered this loss so far as the land in Alwar State was concerned. It is an admitted fact that in view of the final adjudication by competent Courts in India, Nasib Khan had no right whatever to the land in dispute and therefore it can be ligitimately inferred that he had suffered no loss as regards this particular land in dispute in Alwar State is concerned. On the other hand, by flux of time, and the judgments of competent Courts in Alwar State, Chhajju Khan had acquired proprietary rights in the land in dispute. He can, therefore, rightly claim that he alone had suffered the loss for the land in question, and therefore both under the Statute and the Scheme, he alone should be compensated in this behalf. In the face of documents of unimpeachable character, which have attained finality, a mere entry in the special jamabandi showing Nasib Khan as Mafroor has lost all significance and should not be attached any sanctity as suggested by Mr. Aftab Hussain. The law should not be interpreted in such a manner that it may lead to injustice, and the result may be to give property to a person who is not entitled to and deprive a person who is entitled to it. Keeping in view the broad principles of justice, my view is that the word "Mafroor" in clause (h) of para. 4 is used in a qualified sense, and the Settlement authorities are competent to judge whether such a Mafroor has incurred any disability, and, if so, what is its effect on his entitlement. In other words. the Settlement authorities are not bound to follow this clause blindly without applying their mind but they are competent to adjudicate upon the status of a Mafroor in the light of other relevant circumstances available, and if satisfied, can ignore such an entry. In the instant case, Nasib Khan, after losing litigation up to the High Court of Alwar State, was disentitled to get the land in dispute. If he had remained in India, he could not claim this land. It appears that the entry in the special jamabandi could not be corrected due to lack of time. As pointed out earlier, after the decision of the High Court, Mutation No, 463 regarding the land in dispute was sanctioned on 18-1-1947 in which the name of Nasib Kban was removed from the column of ownership, and, instead, Chhajju Khan was shown as the owner. After the attestation of this mutation, the entries in the special jamabandi were also to be incorporated in due course, but due to communal disturbances and mass migration of Muslims from India, this could not be done. In this background, it is clear that even the entry in the special jamabandi is only per chance, and not under any valid law or order. In fact this entry is contrary to the judgments of Alwar State. The Settlement authorities are, therefore, competent to ignore such entry and find out whether otherwise Nasib Khan, or his son, Subhan Khan is entitled to allotment or not.
11.There is another legal hurdle in the way of the respondent which appears to be difficult to cross.
The finding of the Alwar Courts that Nasib Khan, father of Subhan Khan, respondent, was not entitled to the land in question, has become conclusive. The judgments and decrees of the Courts in Alwar State being inter se between the parties with regard to the property in dispute, have attained finality and therefore are binding upon the respondent. In other words, those judments and decrees will operate as res judicatd against the contesting respondent. Subhan Khan, respondent, being successor-in-interest of his father, Nasib Khan, cannot be allowed to flout the decisions of the Courts in Alwar State which are binding upon him. By giving the land in dispute to Nasib Khan, clearly amounts to nullifying the effect of those judgments and decrees in Alwar State.
This cannot be to allowed to be done under the garb of a mere entry in the special jamabandi.
12.Mr. Aftab Hussain tried to argue that under para. 29 of the Scheme, the Settlement authorities are bound to give effect to the entries made in the special jamabandis received from India.
Keeping in view the background in which these special jamabandis are received from across the Border, and knowing how many mistakes they carry, it appears reasonable that the Settlement authorities are left with some discretion to judge the correctness of entries in these jamabandis other- D wise it may result in miscarriage of justice. It is a question of common knowledge that in numerous cases it has been found that entries in special jamabandis received from India were erroneous and were corrected either by comparison at the Border or by other evidence. If the contention of Mr. Aftab Husain is accepted on its face value, it will mean that under no circumstances the Settlement authorities can examine the correctness of entries in such special jamabandis but should follow them blindly. This cannot be the intention of the Legislature to attach such sanctity to the entries in the special jamabandis received from India where the authorities are hostile to Pakistan and are liable to commit errors. It appears that some discretion has to be conceded in favour of the Settlement authorities same that they may correct errors, if any, contained In the special jambandis received from India. This interpretation gets support from the last part of this para. No, 29 which provides that if any hardship is caused by the application of this Rule, in individual cases, a reference should be made ,B to the Rehabilitation Commissioner. This clearly indicates that the Rehabilitation Commissioner will have the power to remove that hardship. This can only be done if some power is conceded in his favour. Thus, it appears clear that para. 29 is not a complete bar, but, in special circumstances, the Settlement authorities will be competent to go behind the entries made in the special jamabandis received from India. In the instant case, the hardship is apparent, but no such reference was made to the Rehabilitation Commissioner.
13.The argument of the learned counsel for the respondent that if the petitioners are given relief under para. 52 of the Scheme, it will be contrary to clause (h) of para. 4 of the same Scheme.
According to him, clause (h) of para. 4 being in the First Part of the Scheme, should be given preference over para. 52, which is in Part II dealing with instructions, and in the case of any inconsistency between the two, the latter should be ignored. If this interpretation be accepted, it will make para. 52 redundant which will result in great hardship and injustice because there are numerous refugees who have been given relief only under this para. As observed earlier, the term "Mafrooran" under clause (b) of para. 4 is used in a qualified sense, and the Settlement authorities can go into the question whether such mafrooran have disentitled themselves from such allotment. In other words, their entitlement can be examined in spite of the entry in special jamabandi is showing them as mafrooraan. So clause (h) will not confer any unqualified right upon mafrooraan from Alwar State. Once it is conceded that the Settlement authorities can go into that question, then inquiry under para. 52 becomes permissible. If, for example, there is a genuine mistake that a person has been shown as mafroor in the special jamabandi whereas, in fact, it was not so, the Settlement authorities will certainly have power to rectify this error, and in order to determine the rights of any other persons, the Additional Rehabilitation Commissioner (Land), under para. 52, will be competent to hold the necessary inquiry under that para. 14.From a perusal of the impugned judgment of the Additional Rehabilitation Commissioner (Land), Lahore dated 26-2-1957 Annexure 'F', it is clear that he has not approached the main issue in its proper perspective. His approach appears to be erroneous. It is not a well-reasoned judicial order but the application of Chhajju Khan, under para. 52, has been disposed of in a summary manner. The learned Additional Rehabilitation Commissioner (Land) seems to be under the impression as if the prayer of Chhajju Khan was that the name of Nasib Khan as 'Mafroor' be deleted from the record. In fact the prayer of Chhajju Khan was entirely different, which is reproduced below for ready reference. {{URDU TEXT}} To demonstrate the erroneous approach of the learned Additional Rehabilitation Commissioner (Land), the operative part of his order is also reproduced below :- {{URDU TEXT}} As is clear from the application of Chhajju Khan, he did not ask for removal of the name of Nasib Khan as mafroor from the record. In fact, what the learned Additional Rehabilitation Commissioner
(Land) was called upon, under para. 52 of the Scheme whether Chhajju Khan could be granted any relief on the basis of judgments and decrees of Courts in Alwar State and Mutation No, 463. The learned Additional Rehabilitation Commissioner failed to adjudicate this vital issue involved in the case and no finding is given on this point. Similarly, the observation about Mutation No, 463 that it is not decided on facts, is not understandable because no reason is assigned in this behalf. The said mutation was decided on the basis of judgments given by various Courts, including the High Court in Alwar State against Nasib Khan, predecessor-in-interest of Subhan, respondent. After going through this brief order of the learned Additional Rehabilitation Commissioner (Land), the impression one gets is as if he has ignored the basic issue involved in the case which required adjudication but decided the case on erroneous consideration. In the circumstances, I have no option except to quash this order.
15. As regards the impugned order passed by the learned Settlement Commissioner dated 23-11- 1965, it is also open to objection on more than one ground. It is observed in this judgment that orders passed by the civil Court and the High Court of Alwar State are not to the effect that the name of Nasib Khan mafroor should be deleted from the revenue record. This clearly demonstrates his wrong approach. Thus he has also tried to follow the decision of the Additional Settlement Commissioner. Moreover, he has attached more importance to the miscellaneous application of the opposite-party than the main revision petition. It appears from the perusal of his judgment that he was mainly dealing with the miscellaneous application for vacation of stay order filed by the opposite-party but also disposed of the revision petition. The proper course for him was to deal with and dispose of the main-- revision petition, and if he was going to dismiss that revision petition, there was no occasion for the disposal of the petition for vacation of stay order. The more serious objection against the judgment of the learned Settlement Commissioner, is that while disposing of the revision petition, he has also cancelled the mutation passed in favour of Hassan Mohammad and others, petitioners in Writ Petition 31-R/1966, who were the bona fide vendees. It is an admitted fact that the petitioners in Writ Petition 31-R/1966 were neither impleaded a party nor otherwise given any notice nor afforded any opportunity before passing the impugned order. They had purchased the property through a registered sale-deed for Rs, 80,000.00. The sale-deed was implemented in a mutation duly sanctioned in their favour. They have been deprived of such a valuable property without even giving any notice to them. It is true that these vendees step into the shoes of their vendors but they cannot adequately safeguard the interest of their vendees to the same extent as they themselves would do. The owners of landed property of considerable value should not be deprived of their property in their absence in slip-shod manner. Moreover, according to the latest view of the Supreme Court the principle of audi alteram partem is equally applicable to the transferees or vendees from allottees (P. S. L. A. 283/1970) and the petitioners will therefore be entitled to the benefit of the same. The impugned order of the learned Settlement Commissioner is, in the circumstances, liable to be quashed on this ground alone.
16. The learned counsel for the respondent contended that since para. 52 was deleted in 1959, the same cannot be invoked now. He tried to rely upon section 6 of the General Clauses Act and argued that none of the conditions mentioned therein was applicable in the present case. He also referred to the same authorities in this behalf. Without going into this question, it is suffice to say that the case was pending at the time when para. 52 was deleted, and, therefore, this case will be covered by the same para. Reliance in this behalf can be placed upon Rukun Din and others v.
Hafiz-ud-Din and another and Hap Mohammad Sadiq v. Fateh Mohammad and others . For the foregoing reasons, I allow these writ petitions, quash the impugned orders, and remand the cases to the Chief Settlement Commissioner with the direction that he should entrust the same to the appropriate Settlement Authority to decide them in accordance with law after giving notice to the parties concerned. The parties are left to bear their own costs. PLD 1962 Lah. 161 PLD 1967 SC 233