' Relevant facts necessary for decision of the dispute raised in the present constitutional petition are that land measuring 3 Kanals Khasra No.20/1/1 part of Square No.22 situated in Chak No.207/RB was temporarily allotted to Muhammad Amin, Muhammad Habib and Abdul Hamid sons of Muhammad Ismail. As the allotment was found to be in excess of their entitlement, it was taken away from them and confirmed in the names of Akram, Irfan, Pervez, Javed, Mst.Farkhanda and Rakhshanda, successors-in-interest of one Mst Ghafooran and Imdad Ali, vide order, dated 30-5- 1957 of Additional Settlement Commissioner (Lands). Muhammad Amin and others aggrieved by the allotment order preferred an appeal. Deputy Rehabilitation Commissioner interfered in appeal and recalled the allotment order, dated 30-5-1957 and observed that the land be kept reserved till such time that the entitlement of Muhammad Amin and others was reverified by the Central Records Office. Since as a result of reverification, no further entitlement was found by the Central Record Officer, land in dispute was alloted to and confirmed in the name of Muhammad Sharif, the present writ petitioner vide order, dated 8-1-1961 by Additional Settlement Commissioner. Armed with settlement of land in his favour Muhammad Sharif sold the same to Muhammad Ramzan for consideration. However, order, dated 8-1-1961 was challenged before the Additional Settlement Commissioner (Lands), through two separate appeals. Vide order, dated 1-10-1965, both the appeals were accepted and the case was remanded for redecision on merits in accordance with certain directions which in view of the order I propose to make it is not necessary to reproduce.
Muhammad Sharif and Muhammad Ramzan went before the Settlement Commissioner in revisional jurisdiction but did not succeed. Revision petition was dismissed on 3-1-1967. Thereafter the orders adversely operating against the interest of Muhammad Sharif allottee and Muhammad Ramzan vendee were assailed in constitutional jurisdiction before the High Court in Writ Petition No.331/R/67. Mr. Justice Muhammad Siddique (as his Lordship then was) vide order, dated 19-11- 1973 set aside order, dated 3-1-1967 and remitted the case to the Settlement Commissioner (Lands) for decision afresh. Relevant observations are found in para. 2 of his Lordship's judgment. It reads:- "After hearing the learned counsel for both the parties, the position boils down to this that if the petitioners succeed in the present writ petition, the case goes back to the Settlement Commissioner for fresh decision. If the contention of the respondents is accepted and the writ petition is rejected, the case goes to the Deputy Settlement Commissioner (Lands) for fresh decision, as already remanded by the Additional Settlement Commissioner (Lands) by his order, dated 1-10-1961. In other words neither party claims decision on merits by this Court. When confronted with this situation, namely, whether the case should go before the Settlement Commissioner or the Deputy Settlement Commissioner (Lands) for fresh decision, the counsel for both the parties agreed that the case be sent back to the Settlement Commissioner and not to the Deputy Settlement Commissioner (Lands).
' In the circumstances mentioned above, the impugned order of the Settlement Commissioner dated 3-1-1967 is clearly without lawful authority and I declare the same as such. The writ petition is accordingly accepted, the impugned order is quashed and the case is sent back to him for fresh decision on merits in accordance with law, after giving notice to the parties concerned. The parties shall bear their own costs."
' Vide order, dated 19-3-1975, learned Additional Commissioner (Revenue) in exercise of his powers of Settlement Commissioner (Lands), Sargodha proceeded to recall allotment order made on 8-1- 1961 in favour of Muhammad Sharif and confirmed the said piece of land in favour of Muhammad Amin and others. Muhammad Sharif alone without impleading his vendee Muhammad Ramzan or his legal heirs either as co-petitioners or respondents has come to invoke the constitutional jurisdiction of this Court to test the soundness of order, dated 19-3-1975 passed by the Settlement Commissioner (L) depriving him of evacuee land settled way back on 8-1-1961 and that too without affording any opportunity of hearing in the post-remand proceedings. The petitioner was admitted on 23-9-1975. The Court while admitting the petition observed:- "23-9-1975. Malik Amjad Hussain Advocate.
(1) Record received and perused.
(2) Muhammad Sharif petitioner has sworn an affidavit that he was never served with any notice about the hearing of the case before Capt. M.A. Majid, Additional Commissioner (Revenue) with powers of Settlement Commissioner (Lands), Sargodha Sargodha and, therefore, has been condemned unheard. Admit. Notice.
(3) Status quo already granted to continue.
2. Writ petition has come up before me today for final hearing in the presence of learned counsel for both the parties. I have heard both learned counsel and have also examined the lower Court's record with their assistance. Before I proceed to record the submissions of learned counsel, it may be appropriate to mention that the private respondents submitted their written statement through their counsel at 12.45 p.m. after Malik Amjad Hussain, Advocate had concluded his address.
3. Petitioner's learned counsel contended that Settlement Commissioner (Lands) without affording any opportunity muchless an adequate opportunity as directed by the High Court has passed an adverse order against the petitioner. Petitioner, therefore, stands condemned unheard. The Court, it seems, has not issued any notice for appearance to the petitioner/allottee of the evacuee land and on the basis of false record the petitioner and his counsel have been shown present on 17-2- 1975, 26-2-1975, 10-3-1975 and 19-3-1975 when the order was finally announced. It was vehemently asserted by Malik Amjad Hussain, learned counsel that neither the petitioner was present nor had he engaged a counsel to represent him before the Settlement Commissioner. On merits, he submitted that land was allotted to and settled upon him on 8-1-1961 in lieu of his verified entitlement. Basing himself on the order of Settlement, he had alienated the land to Muhammad Ramzan for valuable consideration. He stated that it would be clearly against the policy of Settlement Laws to unsettle the petitioner at this stage of time to accommodate the respondents, moreso when the Evacuee land was available to satisfy the pending entitlement if any of the respondents.
4. Ch. Qadir Bakhsh, Advocate learned counsel for the respondents Nos.1 to 3 submitted that it is absolutely incorrect to state that the petitioner or his counsel were not present on the dates mentioned above. Summonses were issued by the Court to the petitioner and Muhammad Ramzan vendee requiring them to enter appearance and join the proceedings before the Court.
Muhammad Ramzan who had meanwhile expired was represented by his son Muhammad Ismail.
Muhammad Sharif appeared in person alongwith his counsel as is amply demonstrated by the order-sheet maintained by the Court. He also raised an objection on the score of locus standi of the petitioner and non-joinder of a necessary party. It was stated that the petitioner having completely divested himself of any right of property on sale of land to Muhammad Ramzan was left with no sufficient interest to have any locus standi to invoke constitutional jurisdiction of this Court. It was Muhammad Ramzan or his heirs now, who alone can, if so desired by them, have any grievance and not the petitioner. In the absence of Muhammad Ramzan or his heirs before the Court, the writ petition suffers from non-joinder of necessary party. On merits also the order was defended. It was contended that allotment in favour of Muhammad Sharif was in contra vention of order, dated 7-11-1957.
5. The case was remitted to the Settlement Commissioner (Lands) for redecision of merits after notice to the parties. I have examined the lower Court's record with minute care and attention. It does not contain any record of summonses 'issued in the name of Muhammad Sharif petitioner.
The notices, three in number, issued in the name of Abdul Hamid, Muhammad Habib and Ch.Muhammad Amir are present on record but none as regards Muhammad Sharif. Power-of- attorney executed in favour of Ch.Muhammad Nasim Arshad, Advocate executed by heirs of Muhammad Ramzan through Muhammad Ismail, their General attorney is also available on record, but no power-of-attorney exists on file on behalf of Muhammad Sharif. Muhammad Sharif has sworn an affidavit that he was never summoned by the Settlement Commissioner for hearing of the case. Factum of service and hearing has been denied by the petitioner. This assertion of Muhammad Sharif was contoverted by his opponents. However, in the absence of any material on file shown that any notice/summons was issued in the name of Muhammad Sharif an further the absence of any power-of-attorney said to have been executed by Muhammad Sharif in favour of his counsel goes a long way t demonstrate that the petitioner was not present nor was he afforded any opportunity of hearing in the case by the learned Additionally Commissioner (Revenue). This point was sufficient for decision of the petition. Since, however, learned counsel for respondent's has heavily stressed on the question of locus stand' and non-joinder of a necessary party, it will be failing in duty if I do not attend to the points raised and record my views thereon. Learned counsel has placed reliance upon Ahmad Zaman Khan v. Settlement Commissioner 1981 CLC 1641, Rawalpindi Improvement Trust Rawalpindi v. The Government of Pakistan etc. PLD 1970 Lah. 760, Ali Muhammad Ali etc. v. Collector, Venari etc. 1983 CLC 2888 to support his above legal contentions.
6. Allotment/settlement was made in the name of Muhammad Sharif.
He alienated the land in favour of Muhammad Ramzan, his vendee for valuable consideration.
Vendee's rights in the land sold are subject to the allottee's rights. He sinks or sails in one boat with the allottee. In case, allotment was held maintained, vendee's rights will stand protected. He disappears from the scene in case the allotment goes. Vendee in the latter eventuality must look to his alienor for return of consideration paid etc. In any case it is the allottee who suffers most and in order to protect his title to the land has sufficient interest equipping him with locus standi to file and prosecute the writ petition. Absence of Muhammad Ramzan or his heirs does not in any manner operate to the prejudice of the objecting respondent's. Cases cited as precedents by the respondent's counsel are distinguishable on facts and do not support the contention raised by the learned counsel for the respondents. Absence of Muhammad Ramzan or his legal heirs does not affect the maintainability of the petition or stand in the way of the Court from making an effective and binding decision regarding the controversy raised by the parties. Process of settlement originated with the creation of State of Pakistan, with the iflux of millions of persons uprooted from their homes and hearths and were forced to take refuge in this newly created State. This complex problem relating to resettlement of the refugees despite expiry of a period of over three decades could not come to its end. The purpose behind was to rehabilitate the uprooted displaced persons and restore the enconomic life of newly born State. Therefore, the efforts be to settle and not unsettle. Without expressing any view on the merits of the case relating to the entitlement of the parties, the learned Deputy Commissioner may look to the propriety of settling the parties and thereby bring to an end this long agonizing litigation.
6-A. Writ is allowed, the impugned order is set aside and the case is remitted to the Deputy Commissioner to decide afresh after affording an opportunity of hearing to the parties concerned.
Learned Deputy Commissioner is directed to finalize the proceedings before him within a period of two months from the date of the receipt of the order from this Court. Office to transmit the copy of the order to learned Deputy 'Commissioner immediately without loss of further time. Parties are left to bear their own costs.