1. JAVID IQBAL, J.--This appeal is directed against the judgment dated 30th April, 1983 passed by a Division Bench of the Peshawar High Court Peshawar in Writ Petition No. 572 of 1.978. The background. Is that paternal aunt of the present appellants namely Mst. Khiani (since dead) instituted a claim to certain immovable and movable property in the Court of the Deputy Commissioner, Chitral through two applications dated 25th November, 1974 and 31st January 1975.
2. After hearing the parties concerned the Deputy Commissioner referred the matter to Mizan-e- Shariat which after an inquiry submitted its report to the Deputy Commissioner on 29th September, 1975. The Deputy Commissioner agreeing with the report of the Mizan-e-Shariat vide his order dated 4th January 1976 accepted the same holding that Mst. Khijani was the owner of the property detailed in her applications dated 25th November, 1974 and 31st January 1975. The order was subsequently confirmed by him on 20th December 1976. The present appellants being aggrieved by aforesaid order of the Deputy Commissioner challenged the same in appeal before the Additional Commissioner, Malakand Division. While the appeal was still pending Mst. Khijani died (sometime in April 1976). Mst. Khiani had no other legal heirs except the appellants. Therefore, the appeal was accepted and decided in their favour by the Additional Commissioner vide his order dated 6th November, 1977. Khalilur Rahman respondent No.1 for the first time filed a revision petition in the Court of the Deputy Secretary, Government of N.-W.F.P. Home and Tribal Affairs Department, against the order dated 6th November, 1977 passed by the Additional Commissioner in appeal. In his revision petition respondent No.1 claimed that the disputed property of Mst. Khijani had been given to him by Mst. Khijani deceased under a gift/will-deed executed on 22nd March, 1975. The Deputy Secretary accepted the revision petition of respondent No.1 on 7th May, 1978. As there were some ambiguities in the aforesaid order, the present appellants filed a review petition for the clarification of certain points which was rejected by the Deputy Secretary on 18th July, 1978.
3. As this stage, it is submitted by the learned counsel for the appellants, that when Mst. Khijani deceased had submitted her applications, respondent No.1 was not a party to the proceedings at all between the appellants on the one side and Mst. Khijani deceased on the other, as he was throughout acting as Attorney (Wakil) of Mst. Khijani in these proceedings before one Court after the other. Respecting the claim of respondent No.1, it was submitted, that according to him property in question had been gifted in his favour on 22nd March, 1975 but even after that date he had been prosecuting the case or participating in these proceedings as Attorney (Wakil) of Mst.
4. Khijani during her life time and after her death in April 1976 and he neither asserted his entitlement nor claimed the property in his own right Anyway aggrieved of the orders passed by the Deputy Secretary dated 7th May, 1978 and 18th July, 1978 as well as passed by the Deputy Commissioner dated 4th January 1976 which was confirmed on 20th December 1976, the present appellants filed Writ Petition No. 572 of 1978 which was dismissed by a Division Bench of the Peshawar High Court Peshawar on 30th April, 1983. Leave to appeal was granted by this Court inter alia to determine the question that when respondent No.1 had never been a party in any proceedings between Mst.
5. Khijani on the one hand and the appellants on the other, and that when throughout this period while the proceedings were continuing, he had acted as Attorney or Wakil of Mst. Khijani deceased in the dispute pertaining to the property claimed by her before the Mizan-e-Shariat and that furthermore when the so-called gift/will-deed stated to have been executed on 22nd March, 1975 had never been presented in any of the proceedings on the basis of which respondent No.1 proceeded to claim the property in question against the appellants, but he had only entered into the picture when he put in the said gift/will-deed at the revisional stage before the Deputy Secretary, then as to whether the conduct of respondent No.1 would justify the passing of the order by the Deputy Secretary, dated 7th May, 1978 in his favour.
6. We have heard the learned counsel for the parties. It is evident from the record that throughout the proceedings between Mst. Khijani deceased on the one hand and the appellants on the other, respondent No.1 had been appearing only as an Attorney or Wakil of Mst. Khijani. According to respondent No.1 gift/will-deed was executed by Mst. Khijani in his favour on 22nd March, 1975 of the property in dispute. Mst. Khijani was alive on 29th September, 1975 when the Mizan-e-Shariat submitted its report to the Deputy Commissioner. She is stated to be alive also on 4th January, 1976 when the Deputy Commissioner held in his order that Mst. Khijani was the owner of the property detailed in her applications, as she is stated to have died in April 1976. Throughout this period respondent No.1 never placed on record of the proceedings the said gift/will-deed in order to raise his claim as a donee. The former order of the Deputy Commissioner was confirmed by him on 20th December, 1976 and yet respondent No. 1 did not assert his claim. The appellants had challenged the order of the Deputy Commissioner dated 4th January, 1976 in appeal before the Additional Commissioner and while these proceedings were pending, Mst. Khijani died and since Mst. Khijani deceased had no other legal heirs except the appellants, the case instituted by her came to an end and the appellants were held to be the owners of the property in question as legal heirs of Mst.
7. Khijani vide his order dated 6th November, 1977. It may be noted that in his order dated 6th November, 1977 the Additional Commissioner observes that during the pendency of the proceedings Mst. Khijani died and that an application was moved by the counsel for the parties that since Mst. Khijani had expired leaving behind no legal heirs except the appellants, the case may be filed. Thus, it is clear that although respondent No.1 was acting as Attorney for Mst. Khijani he did not raise his claim founded on the so-called gift/will-deed even at this stage. He only comes into the picture for the first time when he institutes a revision petition before the Deputy Secretary against the order dated 6th November, 1977 of the Additional Commissioner and it is at this stage that he asserts his claim in respect of the property of Mst. Khijani deceased on the basis of the so- called gift/will-deed. In our view the first dispute was between Mst. Khijani on the one hand and the appellants on the other, which was decided in favour of the appellants vide order of the Additional Commissioner dated 6th November, 1977. What respondent No.1 seems to have done is that he raised the second dispute within the first dispute. In our considered opinion the claim of respondent No.1 can be said to be the second dispute which may only be taken up when the first dispute had been decided. Therefore, respondent No.1 may have an independent right, which he may claim separately by way of instituting separate proceedings as against the appellants. But he had no right to interfere in the first dispute. Hence, there was no justification on the part of the Deputy Secretary to pass the order dated 7th May, 1978, which along with other orders was rightly challenged by the appellants in their Constitutional Petition.