1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through leave of this Court is directed against order, dated 1-11-1974 of the Lahore High Court ; whereby a Constitutional petition arising out of Land Reform case was dismissed in limine.
2. ' Respondent No, 2 being owner of large areas of agricultural land in the Districts of Multan and Bahawalpur and elsewhere filed declaration under M. L. R. 64 of 1959. He it is stated retained land equivalent to 36,000 P. I. Units to himself in addition to gifts of land equivalent to 18,000 P. I. Units made by him in favour of different persons including his heirs. He is stated to have surrendered the remaining area owned by him which included the 196 Kanals 14 Marlas of land regarding which the appellants' claimed to be the cultivating tenants. It is further asserted by them that under the Sales Scheme they having the first option to purchase the said land paid Rs, 5,062 and consequentially a mutation was sanctioned in their favour on 25-4-1962.
3. ' According to the learned counsel the respondent No, 2 moved D. L. C. Rahimyar Khan to allow him to retain some land as an orchard under clause 9(e) of the Regulation in addition to 36,000 units.
4. This application was rejected an a legal ground. His appeal was dismissed as time-barred and his revision also failed. Learned counsel further explained that notwithstanding the aforementioned failures of respondent No, 2 regarding the orchard he initiated fresh proceedings before another D.
5. L. C. Who without impleading the appellants allowed him to retain the land claimed by respondent No, 2 as orchard by order, dated 17-11-1965. The revision filed by the appellants was dismissed on 27-5-1967. They then filed Writ Petition No, 977 of 1967 against the said orders which was allowed only on the legal question of the respondent's rights regarding 18,000 P. I. Units under paragraph 9(e) and ( f ) of the Regulation .In addition to initial entitlement of 36,000 P. I. Units. And the case was remanded "to examine as to how much is the excess over and above 18,000 P. I. Units and then to decide the question of taking away of the excess in such manner as the law may warrant." After the remand the matter came up before the Additional Chief Land Commissioner who vide his order, dated 22nd October, 1974 repelled the appellants' argument that the right to retain the orchard was denied by the High Court to respondent No, 2, However, with regard to the excess units it was observed as follows :- "Since then the declarant has also been allowed 694 P. I. Units under the orchard.- He has therefore exceeded his right to gift 694 P. I. Units which he is now required to surrender additionally."
6. ' Before the question of surrender of 694 P. I. Units could be taken up by the officers concerned the appellants it is stated by the learned counsel again moved the High Court in its Constitutional jurisdiction and obtained a stay order with regard to the further processing of the case. This time it was through Writ Petition No, 211 of 1974. It was dismissed in limine. On 1-11-1974 through the impugned order by one of the two learned Judges who had decided the earlier Constitutional Petition No, 977 of 1967. The order which is short one, reads as follows :- "This case came earlier also to this Court in the form of Writ Petition No, 977 of 1967, the judgment whereof is reported in PLD 1971 Lah.
879. At that time, this Court allowed Maulvi Nizamud Din Haider who was respondent No, 3 in that case (and is now respondent No, 2 in the present writ petition) to retain the area of orchard which had been allowed to him by the Land Reform authorities at that time. The case in other respects was remanded. In the remand proceedings, the present petitioner again tried to challenge the orders of the Land Reforms Authorities whereby the area of orchard had been allowed to Maulvi Nizam Din Haider. The Land Reforms have held that since the orchard had already been allowed to be retained by Maulvi Nizamud Din Haider by the High Court in Writ Petition No, 977/67 and the proceedings before them were only in the form of a remand on certain other limited points, therefore, they could not re-open the question of the retenties of the orchards. The view taken by the Land Reforms authorities in quite consonance with the judgment delivered in Muhammad Yar and 2 others v. Chief Land Commissioner, West Pakistan, Lahore and 2 others PLD 1971 Lah. 879 in the earlier round of litigation. The Land Reforms authorities cannot, therefore, be said to have acted without lawful authority in any manner in this respect. The writ petition for these reasons has no merit and is dismissed in limine."
7. Leave to appeal was granted to examine the argument raised by the learned counsel for the petitioner to the effect that "respondent No, 2 having failed to indicate the existence of any orchard in the forms L.C.-I and L.C.-II filed by him could not have re-opened the matter particularly after the sale of the land in dispute in favour of the petitioners and having failed in the first round of litigation before the Land Commission Authorities for the avoidance of sale in favour of the petitioners."
8. ' Unfortunately the concluding portion of the unchallenged judgment of the High Court, dated 2-2- 1971 by virtue of which the case was remanded, was not brought to the notice of this Court at the leave granting stage. It reads as follows :- "In the face of that situation, we are thus left with no option but to declare (which we hereby do) the order of the learned Chief Land Commissioner to be without lawful authority in so far as it purported to allot an area of more than 18000 produce index units under para. 9(e) and (f) of the aforesaid Regulation. The declaration granted is only with regard to the excess area and is not intended to disallow the orchard, which has been permitted to be retained by the learned Chief Land Commissioner. The writ petition is partially accepted the case is remanded to the learned Chief Land Commissioner to examine as to how much is the excess over and above 18,000 produce index units and then decide the question of taking away of that excess in such manner as the law may warrant ' On or part, as indicated above, we have not disallowed the retention of the orchard, since this order is based mostly on the consent of the parties, there shall be no order as to costs."
9. When faced with the aforenoticed position regarding the final determination of the right of the respondent to retain the orchard in his favour and that too as it appeared, "mostly on the consent of the parties" the learned B counsel for the appellants was unable to press this appeal on the ground for the examination of which leave to appeal was granted. That being so it is not necessary to examine in this appeal the question as to how the remand order passed by the High Court on 2- 2-1971 needed to be observed in so far as the excess area or surrender thereof is concerned.
10. ' This appeal thus fails and is accordingly dismissed with costs.