1. NASIM HASAN SHAH, J.--This order will dispose of Civil Petitions Nos.26.2-R of 1984, 263-R of 1984 and 266-R of 1984, as all of them are directed against the one and the same judgment passed on 4-7-1984 by a learned Single Judge of the Lahore High Court, Rawalpindi Bench.
2. The facts, which form the background, are that Major Mehtab Khan (petitioner in Civil Petition No.266-R of 1984) and Noor Muhammad Khan, since dead and represented by Muhammad Afzal and others (petitioners in Civil Petition No.262-R of 1984) and one Moulvi Ghulam Haider Khan Jandali were purchasers of considerable agricultural land of a Joint Khata situate in village Topi, Tehsil and District Rawalpindi from three evacuees named Kartar Singh, R3ghbir Singh and Baldev Singh on 20th May, 1947. Major Mehtab Khan had purchased 282 Kanals 19 Marlas of land; Noor Muhammad Khan purchased 306 Kanals 19 Marlas, while Moulvi Ghulam Haider Jandali purchased 24 Kanals. These three had purchased parts of a joint Khata measuring 613 Kanals 19 Marlas. In the case of all the vendees, the sale were effected through registered sale-deeds, possession delivered to them and the necessary mutations effected by the Revenue authorities on 27-5-1947.
3. The partition of the joint khata was carried out by three vendees during the years 1953 to 1960 and this position was reflected in the Settlement record prior in that year. Unfortunately, the said sales had not been got approved from the Custodian, Evacuee Property, although having been effected after 1-3-1947 required such confirmation under the provisions of the evacuee laws. According to Major Mehtab Khan and Noor Muhammad Khan, they had omitted to get the necessary confirmation as they were ignorant of the aforesaid requirement of the law and that it was only when the Enforcement staff pointed out the omission that the three vendees applied sometimes in 1960 under section 20 of Act XII of 1957 for confirmation of the sales. All the applications were, however, dismissed as barred by time. However, on appeal, the application of the late Moulvi Ghulam Haider Khan Jandali (who was by then dead and was represented by his legal representatives) was accepted by the additional Custodian on 7-3-1962 and the delay condoned.
4. The appeal of the other two vendees came up before the Custodian of Evacuee Property (Mr. Justice Masud Ahmad), who, by his order dated 19-12-1980, dismissed both of them as barred by time. All the subsequent efforts made by the vendees to get the orders of dismissal of their applications for confirmation on the ground of limitation set aside and have them considered on the merits proved abortive. The last order in this connection was passed by this Court in Civil Appeals Nos.92 and 93 of 1967, decided on 11th May, 1973, whereby their appeals were dismissed.
5. The judgment is reported as Maj. Mehtab Khan v. The Rehabilitation Authority and others PLD 1973 SC 451. However, this Court, while dismissing the appeals, was pleased to make the following observations: - "Before parting with these cases we would, however, like to observe that the sales in favour of the two appellants having been effected under registered sale-deed, and for adequate consideration, it would be in the fitness of things if the Central Government or the Chief Settlement Commissioner were to see their way to transferring these lands to the appellant either under the policy letter referred to by Mr. Justice Sajjad Ahmad Jan as Custodian of Evacuee Property in his order dated the 18th of July, 1961, or according to any other provisions and powers that may be available in this behalf. It would indeed be a great hardship to the appellants, and to those persons who have purchased small plots of land from them, and constructed residential houses thereon, if the lands are taken away from them at this stage owing to non-confirmation of the sales in question. The price already paid by the appellants would naturally have to be taken into account in assessing their liability for any further payments for these lands."
6. The wishes of this Court could not be realised. The main reason being that, in the meantime, a part of the area involved (285 kanals) was allotted to one Mst. Shah Begum, a displaced person from Jammu and Kashmir and, thus, became available for transfer. The petitioners contested the position that any valid allotment had been made in favour of Mst. Shah Begum aforesaid and the main question involved in the present petitions is whether the area allegedly allotted to Mst. Shah Begum was allotted to her in accordance with law so that it stood excluded from the compensation pool and was, therefore, not available for transfer to others?
7. As for this question it is alleged that the area in dispute was purportedly proposed on 30-9-1962 and confirmed on 13-12-1963 in the name of Mst. Shah Begum. One Mst. Maryam Begum challenged this allotment before Sardar Hamidullah, Deputy Settlement Commissioner on the ground that her claim was pending for Settlement since 1960 and she had priority over Mst. Shah Begum on account of the policy laid down in the letter of the Chief Settlement and Rehabilitation Commissioner (No.1293-63/2857-R(L) dated 27th May, 1963) and, secondly, that even though the claim of Mst. Shah Begum may have been transferred to Rawalpindi District under the orders of the Chief Settlement Commissioner, even then her right to the allotment was superior in view of the policy outlined in the letter of the Chief Settlement Commissioner (No.1293-657/88-R(L) dated 27th May, 1963) referred to above. Both the questions were answered against Mst. Maryam Begum and in favour of Mst. Shah Begum. However, while recounting the facts of the case, in the earlier part of the order, the learned Deputy Settlement Commissioner had mentioned that Mst. Shah Begum's claim was transferred to the District of Rawalpindi under the orders of the Chief Settlement and Rehabilitation Commissioner from District Gujrat that a proposal on Register RL-11 was put up by the Tehsildar, Rawalpindi, justifying the allotment of the land in her favour on 20-9-1963 and that after the inquiries by the allotment committee of the Rawalpindi Tehsil, the Chairman of the Committee, namely, the Revenue Assistant, Rawalpindi, confirmed the proposed land in the name of Mst. Shah Begum on 13-12-1963.
8. Mst. Shah Begum, aforementioned, on 14-1-1964 sold the land confirmed in her favour to Dr. Israr Muhammad Khan, who is presently the main contestant in these petitions. The petitioners in Civil Petition No.262-R of 1984 and Civil Petition No.66-R of 1984, however, allege that they remained unaware of these developments as no one tried to disturb their possession over the land. It was only on 15-2-1974 that one Akhtar Alam submitted a mukhbari application under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958 to question the allotment dated 13-12-1963 made in favour of Mst. Shah Begum. He alleged that Mst. Shah Begum was issued a QPR-V for Gujrat and after the transfer of 1000 units to, her in District Gujrat, it was transferred to Tehsildar Rawalpindi where it was received on 11-5-1964; hence the so-called proposal in her favour on 3-9-1963 and the subsequent order of confirmation allegedly made on 13-12-1963 were all bogus orders although, in fact no such allotment order was made on 13-12-1963 in favour of Mst. Shah Begum nor, indeed, it could have been made. It was prayed that the so-called order dated 13-12-1963 should, therefore, be cancelled.
9. Mr. M. Iqbal Minhas the Settlement Commissioner (L), Rawalpindi Division, accepted the above prayer vide his order dated 3-5-1976 and acting under sections 10 and 11 of the Act he set aside the allotment order Dated 13-12-1963 standing in the name of Mst. Shah Begum.
10. Dr. Israr Muhammad Khan feeling aggrieved by the above--mentioned order dated 3-5-1976, filed a writ petition (W.P. No.917-R of 1979) to challenge it contending that the said order was bad in law as he was not heard before it was passed. According to him, the land allotted to Mst. Shah Begum on 13-12-1963 was sold through a registered sale-deed in his favour on 14-1-1964 and a mutation No.153 to this effect was sanctioned on 6-6-1965 and his name was also incorporated in the Jamabandi for the year 1970-71. He was, therefore, entitled to be heard before the allotment in favour of Mst. Shah Begum was set aside. This plea was accepted by the learned Single Judge of the High Court hearing the writ petition filed by Dr. Israr Ahmad Khan on the ground that the impugned order had been passed contrary to the rule of natural justice audi alteram partem.
11. Accordingly, the order of the Settlement Commissioner dated 3-5-1976 was declared to have been passed without lawful authority and to be of no legal effect. The matter was remitted to the learned Member, Board of Revenue/Chief Settlement Commissioner for entrustment to a competent officer for fresh decision in accordance with law. This order was passed by the High Court on 10-5-1982.
12. The informant (Akhtar Alam) challenged the said order by filing a writ petition before the High Court (W.P. No.10-R of 1984), Major Mehtab Khan and the heirs of Noor Muhammad Khan, who had also become parties to the proceedings and were heard by the Chief Settlement Commissioner, also filed separate writ petitions (viz Writ Petition No. 12-R of 1984 by the former and Writ Petition No. 13-R of 1984) by the heirs of the latter) to challenge the said order of the Chief Settlement Commissioner dated 21-12-1983. All the three writ petitions were disposed of together by a learned Single Judge of the High Court, who found no merit in them. All of them were accordingly dismissed by his order passed on 4-7-1984. Muhammad Afzal and others (the heirs of Noor Muhammad Khan) have impugned the said order by filing Civil Petition for Special Leave to Appeal No.262-R of 1984 before this Court. Major Mehtab Khan has challenged it by filing Civil Petition No.266-R of 1984; while Akhtar Alam the informant, has questioned. It by filing Civil Petition for Special Leave to Appeal, Appeal No.263-R of 1984.
13. We have heard Mr. A.K. Brohi, in support of Civil Petition No.262-R of 1984 and Civil Petition No.266-R of 1984 of Mr. Rashid Murtaza Qureshi, in respect of Civil Petition No.263-R of 1984 (Mr. M.A. Siddiqui, Advocate, submitted that Akhtar Alam wished to withdraw the last mentioned petition but we found that he had since transferred his interests to a third party. Hence, we did not accept this prayer). Ch. Khalil-ur-Rehman, who appeared for the Caveators in Civil Petition No.263-R of 1984 was also heard.
14. Elaborate arguments were addressed by the learned counsel for the parties before us on the question about the validity and genuineness of the allotment in favour of Mst. Shah Begum on 13- 12-1963.
15. The learned Chief Settlement Commissioner (Land) Mr. Saeed Akhtar, has held that the proposal and allotment standing in favour of Mst. Shah Begum were, indeed, made on 3-9-1963 and 13-12- 1963 and the said allotment was proper and regular. Therefore, Mst. Shah Begum was at liberty to sell the land in question to Dr. Israr Muhammad Khan on 14-1-1964. But it appears that in coming to this conclusion the learned Chief Settlement Commissioner has mainly relied on the order dated 13-7-1964 of Sardar Hamidullah Deputy Settlement Commissioner which was passed by him while rejecting the appeal of Mst. Maryam Begum (which she had filed against the allotment of Mst. Shah Begum dated 13-12-1958). However, a careful perusal of the order of Sardar Hamidullah, learned Deputy Settlement Commissioner dated 13-7-1964 shows that he was not dealing with the question whether the allotment purported to be made in favour of Mst. Shah Begum on 13-12-1963 was, indeed, made on that date. In fact he was dealing with the two entirely different questions, namely, whether Mst. Maryam Begum had, in view of the policy letter of the Chief Settlement Commissioner dated 27-5-1963, any priority in the matter of allotment over Mst. Shah Begum because her claim was pending in the estate since 1963 and secondly, whether she could rely upon the said policy letter in the special facts and circumstances of this case viz. The claim of Mst. Shah Begum had also been transferred to Rawalpindi District by the order of the Chief Settlement Commissioner himself. No doubt, the learned Deputy Settlement Commissioner, in the introductory part of the order, did mention that the proposal was made in favour of Mst. Shah Begum on 20-9-1963 and confirmed on 13-12-1963 but these recitals do not appear to have been contended and were assumed by all concerned to be correct. The main concern of the learned Deputy Settlement Commissioner in the aforesaid matter was to determine the two questions noticed by him and referred to above. The learned Settlement Commissioner (Land). In his order dated 21-12-1983, based his finding mainly because the learned Deputy Settlement Commissioner in his order dated 5-7-1964 had stated that the proposal and confirmation in favour of Mst. Shah Begum were made on 20-9-1963 and 13-12-1963 respectively. Hence, the contention that the findings recorded by the learned Chief Settlement Commissioner, in his order dated 21-12-1983, are vitiated because they rest mainly on the facts mentioned in the earlier order of the Deputy Settlement Commissioner dated 13-7-1964 relating to the date of the proposal and confirmation in favour of Shah Begum without realising that the said facts had never been established after the contest and were nothing more than mere assumptions, appears to have force. The learned Judge in the High Court has also overlooked this aspect of the matter.
16. The above contention, inter alia requires further consideration. We would, accordingly, grant leave to appeal in all the three cases.
17. Security in the sum of Rs.2,500 in each case.
18. Status quo to continue meanwhile.
19. The appeal shall, however, be made ready for hearing on an early date.