' ABDUL SHAKURUL SALAM, J.-- Dispute relates to land measuring 42 Kanals 14 Marlas bearing Khasras Nos. 2094 to 2096, 3177/2097 and 3178/2098, situated in village Sadev, tehsil Chiniot, District Jhang. It was alongwith other areas resumed from one Muhammad Tahir Shah under the Land Reforms Regulation No,
64. The petitioner, Karam, being an old tenant, was allowed to purchase from the resumed land an area of 170 Kanals and 4 Marlas at Khata No,68 of L.C. XI under what is known as 'Sale Scheme' on 22-2-1961. Included in the said area were the disputed Khasra Nos.
Abovementioned. There was another tenant of the landlord, namely, Maqsud, respondent 2 who was given an area of 8 Kanals and 8 Marlas under the 'Sale Scheme' on the same date viz. 22-2- 1961 vide Khata No,93. Since the area with Maqsud was small, the latter applied for more area to upgrade his holding under the 'Upgrading Scheme'. Consequently, more area of 120 Kanals and 7 Marlas was confirmed in his name at Khata No,41 on 28-2-1961, under the Upgrading Scheme. This land contained the aforementioned disputed Khasra numbeRs, Later on, the landlord exercised fresh choice as a result of which he decided to retain the area of 8 Kanals and 18 Marlas which had been confirmed in favour of Maqsud at Khata No,93 under the Sale Scheme. The choice of the landlord was accepted with the result that the area which had been given to Maqsud was taken away from him. When there was left no land with Maqsud under the Sale Scheme, the question of 'upgrading' his holding did not arise with the result that the remaining area of 120 Kanals and 7 Marlas which had been given to him under the 'Upgrading Scheme' was also taken away from him.
2. The area which had been taken away from Maqsud was then allotted on 28-2-1963, to two persons namely, Ahmad son of Walia (nephew of the petitioner, Karam) and Mahmood son of Waryam. Maqsud challenged the allotment in favour of the latter two and succeeded before the relevant authority. Ahmad and Mahmood challenged this order by means of Writ Petition No, 59 of 1969. It was dismissed in liming on 17-1-1969. Then, the petitioner came forward and applied to the Deputy Land Commissioner saying that the aforementioned has sera numbers had -earlier been allotted to him on 22-2-1961 and then allotted to Maqsud on 28-2-1961, therefore,- -he was entitled to the same. The plea was- accepted on 5-8-1970. However; on the revision petition of respondent.
Maqsud, the learned Chief Land Commissioner came to the conclusion that Karam having never come forward when the litigation was being carried on between Maqsud on the one hand and 12y Ahmad and Mahmood on the other, in spite of the fact that Ahmad was his nephew and living with him, he had no right to the land. This is vide order dated 4-2-1971. Karam filed a review application which was dismissed on the 4th March, 1971. He then filed Writ Petition No, 403 of 1971 which was dismissed for non-prosecution on 23-9-1975. Application for restoration was dismissed on 15-10- 1975. He has filed the present Constitutional petition.
3. The learned counsel for the petitioner has vehemently contended that the land having been sold in favour of the petitioner earlier and then in favour of respondent 2, the petitioner was entitled to retain the same. As regards the maintainability of the present second writ petition which question was left open by the learned Division Bench at the time of admission of the present petition on 17- 12-1975, the learned counsel referred to the judgment reported as Atta Muhammad v. Rehmat Ali PLD 1967 Lah. 372 which was quoted at the preliminary hearing.
4. The learned counsel for the contesting respondent 2 has submitted that the judgment relied upon by the learned counsel for the petitioner has been referred to by a learned Division Bench of Die High Court in a case reported as Mahboob-ur-Rehman v. Government of West Pakistan PLD 1968 Lah. 1085 and it was laid down therein that the first petition will be deemed as never filed. The second writ petition from the date of the impugned order suffered from Inches and the same was, therefore, dismissed. The learned counsel stated that the impugned order of the Chief Land Commissioner in the Case in hand is dated 4-3-1971 and this second writ petition was filed on 27- 10-1975, therefore, it suffers from inordinate delay of some four and a half years and is liable to be dismissed as held in the Division Bench judgment. On merits, the learned counsel for the respondent 2 submitted that the petitioner Karam had given up his right when the land in dispute was firstly allotted in favour of the answering respondent and he did not challenge the same. Also when the land was taken away from the answering respondent and given to Ahmad and Mahmood, the petitioner did not even then challenge the allotment in favour of the aforesaid two persons. Therefore, the petitioner has lost his right thrice over by his own conduct.
5. We have heard the learned counsel for the parties at length and perused the record. From the statement of facts made above it is although clear that the land in dispute was allotted to the petitioner first but when it was subsequently allotted to Maqsud, he did not challenge the allotment in favour of the latter. Then, when the land was taken away from Maqsud and given over to Ahmad and Mahmood, the petitioner did not, again, challenge the subsequent allotment either. One of the subsequent allotted was his own nephew living in his own house. May be that was the reason that the petitioner did not challenge the subsequent allotment. But nevertheless that shows the conduct of the petitioner that he had given up his right to the land in dispute. Further, when the litigation was being carried on for a number of years from 1961 up to 1969 the petitioner did not come forward to challenge his deprivation of the land in question, nor, its allotment in favour of Maqsud in the first instance and secondly in favour of Ahmad and Mahmood. Even when the latter lost the game altogether, the petitioner did not proceed straight onwards but went by way of back door to the Deputy Land Commissioner asking for an order that the land having been earlier allotted to the petitioner, the same be given to him. The Deputy Land Commissioner without taking note of the litigation allowed the application but the learned Chief Land Commissioner examined the matter and found that the petitioner was not entitled to the land because of his own conduct.
Lastly, the first writ petition having been dismissed for non-prosecution and the restoration application rejected, the present petition filed on 27-10-1975, challenging the last order of the Chief Land Commissioner dated 4-3-1971 is liable to be dismissed on the principle of -laches as enunciated by the learned Division Bench in the case quoted by the learned counsel for the respondent 2.
6. In view of what has been stated above, there is no merit, nor, force in this petition. It is accordingly dismissed with costs.