' This writ petition must fail in so far as it pertains to Khasra No, 515 as well as respondents Nos. 6 to
10. My reasons for holding this are as under :- ' These proceedings before me arise out of an appeal filed by the present petitioners before a learned Settlement Commissioner. A perusal of the memorandum of appeal (Annexure 'D') would show that the grievance an relief claimed therein was against the order of the Additional Commissioner (Revenue), Lahore with the powers of the Settlement Commissioner, date 23rd February, 1973 confirming the allotment of three Khasra Nos. 118, 120 and 122 allegedly in favour of the respondents. This appeal was dismissed on 9th November, 1973. Neither the heirs of Nawab Iftikhar Hussar Mamdot were a party to these proceedings nor the said Khasra numbeR which stands permanently confirmed in their favour was the subject-matte of dispute. I know of no principle where through the contrivance of filinG a writ petition, a petitioner can enlarge the scope of subject-matter of dispute which was before the lower forum. It appears to me that adding o this grievance regarding Khasra No, 515 is an afterthought encouraged by the fact that the petitioners' writ petition stood admitted.
' The other salutary principle governing the exercise of constitutional jurisdiction is that a petitioner will not be permitted to make out a new case altogether different from the one which was before the tribunal below.If that was not to be so, the exercise of power of judicial review would become illusory and the very purpose of it would stand defeated. Primarily what I am required to see in this case is the validity of the actions and orders of the respondent functionary. If the case is being made out or built before me altogether on a different plane factual or legal from the one which was presented before the Settlement functionary then I would in that respect be exercising that tribunal's original jurisdiction. That does not appear to me to be the true scope of constitutional jurisdiction. The writ petition, therefore, in so far as it relates to respondents Nos. 6 to 10 is liable to fail. There can be many other reasons which can be given to justify the same conclusion and order.
2. This is a classic case. It is patent on the face of the proceedings that the orders passed in appellate/revisional jurisdiction ought not to be of such a nature. There has been a misdirection.
Matters have been left undecided and undetermined and the functionary below has also not tried to arm himself objectively with true state of facts so as to justify a correct conclusion. All these factors taken together would justify a remand of the case for disposal in accordance with law and I propose doing so.
3. The brief facts of the case are that the petitioners filed an appeal/ revision against the order of a Settlement Commissioner, dated 23rd February, 1973 purporting to confirm Khasra Nos. 118,120 and 122 measuring 48 kanals 16 mar/as situated in Chung Khurd, Lahore in favour of respondents Nos. 2 and 3. This was taken up by another Settlement Commissioner. It is rather surprising for me to have learnt that a Settlement Commissioner in the Land side could make original allotment under any Scheme. I asked the learned counsel appearing in this case to cite me a single circular or provision of the Scheme whereunder any Settlement Commissioner had been authorised to make such allotment. The learned counsel for respondents No, 11 at this stage sought to introduce a new story by saying that the allotment had been made in favour of respondents Nos. 2 and 3 in pursuance to an appeal filed by them before the learned Settlement Commissioner. There is no written statement before me nor any material to justify such an inference. The question to be decided in this case will be whether the Settlement Commissioner had any jurisdiction or power under the law to make an allotment on the original side in favour of respondents Nos. 2 and 3.
4. The second surprising thing which has come to my notice is that the appeal/revision against the order of a Settlement Commissioner was being entertained by Malik Jehangir Khan another officer invested with the powers on the concurrent level. How this could be done under the statute. It is well-known that officers exercising powers on parallel level can never sit over judgment of their colleagues because there is no power of review. This learned officer without adverting to his own jurisdiction appears to have taken it for granted and passed the impugned order, dated 9th November, 1973. It is for this reason that the petitioners are also challenging the order dated 9th November, 1973 and 23rd February, 1973 directly by way of this writ petition.
5. There is another feature of the case which would require looking into and that is whether collusion between private parties and Settlement Authorities was at work and fraud was played on the compensation pool. In other words, it is to be examined whether allotment was made to genuine or fictitious persons. It is being strenuously contended by the learned Legal Adviser for the Settlement Department that the claim of respondents Nos. 2 and 3 was never received in Lahore.
Reliance is being placed on a certified copy of the written application dated 17th April, 1974 given by them to Sardar Hidayat Ullah, Settlement Commissioner, Lahore in Case No, 754/A (Lahore). In this application, it is alleged, the two respondents Nos. 2 and 3 have totally disclaimed any association or interest or concern with the allotment which is the subject-matter of dispute. According to their own application, their claim stood exhausted in the province of Sind and no part of their entitlement was available for being satisfied in Lahore or any other place. This would rather prima facie tend to show that these respondents are guilty of suppression of a material fact. These facts they mentioned in the Court of Sardar Hidayat Ullah Mokal but suppressed before Malik Jehangir Khan. It will be gone into by the learned notified officer whether the aforesaid application had been given by respondents Nos. 2 and 3 and further whether the claim of these respondents Nos. 2 and 3 stood exhausted in Sind as is alleged in that application or was it available at Lahore.
6. Similarly, the notified officer shall also address himself to the basic question whether the petitioners predecessors-in-interest were the temporary allottees of any land and if so could the petitioners be treated as temporary allottees and whether they have any entitlement in the land in dispute keeping in view the nature of the claim held by their predecessor ; whether the petitioners are in fact the legal heirs of Mehar Singh in whose favour the entitlement certificate was issued whereas the temporary allotment is alleged to have been made in the name of Sobhan Khan son of Mohar Khan and not Mehar Singh, and whether the claim of Mehar Singh son of Bhura is genuine and is pending satisfaction. For this purpose, the notified officer shall summon the Naib-Tehsildar, Central Record Office to appear with the original record and also make such further inquiry as may be necessary to discover the entitlement of all the parties involved in this case. In case he finds that the allotment order dated 23rd February, 1973 was either bogus, fraudulent or incompetently made he shall pass orders that the same be ignored.
7. In so far as Abdul Latif respondent No, 11 is concerned, a serious objection is being taken to his presence before this Court on the basis that he is not a bona fide purchaser for consideration but according to Ch. Qadir Bakhsh's own showing his client purchased this land from respondents Nos.
2 and 3 in the year 1976 during the pendency of this writ petition the High Court and status quo also having been issued. It is contended that his case would not be that of a bona fide purchaser but that of a person who undertook the risk of acquiring the property subject to the doctrine of lis pendens. Therefore, he has, according to the learned counsel for the petitioners, no right to be heard stricto senso. However, I think no harm will be done if respondent No, 11 is also allowed to participate in the proceedings and is heard. The notified officer shall also examine the genuineness of all sale transactions being claimed before him by examining the vendor as well as the vendees and applying his mind to all the facts and circumstances of the case. A certified copy of the application dated 17th April, 1974 which was issued on 10th December, 1974 from the Office of Chief Settlement Commissioner, West Pakistan, Lahore should be kept in sealed cover in safe custody and a copy of that be issued to the learned counsel for the petitioners Raja Abdul Razzaq on his applying for the same.
8. Other respondents have not put in appearance despite notice and therefore, the order against them is ex parte.
9.
9. The writ petition is accepted, the impugned orders are set aside and the case remanded to a notified officer/Member, Board of Revenue (Settlement) for disposal in accordance with law in the light of the observations made in this judgment. In the circumstances of the case there shall be no order as to costs.