This order will dispose of W.P.No.125/R/75, W.P.418/R/75 and W.P.No.1271/R/75 as well as W.P.No.252/R/75 and W.P.No.274/R/75.
2. Dispute relates to the inheritance of Mst. Noor Bano, deceased right-holder from East Punjab. Pedigree-table will facilitate under standing: Ahmed Khan Mst.Fazal Nisa Jalal Din Nizam Din son son Meharban Din Mst.Noor Bano (widow)
3. A mutation of inheritance bearing No.1 was sanctioned in village Bheela, Tehsil Pakpattan, District Sahiwal on 5-3-1955, giving 1/4th to the heirs of Mst. Fazal Nisa, Ahmad Din etc., 1/2 to Meharban Din and 1/4th to / oor Hussain, brother of Mst. Noor Bano. In respect of the same inheritance, a mutation No.1 in village Ghulab Ali, Tehsil Bahawalnagar was sanctioned on 7-6-1959, giving 1/2 to the heirs of Mst. Fazal Nisa, 1/4th to Meharban Din and 1/4th to Noor Hassan. Still another Mutation No.10 was sanctioned in village Sardar Shah, Tehsil Bahawalnagar on 2-4-1961 but the charges were the same as in the previous mutation. (Inheritance was apparently deemed to be governed by paras. .46 and 46-A of the Rehabilitation and Settlement Scheme whereunder a widow is taken as limited owner and gets 1/4th if childless, and the rest goes to the sharers or residuaries under the Islamic Law.
3. Heirs of Mst. Fazal Nisa challenged the first Mutation in village Bheela by means of an appeal. It is stated by the learned counsel for Noor Hassan that against the Mutation No.1, of village Ghulab All ( and probably also against Mutation No.10 of village Sardar Shah), his client filed an appeal which was, with the consent of the parties, consigned to record in view of the same-dispute being subject-matter of an appeal against Mutation No.1 of village Bheela, Tehsil Pakpattan. Appeal of the heirs of Mst. Fazal Nisa against Mutation No.1 in village Bheela was rejected on 5-11-1969. Noor Hassan challenged this appellate order by means of a revision petition which was allowed and case remanded on 7-8-70. On remand, Mutation No.7, was sanctioned on. 15-10-1970 by the Assistant Rehabilitation Commissioner (L) giving the entire estate to Noor Hassan brother of the deceased Mst. Noor Banos Taking her to be "full owner."( Such a view prevailed once but was found incorrect by the learned Supreme Court holding the aforesaid paras. 46 and 46-A governed the inheritance).
4. Heirs of Mst. Fazal Nisa challenged the order of ARC(L) dated 4-15-10-70 by means of an appeal which was rejected by Mr.Hassan Abbas Naqvi D.R.C(L) on 30-11-72. They filed a revision petition stated to be some time in December, 1972, before the Settlement Commissioner (L) which has been consigned to record on 17-6-1977 in view of the following proceedings.
5. In proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, a Settlement Commissioner (L) exercising powers of the Chief Settlement Commissioner relying upon the appellate order of Mr.Hassan Abbas Naqvi, Deputy Rehabilitation Commissioner (L) dated 30-11-1972, holding Noor Hassan as the sole heir, excluded others and set aside the allotments or mutations of sale from the other heirs. The afore-titled Constitutional petitions (excepting W.P.418- R/75) have been filed by the petitioners claiming to be the vendees from one of the excluded i.e. Meharban Din. The first three petitions viz. W.P.125-R/75, W.P.418/R/75 and W.P.1271/R/75 were filed against the order of the Settlement Commissioner/Chief Settlement Commissioner dated 28-6-74 in 1975. The last two petitions i.e. W.P.252/R/81 and W.P.274/ R/81 have been filed in the year 1981 and the explanation of the delay is that the vendees in these petitions came to know to the impugned order when one Muhammad Amin claimed to be the attorney of Noor Hassan. The aforesaid facts have been dictated in the presence of the learned counsel for the parties who do not dispute the same.
W.P.125-R/75.
6. The dispute relates to land measuring 45 Kanals 2 Marlas situated in village Melowala, Tehsil Gujranwala. This was stated to have been allotted to Meharban Din on 20-10-1966 and sold to the petitioners vide Mutation No.1377 sanctioned on 10-6-67.
7. The contention of the learned counsel for the petitioners is that the order of the Settlement Commissioner/Chief Settlement Commissioner dated 28-6-1974 impugned in this petition has been passed extinguishing the title of their predecessor-in-interest, Meharban Din without hearing them. Learned counsel appearing for Noor Hassan contended that the petitioners had applied to be impleaded as a party before the Officer and their application was entertained and they were informed about the next date of hearing. They participated in the proceedings. When the order had been passed adverse to them, they have challenged the order by wrongly saying that the petitioners were not heard.
W.P.No.418-R/75.
8. This petition has been filed by the heirs of Mst.Fazal Nisa aforementioned who had been given in the first mutation 1/4th and in the next two mutations 1/2 of the estate of Mst. Noor Bano. They have been excluded from inheritance under the impugned order of the Settlement Commissioner/Chief Settlement Commissioner dated 28-6-1974 holding that Noor Hassan was the sole heir of the deceased right-holder. On 6-12-82 when this petition came up for hearing it was stated that the petitioners after having obtained the status quo order had sold the land and therefore the petition was liable to be dismissed. Learned counsel for the petitioners said that he had no instructions about the same. When it came up for hearing on 30-1-1983 he asked for adjournment to seek instructions. The petition was sent, alongwith the connected matters, to Multan but on the orders of the learned Chief Justice, along with others has come back. When it was taken up on 20-10-1984, learned counsel for the petitioners stated that he had no instructions about the same. Further, the case had been sent to Multan Registry and the brief was therefore taken away from him. Since the return of the case, the clients have not got in touch with him and he has no instructions. It was ordered to be put up with the connected cases. Muhammad Akram petitioner No.6 is present in person. No learned counsel is appearing for him.
W.P.No.1271-R/75.
9. The case of the petitioner is the same as that of the petitioners in W.P.125-R/75.
W.P.Nos.252-R/B1 & 274-R/81.
10. Dispute relates to the land situated in village Dheengan, Tehsil Ferozewala, District Sheikhupura allotted to Meharban Din on 22-1-1963 which is stated to have been purchased by the petitioners from his earlier vendees on 11-3-1971 vide Mutations Nos. 42 and 43. The conten tion of the learned counsel for the petitioners is that in the proceedings before the Settlement Commissioner/Chief Settlement Commissioner the petitioners participated but the judgment was reserved on 11-6-73. It was announced on 28-6-74 in the absence of the petitioners and they were not informed of the order. They only came to know of it when one Muhammad Amin posing himself as a general attorney of Noor Hassan came to the village. In reply, the contention of the learned counsel appearing for the Settlement Department is that the petition suffers from inordinate delay and lathes of seven years. The allotment in favour of Meharban Din was void altogether and therefore the petitioners have no right. Learned counsel appearing for Noor Hassan has submitted that the petitioners in W.P.No.252-R/81 have sold the entire land vide Mutations Nos. 178, 179, 180, 181 and 182 vide registered sale-deed dated 18-12-78. Therefore, they are not aggrieved persons and consequently cannot maintain the Constitutional petition. Further, that this fact of sale has been suppressed by the petitioner in the petition. He relies on Abdur Rashid v. Pakistan and others 1969 SCM R 141, Raja Muhammad Ashraf v. Director Military Lands and others 1982 SCMR 213 and Muhammad Yaqoob and another v. Deputy Settlement Commissioner and 7 others 1984 CLC 2009 It is also contended that the petitioners in W.P.No.274-R/81 claim to be purchasers of land through registered sale-deed dated 5-2-80 from Meharban Din whereas Meharban Din had died on 20-4-
76. In reply, the learned counsel for the petitioners has stated that the petitioners were not aware of the death of Meharban Din and that, in any case the land purchased by the petitioners vide Mutations Nos.42 and 43 wan un 11-3-1971.
11. From the statement of facts made above and perusal of the order of the Settlement Commissioner/Chief Settlement Commissioner dated 28-6-1974, it will be seen that Noor Hassan has been held as the sole legal heir of Mst. Noor Bano on the basis of a decision of Mr. Hassan Abbas Naqvi, Deputy Settlement Commissioner (Land) Pakpattan dated 30-11-72. In respect of the estate of the deceased right-holder Mst. Noor Bano, mutations have been sanctioned at three different places as mentioned above. The dispute in respect of Mutation No.1 of village Bheela in which the aforesaid order of Mr.Hassan Abbas Naqvi dated 30-11-72 was passed had been taken up in a revision petition by the heirs of Mst. Fazal Nisa which has been consigned to record by the learned Settlement Commissioner (L) Multan in view of the impugned order of the Settlement Commissioner/Chief Settlement Commissioner dated 28-6-74 and the writ petitions pending against the said order in the High Court. The appeals against the orders in mutation of inheritance in the other two villages i.e. Ghulam All and Sardar Shah had been consigned to record in view of the pendency of the dispute before the D.R.C.(L). The net result is that inheritance of deceased right-holder about which mutations were sanctioned and were either under appeal or revision, has come to be concluded in proceedings under sections 10 and 11 of the aforesaid Act of 1958 by the Settlement Commissioner/Chief Settlement Commissioner on 28-6-74 vide the impugned' order.
12. There are two points to be taken note of. Firstly, the order of the Settlement Commissioner/Chief Settlement Commissioner dated 28-6-74 impugned in these proceedings proceeds on the basis of the order of Mr.Hassan Abbas Naqvi, Deputy Rehabilitation Commissioner (L) dated 30-11-72, which itself is sub judice in revision petition before the Settlement Commissioner (L) Multan Division, Multan. No doubt, an order under sections 10 and 11 of the Displaced Persons (Land Settle ment) Act, 1958 passed by a Settlement Commissioner is not subject to appeal or revision but that does not mean that if an appeal or revision is pending, an order under sections 10 and 11 of the said Act can, as if by side-wind, make the appeal or revision infructuous, or, deprive the appellate or revisional Court of their power of decision, or, abolish their jurisdiction. The contention of the learned counsel for the Settlement Department and Noor Hassan that the Officer passing the impugned order was not apprised of the pending appellate or revisional proceedings would not clothe the order with over-riding authority to render everything infructuous or jurisdiction abolisned. Secondly, the inheritance question has been concluded on the basis of the decision of Mr. Hassan Abbas Naqvi, Deputy Rehabilitation Commissioner (L) holding Noor Hassan as sole heir of Mst. Noor Bano, the deceased right-holder, as if she were a "full owner". Such a view prevailed at one stage but was found to be incorrect by the learned Supreme Court of Pakistan. The legal position therefore is that inheritance of a deceased right-holder is governed under paras. 46 and 46-A of the Rehabilitation and Re-Settlement Scheme. A widow is taken as "limited owner". If childless, she gets 1/4th, and the rest goes to the other sharers or residuaries. Further, question of inheritance could hardly be decided in summary proceedings under sections 10 and 11 of the aforesaid Act when the matter was pending in regular proceedings of appeal and revision. For the aforesaid reasons, the impugned order of the Settlement Commissioner/Chief Settlement Commissioner cannot be sustained. It is, therefore, declared to be without lawful authority and of no legal effect with the result that the revision petition pending before the learned Settlement Commissioner (L), Multan shall be taken up. He may call the record of other appellate proceedings as well, and pass a final order determining the question of inheritance of Mst.Noor Bano in accordance with law. As a revisional Court, he is competent to pass consequential orders "as he deems fit". Observations made in this orderD are confined to these proceedings. Technical pleas like laches in two petitions and sale during the pendency of a petition, could not bar the determination of the question of inheritance in view of the other petitions. Therefore, the learned Settlement Commissioner (L) shall feel free, as the law allows him, to determine the substance of the controversy i.e. inheritance of Mst. Noor Bano and consequential actions. The parties may take pleas available to them under the law. These petitions are thus allowed but in the circumstances the parties shall bear their own costs.