' Facts in short, necessary for the disposal of the present writ petition, are that agricultural land measuring 120 Kanals was mortgaged by one Nazar Hussain in favour of Jalal Din etc. on 20-4-1955 to secure repayment of a sum of Rs.950. Since period of 20 years had expired since the date of mortgage, Mst. Razia Bibi claiming to be wife of Nazar Hussain and his minor son Ashiq Hussain presented a petition under section 10 of the Redemption and Restitution of Morgaged Lands Act, 1964 before Assistant Commissioner, Shakargarh, seeking restitution of the land free of any compensation. Notices were issued by the learned Assistant Commissioner to the mortgagees. On service, they appeared before the Court' and instead of filing a proper written statement, presented a petition objecting to the locus standi of Mst. Razia Bibi and Ashiq Hussain to present a petition for restitution of mortgaged land. Learned Assistant Commissioner without framing any issue or recording evidence in support of the objection raised, vicl,e order dated 20-7-1980, held in favour of the petitioners before him and observed that they had a right/locus standi to seek restitution. This order was maintained by the learned Additional Commissioner on 26-3-1984 and learned Member, Board of Revenue on 18-6-1984. The three orders passed by the Revenue Authorities under the provisions of Redemption and Restitution of Mortgaged Lands Act, have been assailed in constitutional jurisdiction by Jalal Din and Jamal Din with prayer that the orders be declared to have been passed without lawful authority. Writ petition was admitted to examine the contention as to whether the Assistant Commissioner in the absence of any evidence, could have found in favour of Mst. Razia Bibi and Ashiq Hussain minor.
2. I have heard learned counsel for the parties and examined the available record. Learned counsel for the petitioners has contended that the learned Assistant Commissioner, Shakargarh who was seized of this civil dispute relating to the restitution/redemption of the mortgaged land could not decide about the locus standi of the petitioners before him in the absence of evidence showing that Nazar Hussain, the original mortgagor had expired and that these two persons were his successors in law because it is only the mortgagor or his successor in law who is entitled to claim restitution/redemption of the mortgaged land. Learned counsel contended that a decision in the absence of necessary evidence holding that the petitioners before him were entitled and possessed with locus standi to present a petition for restitution, was in derogation of the law applicable to such proceedings. In fact the writ petitioners who were respondents before him were condemned unheard inasmuch as they have not been afforded a reasonable opportunity of leading evidence in support of their objection. Learned counsel for the respondents, on the other hand, supported the order passed by the Revenue Authorities. He submitted that it was the case of the petitioners themselves that Nazar Hussain has not been heard of for sufficiently long time which according to learned counsel clothed Mst. Razia Bibi and her son with right to seek redemption/restitution of the land. He submitted that the main petition is still sub judice before the Assistant Commissioner and the writ petitioners on one pretext or the other are delaying the proceedings.
' In accordance with the provisions of the Act and the West Pakistan Redemption and Restitution of Mortgaged Lands Rules, 1969, after a petition has been presented before the Collector seeking redemption/resti tution of the mortgaged land, the notice has to be issued to the opposite party.
Thereafter, in case of service, the mortgagees are entitled to present their written statement of their defence. After the written statement has been filed, the Collector has to hold an inquiry into the locus standi of the petitioners before him and further whether they are entitled to redemption/restitution of the mortgaged land. In the case under consideration, it seems no written statement/defence has so fart been filed. Only an application objecting to the locus standi of the petitioners was placed before the Collector. Whatever may be the situation the learned Collector who was in seizen of the dispute was bound to afford an opportunity to the writ petitioners to substantiate their objections in regard to locus standi of the petitioners. In this view of the matter the least that was required of the Collector was that he should have after calling for the written statement and if one was presented, framed issues, recorded evidence and then given a decision on all the issues arising for decision before him. The objection, therefore, has not been rightly and correctly disposed of. Same error has been committed by the learned Additional Commissioner and learned Member, Board of Revenue when they maintained the basic order dated 20-7-1980 passed by the learned Assistant Commissioner, Shakargarh. Main petition seeking restitution of mortgaged land is still awaiting decision before the learned Assistant Commissioner. Shakargarh. I find that in the circumstances of the present case the contentions raised by learned counsel for writ petitioners have legal force. Objection regarding locus standi which went to the root of the whole matter has been disposed of by learned Assistant Commissioner without raising an issue thereon or affording an opportunity to the mortgagees to lead evidence in support thereof. The proper course was to raise issues rising- for decision between the parties and then after recording evidence, decide the whole controversy. The manner in which the question relating to locus standi has been dealt with, is open to serious legal exception, particularly when no evidence was allowed to be produced in support thereof. In this view of the matter writ petition is allowed, orders dated 20-7-1980, 26-3-1984 and 18-6-1984 passed by learned Assistant Commissioner, Shakargarh, learned Additional Commissioner and learned Member, Board of Revenue are set aside and declared to have been passed without lawful authority. Learned Assistant Commissioner in view of the above declaration is directed to call for written statement from the mortgagees, then decide the matter in dispute after framing necessary issues and affording opportunity of producing evidence to the parties. Parties are directed to enter appearance before the learned Assistant Commissioner on 29-11-1984. Learned Assistant Commissioner will endeavour to decide the matter in dispute within a period of two months from 29-11-1984. No orders as to costs.