This writ petition calls in question the validity of the orders of the Board of Revenue dated 8th June, 1969 (Annexure 'R') and dated 5th August, 1967 (Annexure `P') as also the order of Mr. Ali Ahmed, Addi--tional Commissioner (Cons.), (Annexure'N') dated 14th May, 1966.
2. The matter arises out of a dispute about inheritance of the estate of Imam-ud-Din, a refugees right-holder under the West Pakistan Rehabi--litation and Settlement Scheme. Imam-ud-Din died in 1947, after migra--tion to Pakistan. He left two sons and one daughter namely, Dr. Qbdur Rehman's, petitioner, Akbar Khan, Asghar and Mst. Nawab Begum. Mst. Nawab Begum also died soon after. She left three sons and one daughter who are respondents Nos. 1 to 4 in this petition.
3. Since Imam-ud-Din owned agricultural land in East Punjab, the petitioner submitted a claim on his behalf which was registered at Gujran--wala at Serial No. 3970. A similar claim was also filed by petitioner's ' brother Akbar Khan Asghar in Okara.
4. Imam-ud-Din's entitlement was certified for 1517 P.
1. Units. An entry was, therefore, made in R. 1. 11 register of village Khokerkey. The inheritance mutation of the estate of Imam-ud-Din thereafter was sanction-- ed on 10th August, 1953 in the name of the sons only. Mst. Nawab Begum was thus illegally excluded from the inheritance, although she was an heir under para. 46 of the scheme.
5. Pursuant to the attestation of this mutation, the petitioner who was held entitled to 758 units retained them at Gujranwala while the balance units were transferred at the instance of Akbar Khan Asghar to Rahimyar Khan and were satisfied in village Latki.
6. The petitioner who was posted as a Sub-Assistant Surgeon in Gujranwala approached the Financial Commissioner for allotment of land to him in this District. His case was recommended by Mr. Akhtar Hussain for preferential treatment. On the 22nd of July, 1953 a proposal at Khata No. 87 for allotment of an area of 64 kanals 9 marlas in village Khoker--key was made in his favour. This area was considered to be equivalent to 532 units. This area was allotted to him on the 7th of October 1953. Out of land so allotted, two khasra numbers, i.e. No. 248 and 252 were thereafter excluded from his allotment by an appellate order dated 2nd December, 1958 passed at instance of some third party. However, on the 31st of August, 1959 Khasra No. 248 was restored to the petitioner by order of Khan Ahmad Raza Khan, Rehabilitation Commissioner. Some other land was also allotted to the petitioner on Khata 177/87 in full satis--faction of the units left with him. Later on however, on the 1st of November, 1959 the allotment made on Khata No. 177/87 was cancelled except to the extent of share in the well, since the other area allotted on that Xhata formed part of a graveyard.
7. In the year 1961 an application was submitted on behalf of respondents Nos. 1 to 4 for review of mutation of inheritance of Imam-ud---Din and for inclusion of their name under para. 46 of the scheme. The mutation was, therefore, re-attested on 6th November 1961. Dr. Abdul Rehman's petitioner and his brother Akbar Khan Asghar were held entitled to only 2/5th area each from the estate of their father while the share of Mst. Nawab Begum, their sister, was determined as 1/5th which was ordered to be given to the said respondents. The entitlement of the petitioner and his brother was thus reduced to 607 units each while res--pondents Nos. 1 to 4 were held entitled to 303 units.
8, Akbar Khan Asghar who as stated above has secured allotment in vill..Ge Latki in his name gave proportionate share of the area so allotted to respondents Nos. 1 to 4: Since the petitioner was not inclined to this respondents Nos. 1 to 4 filed a suit for accounting and recovery of mesne profits under section 77 (3) of the Tenancy Act, claiming to be co. Sharera -in land allotted to the petitioner in village Khokerkey. This suit was dismissed on the 6th of February, 1964 by the .Revenue Court holding that the respondents were not co-sharers in the area. This decree was maintained in -appeal by the Collector but was reversed in revision by the Commissioner (vide Annexure `N'). The Commissioner held the respondent entitled to 3 share in the area allotted in the name of the petitioner in village Khokberkey and remanded the case of the Assistant Collector for decision on the question. On a revision petition filed by the petitioner the Board of Revenue agreed with the order of the Commissioner but he found the respondents entitled to 1/5th share only in the above land (vide order Annexure `P'). A review petition was filed by Dr. Abdul Rehman's petitioner against this order, since he had not put in appearance at the time of disposal of the revision petition, but the same was dismissed by order (Annexure 'R') dated 8th June, 1968.
9. The learned counsel for the petitioner urged that the Revenue Au--thorities had passed an order against the petitioner on the assumption that the right holder namely Imam Din had died after allotment and since this assumption was incorrect, the order of the Additional Commissioner and Board of Revenue should be quashed as having been passed without lawful authority.
10. This may be so but it will rot affect the impugned judgments if they are otherwise maintainable on merits. The learned counsel, therefore argue that since the allotment to the, petitioner had been made only for the area equivalent to 532 units which is less than his own entitlement amounting to 607 units, the respondents cannot be deemed to be co--sharers in it. He elaborated this argument with reference to paras. 67, 67-A and 67-B of the Rahabilitation and Settlement Scheme which are as follows:- I 'Cases relating to the succession to deceased right-holders from the prescribed territory will be decided expeditiously by the Assistant Rehabilitation Commissioner who will pass order on the mutation of succession in the form (Appendix VI) prescribed for the purpose and deliver possession immediately thereafter to the persons concerned.
(2) In case where the question of inheritance is involved and the inheritors live in different districts, the entire land of deceased right-- holders will be verified against the claim of one successor only.
Subse--quent claims received by the Central Record Office from other successors if any, shall be returned to the claimants concerned with a note indicating particulars of the certificate wherein the land in question has been verified and they should be advised to have their shares settled at the place to which the original claim has been despatched. After mutation has been decided at one place, the other successors shall be at liberty to transfer if otherwise permissible their respective units to other places where they have settled.
(2-A) In order to enable the Officer on Special Duty (Central Record Office) to check the previous irregularities, alphabetical list in regard to cases in which mutations of inheritance of deceased right-holders of the prescribed territory have been decided and the heirs have received allot-- ments in consequence thereof shall be submitted in the attached pro--forma. These lists shall be prepared for each heir and when completed will be consolidated for each district and then submitted to the officer on Special Duty (Central Record Office) through the Commissioners of the respective divisions.
(3) The Rehabilitation Authority will not charge any fee for the cases of inheritance for which form has been prescribed above but subsequent mutations of inheritance will be entered in the regular mutation register as this would involve a change in the entries of the revenue records
(4) An alphabetical list in ,the form prescribed in Appendix XXIX should be prepared in each Tehsil.
Taluka for each heir of the deceased refugee right-holder who has received an allotment as a result of such mutation. These lists when completed should be consolidated in the district headquarters and then submitted to the Officer on Special Duty, Central Record Office, attached to the Board of Revenue, West Pakistan, through the Commissioners of the respective divisions.
67-A. The decision in all inheritance cases in which the direct des--cendants of a claimant who could be specified are missing should be treated as provisional till confirmation and copies of all such mutations should be sent to the Officer on Special Duty, Central Record Office, Lahore, for necessary action.
67-B. The rights of the deceased right-holders should be conferred upon their successors after proper enquiry and if and when allotments are made to the successors they should receive land only to the extent of their respective shares in the inheritance."
11. He urged that in case of refugee-right-holder, the allotment is to be made after the attestation of mutation in the name of each indivi--dual successor. He further referred to para. 67-B. He made reference to several authorities in order to interpret these paras but in view of an authority which was with extreme fairness placed by the learned counsel for the respondents before me, it is not necessary to refer to those authorities.
12. The authority referred to by the learned counsel for the respon--dents and in which paras. 67-B have been interpreted is reported in Mst. Khurshid Begum v. Settlement Commissioner (Land), Sargodha and others (1973 SCMR 16). In that case a widow who held land under custom had migrated to Pakistan and had died before any allotment could be made to her. After her death, the mutation of inheritance was sanctioned. Her entitlement was worked out as 2,064 P.
1. Units and Mst. Khurshid Begum appellant before the Supreme Court was held entitled to 1,132 P. I. Units. She was given an allotment of 309 P. I. Units in Chak No. 294/G. B. On the 29th of February, 1956. The mutation was thereafter reviewed and some other persons were also included in it. The appellant however, secured allotments of a total 1,576 P.
1. Units. Two of the respondents applied under section 10 for cancellation of the allotment on the ground that it was obtained in excess by fraud and misrepresenta--tion. The Deputy Settlement Commissioner found that there was an excess of only 237 units which he ordered to be given to the informers. An appeal was filed by her on the ground that the excess area was pur--chased by her and for this reason the appeal was accepted.
One of the informers filed a revision petition which was allowed by the Settlement Commissioner.
He was of the view that the right-holder in the case was in fact Mst. Rashidan and not Khurshid Begum appellant. The proper procedure that should have therefore been followed was to make the allotment first in the name of the deceased Mst. Rashidan and then to substitute all her heirs in her place. Since this had not been .Done, the whole procedure was wrong and the allotment of "all the successors to her property had to be shown, according to their respective shares, under the name of Mst. Rashidan in column No. 2 of Register RL. 11" and no mutation of succession could be entered or sanctioned before the claim of Mst. Rashidan had been satisfied in toto. The order was challenged before the High Court by a writ petition which was. However, dismissed in limine. An appeal against this order was filed before the Supreme Court by Mst. Khurshid Begum. Their Lordships disagreed with the Settlement Commissioner on account of the language of paras. 67 and 67-B of Rehabilitation and Settlement Scheme. It was held that "the Rehabilita--tion scheme does not contemplate an allotment in favour of a deceased right-holder. The allotment is in the nature of a grant under which obligations are imposed on the allottee to appear before the Rehabilita--tion Authority, accept the allotments and affix his thumb impression on Register RL. II. It is obvious that a dead person cannot do these things as required by paragraph 68 of .The Scheme.
Paragraph 67-B of the Scheme also clearly contemplates that allotments are to be made to the successors, for, it provides that they should not exceed the extent of their respective shares."
13. In view of this authority it is not necessary to consider the arguments of the learned counsel for the petitioner further, since this is an authority in support of the proposition which was urged by him. This does not, however, solve the problem. In the present case the mutation was attested in the name of the petitioner and his brother alone. It appears clear that they concealed the fact that Mst. Nawab Begum had several heirs and that she bad died after the death of her father. Even if it had been established that she had pre-deceased her father it would hardly make any difference in view of para. 46 of the scheme under which her lineal descendants would have a right to the inheritance of Imam Din. The mutation copy of which is Annexure 'A' appears to have been attested in favour of the two sons of Imam Din, since it does not appear to have been brought to the notice of the attesting authority that Nawab Begum had left sons and a daughter. This mistake was corrected after several years on the 25th February, 1962 when the mutation was re-attested vide copy of re-attested order Annexure `C'.
Before this re-attestation the petitioner was claiming entitlement to the extent of 758 units and he had also secured allotment to that extent on Khatas Nos. 87 and 177/87. The area in Khata No. 177/87 was no doubt later on cancelled, but the cancellation was not for the reason of any reduction in the entitlement of the petitioner by re-attestation of the" mutation. It was cancelled because the area allotted to the petitioner was not allotable. It was admitted by the petitioner that the entitlement of his brother is being proportionately shared by respondents Nos. 1 to 4 If the area allotted to the petitioner in Khata No. 177 had not been cancelled, he could not have raised the present objection. The circum--stances will not therefore, change in his favour on account of the cancel--lation of allotment for reason other than re-attestation of mutation. He cannot be allowed to take advantage of his concealment that Mst. Nawab Begum was also her father's heir.
14. In view of this I hold that the orders of the learned Additional Commissioner and the Board of Revenue have been passed with lawful authority and dismiss the writ petition with costs.