1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, in L. P. A. No. 125 of 1969, dated the 1st April 1969. By this judgment, the appeal was dismissed in limine.
2. One Khuda Bakhsh, who died on the 27th June 1956, was a refugee right-holder and was allotted land in Chak No. 251/EB, Tehsil Pakpattan, District Sahiwal. Khuda Bakhsh had three sons and one daughter, namely, Abdul, Fatta, Bin Yamin and Mst. Parsan. Abdul died in the lifetime of the deceased. The appellant is the son of Abdul, a pre-deceased son of Khuda Bakhsh. After the death of Khuda Bakhsh, mutation of inheri--tance was sanctioned by the Assistant Rehabilitation Commissioner on the 31st August 1956 and the appellant was also given a share. This order was maintained by the Deputy Settlement Commissioner and the appeal was dismissed on the 19th March 1960. This order was challenged in revision before the Addi--tional Settlement Commissioner, who, by order dated the 23rd February 1961, held that the question of succession to Khuda Bakhsh was to be decided in accordance with the principles of Shariyat Law and the appellant being a son of pre-deceased son of Khuda Bakhsh was not entitled to succeed him.
3. The appellant challenged this order in Writ Petition No. 172-R of 1962. The matter came up for hearing before a Single Judge of the West Pakistan High Court, Lahore, on the 19th June 1963. The appellant was absent. In his absence, the High Court considered the dispute between the parties on merits and came to the conclusion that the deceased Khuda Bakhsh was a confirmed right- holder and the property in dispute was to be inherited according to the Muslim Personal Law. In this connec--petition Muhammad Iqbal, J. Observed as under :- "Khuda Bakhsh allottee in the present case, therefore, seized with certain rights and interests in the land allotted to him and confirmed in his favour which were inheritable and as the Scheme had no specific rule of succession in such cases it has taken to him was to be governed by the Muslim Personal (Shariyat) Application Act, 1948, and the Rehabilitation authorities, therefore, were correct in deciding the issue against the petitioner. The petition merited to be dismissed in default but as it cannot be succeeded on merits in this case, it is accordingly dismissed. There will be no order as to costs."
4. The petitioner subsequently came to know that Khuda Bakhsh had not paid the rehabilitation fee till his death in 1956. He, therefore, again moved the Settlement authority with the prayer that since Khuda Bakhsh had not paid the rehabilitation fee, he was not a confirmed allottee at the time of his death in 1956 and being still a refugee right-holder, his succession would be determined only in accordance with the provision of Para. 46 of the Rehabilitation Scheme and although he was the son of pre-deceased son he was entitled to succeed him according to the above said para. The Deputy Settlement Commissioner, by order dated the 17th June 1965, dismissed the appeal and observ--ed that "in view of the High Court's judgment, the appellant's contention cannot hold ground and this question cannot be re-opened in this Court. The appeal is also time barred for two years for which no reasonable cause has been adduced". The appellant challenged this order in revision which was dismissed by the Settlement Commissioner on the 29th September 1965.
5. Thereupon, he moved Writ Petition No. 702/R of 1965 on the 16th February 1966. The petition came up for hearing before Muhammad Iqbal, J. He observed in his order that a second writ petition was not competent and that the proper course for the petitioner was to file a review petition. When the learned Judge made this observation the appellant's counsel sought permission to withdraw the petition with a view to file a review petition, if so advised. Upon this, the learned Judge made the following order :- "I have no objection to the withdrawal of the writ petition. The petition is accordingly disposed of."
6. Thereafter, the appellant filed a Review Application No. 73 of 1966. The respondents resisted this application on the grounds :-
(a) That the review petition was not competent, and
(b) that even if it be assumed for the sake of argument that the review petition is comp.-tent, it is barred by limitation.
7. Muhammad Iqbal, J. Held that the review petition was competent but held the review petition to be barred by two days. On merits he held that the rehabilitation fee was paid in 1959 and Khuda Bakhsh was not a confirmed allottee. In this connection he observed as under :- "On facts, it is admitted by the learned counsel for the peti--tioner that the rehabilitation fee was paid on 1959 and Khuda Bakhsh as held in Abdul Rashid v. Pakistan and others PLD 1962 SC 42 was, therefore, not a confirmed allottee in 1959 when he died. Learned counsel for the respondents, however, contended that a person remains a refugee right-holder not till the allotment is made in his favour, and that since the allotment in favour of Khuda Bakhsh was made in 1952 although re-- habilitation fee had not been paid and the allotment was not finally confirmed in his favour till 1956 when he died, the succes--sion to the principles of Shariat Law and not in accordance with the principles laid down in paragraph 46 of the Scheme. The contention so raised is not warranted by the decision in Abbur Rashid v. Pakistan. It was unmistakeably held in that case that paragraph 46 ceases to apply only when the land, after the payment of the rehabilitation fee, is finally contirmed."
8. On this observation, he dismissed the review petition.
9. Leave was granted in this case to consider the question whether the review petition which was barred by two days, was a fit case for condonation of delay and whether the succession in the present case was governed by the Rehabilitation Scheme or by Muslim Personal Law.
10. Mr. S. M. Masud, learned counsel for the appellant, has contended that Khuda Bakhsh died in 1956 and rehabilitation fee was paid in 1959, as such Kliuda Bakhsh was only a right --holder and his succession was to be determined according to the view taken by this Court in the case of Abdur Rashid. He further contended that the delay in filing the review petition was only of two days. The appellant has been obtaining the copies of the various orders and, therefore, it was a fit case in which the delay should be condoned. On the other hand, Mr. G. A. Gondal, learned counsel for the respondents has contended that para. 22, Part I of Rehabilitation Scheme is repugnant to section 22 of the Rehabilitation Act. According to the learned counsel, the Rehabilitation authorities can recover rehabilitation fee in accordance with the rule of enforcing charge and that in the present case the rehabilitation fee was a charge on the property in dispute.
11. After hearing the learned counsel for the parties, we are satisfied that the contentions raised on behalf of the appellant are well founded. The property in dispute was allotted to Khuda Bakhsh in 1952. He died in 1956 and the rehabilitation fee was paid in 1959. It is, therefore, quite clear that Khuda Bakhsh was merely a right-holder at the tine of his death and he was not a confirmed allottee. In such circumstances, on his death, the inheritance will be governed by para. 46 of the Rehabili--tation Scheme as held by this Court in Abdur Rashid v. Pakistan and others. At page 57 of the Report, this Court observed as under :- "It thus appears that under this Scheme itself lands may be allotted to temporary allottees as well as non-allottees in accordance with the instructions contained therein after drawing up a programme, preparing a proposal notifying the same, hearing objections, if any, made to the said proposal and provisionally finalising the proposals. After the allotment has been made the allottee, if not already in possession, is "put into possession and then only after the Rehabilitation fees and other Government dues have been paid is the allotment confirmed in favour of the allottee. Until such an allotment in accordance with the Scheme, has been made in favour of 2 person, he is referred to in the Scheme as a 'right-holder With regard to succession to deceased right-holder it has been provided by Paragraph 67 of Chapter II, Part II, as follows :-
67. Cases relating to the succession to deceased right---holders from the prescribed territory will be decided expeditio--usly by the Revenue Officer who will pass orders on the mutation of succession in the form (Appendix VI) prescribed for the purpose and deliver the possession immediately there--after to the persons concerned. In cases where the question of inheritance of evacuee land is involved and the inheritors live in different districts, the necessary number of copies of ford haqiat will in future be prepared by the Central Record Room and supplied to the district offices concerned for distri--bution to all the claimants. In all such cases the mutation may be decided and entered in the district in which the claimants reside. Allotments made in pursuance of this deci--sion will be purely provisional and subject to subsequent a' changes, if necessitated by factual evidence. Copies of decisions in these mutations should be exchanged amongst the different districts and, if in any of these districts a discrepancy is found, the matter should be referred by the local officers to the Re--habilitation Commissioners (Lands) for a final decision, pending which the claimants should be allowed to retain the land allotted to them under different mutations. The Deputy Rehabilitation Commissioner (Lands) will not charge any fee in the cases of inheritance for which the form has been prescribed above but subsequent mutations of inheritance will be entered in the regular mutation register as this would involve a charge in the entries of the Revenue Records. (Reference Punjab Govern--ment Memo. No. 3705-R (L), dated the 2nd June 1951 and Punjab Government Memo. No. 8283-R(L), dated the 25th October, 1951).'
12. From an examination of these provisions of the Scheme it would appear that an allotment, although essentially a grant from the Government does, when it has once been confirmed create certain rights in the land allotted which the allottee may in accordance with Clause 14 of Chapter II, Part I of the Scheme transfer by sale, exchange, gift, will, mortgage or other private contract but even so the land continues to remain evacuee property throughout and has to be utilised only for purposes approved by the Rehabilitation Authorities, and may be resumed if the conditions of allotment are not fulfilled by the allottee. These conditions of allotment thus, in our opinion, are in the nature of restrictive covenants running with the land but subject to these covenants and the right of resumption or re-entry reserved under the Scheme the allottee, it appears to us, becomes clothed with all the other usual incidents of at least an occupancy tenant in the lands so allotted.
13. Thus he may subject to those conditions or covenants, deal with the same as any other such tenant would have been entitled and may even dispose of them or alienate them either by an instrument inter i4vos or by will. It is difficult, in the circumstance, to imagine how it can be said that the interest acquired by the allottee in the property is merely a persona' interest which cannot be inherited. In our view, having regard to the rights expressly conferred upon him by the Scheme itself an allottee, in whose favour an allotment has been confirmed acquires a right which is in every sense of the term a `red property' in its true juristic concept-an interest in land.
14. Nevertheless, since the allotment is expressly stated to be `grant' and such grants can be made by the grantor upon sue terms and conditions as may be specified by a person duly authorised in that behalf, namely, the Rehabilitation Commissioner, it would, in our view, have been open to the Rehabilitation Commissioner to lay down, if he so thought fit as a condition of the grant that if the property is not transferred by sale, exchange, gift or will, it would devolve in a particular manner which may well be inconsistent with the person law 'of the allottee or even the Muslim Law of succession but if the Scheme itself has not laid down any sup special rule of succession, we are equally of the opinion that when a confirmed allottee under the Scheme dies he dies vested with `real property' which is capable of being inherited and will be inherited by persons who would, accord--ing to the general law of the land governing inheritance from such a person, be entitled to inherit from him.
15. The contention of the learned counsel for the respondents that para. 22, Part I of Rehabilitation Scheme is repugnant to section 22 of the Rehabilitation Act has no force whatsoever. Para. 22 lays down that no allotment will be considered as finally B confirmed unless the Rehabilitation fee is paid. This is quite consistent to section 22 of the Pakistan Rehabilitation Act of 1956. Similarly, the contention that the Rehabilitation fee can be recovered as a charge and, therefore, its non- payment will not render the refugee right-holder as an unconfirmed allottee has also no force. We would, therefore, hold that the appellant was entitled to succeed to his grand-father in respect of the property in dispute.
16. It is not disputed that the review petition filed before the High Court was delayed only by two days.
17. The appellant is an illiterate person. He must have spent some time in obtaining the copies of the orders which were to be filed in the High Court. He has been bona fide pursuing his remedy before other authori--ties and, therefore, he was entitled to claim deduction of this period under section 14 of the Limitation Act. I would, there--fore, condone the delay of two days, and hold that the review petition should not have been dismissed for this reason.
18. After carefully considering the points raised by the parties, I am satisfied that the appellant is entitled to succeed to his grand-father in respect of the property in dispute. I would, therefore, allow the appeal but leave the parties to bear their own costs.