1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment of a Division Bench of the former High Court of West Pakistan, Lahore Seat, dismissing in limine a writ petition filed to call in question an order passed by the Settlement Commissioner, Sargodha Division, on the 4th of December 1964.
2. The present appellant is the only issue of one Mst. Rashidan, a refugee from Jullundur District, and her husband Farzand Ali. The latter, who was a resident of the District of Jullundur, now .In India, died in the year 1932 leaving behind considerable agricultural lands, which were mutated in the same year in the name of his widow Mst. Rashidan, according to customary law.
3. On Partition, Mst. Rashidan migrated to Pakistan and settled in Chak No. 661/2-G. B., Tehsil Toba Tek Singh, District Lyallpur. She filed a claim Form No. 7411 for the verification of her claim in respect of agricultural lands abandoned by her in India. This was duly verified for 2464 produce index units and a "Fard-i-Haqiat" was issued to her, which she got registered in Chak No. 294/G. B. Toba Tek Singh, as she wanted lands to be allotted to her in the said Chak, where her daughter, the present appellant, is settled. This could not, however, be granted as the Chak concerned was in a congested area, and the claimant, not being a sitting allottee of that Chak, was not entitled to get any lands there.
4. It was in this state of affairs that Mst. Rashidan died on the 2nd of May 1953, before any lands could be allotted to her. After her death, the present appellant applied to the Additional Rehabilitation Commissioner (Lands), Toba Tek Singh, praying that she may, according to Departmental instructions, be treated as sitting allottee of Chak No. 294 because her husband was a sitting allottee there and her deceased mother had actually got her claim entered in the register of this Chak. The claim, it appears, was pending with the Patwari.
5. On this application, the Assistant Rehabilitation Commis--sioner, on the 7th of September 1955, ordered that a formal proposal for allotment be put up. While this proposal was being examined, mutation proceedings for recording the mutation of inheritance of Mst. Rashidan came up for decision on the 7th of December 1955, and it was sanctioned on the same day by Mutation No. 139.
6. The appellant was entered as an heir entitled to a half share. Babu Khan, the father of Mst.
7. Rashidan, was held entitled to 1/3rd share and Mst. Sohana, the mother of Mst. Rashidan, was given 1/6th share. In this mutation, it appears, the collaterals of Farzand Ali, the husband of Mst. Rashidan, were ignored.
8. Subsequently, the entitlement of Mst. Rashidan was reverified as 2064 produce index units and, therefore, the half share of Mst. Khurshid Begum, the present appellant, came to 1132 produce index units.
9. On the basis of this entitlement, the appellant was, on the 29th of February 1956, given an allotment of 309 produce index units in Chak No. 294/G. B. And entered in R. L. II No. 735.
10. At this stage, the collaterals of Farzand Ali became interested in the matter and applied for a review of the mutation. This was allowed on the 28th of January 1958, and the share of the appellant in the estate of Farzand Ali was re-calculated as 27/48th share ; the collaterals were given 19/48th share and Mst. Sohana 1/48th share. This is the final mutation which has not been challenged by anybody since.
11. After this, the appellant, by her own efforts, secured four fur--their allotments between 13-6-59 and 20-12-61 of a total of 1235 produce index units and the last allotment was secured by her on 30-6- 64 of 32 produce index units. The total that she thus received was 1576 produce index units.
12. The respondent No. 2, Bahawal Khan, and Babu Khan, the predecessor-in-interest of respondents 5 to 9, then applied under subsection (4) of section 10 of the Displaced Persons (Land Settlement)
13. Act, 1958, to the Deputy Settlement Commissioner (Lands), Toba Tek Singh, for the cancellation of the allotments of the appellant on the ground that she had obtained an area in excess of her entitlement by fraud and misrepresentation This application was accepted by the Deputy Settlement Commissioner on the 12th of March 1962, to the extent that he found that she had obtained 237 excess units. The allegations of fraud and misrepresentation were not accepted. The case was, however, remanded to the S. D. O., Toba Tek Singh, for ascertaining the correct entitlement of the appellant and for the recovery of the excess area so obtained by her. This excess area was also ordered to be given to the informers, Bahawal Khan and Babu Khan.
14. The appellant went up in appeal alleging that she had validly obtained the excess area by purchase under Government letter No. 2195-62/3994-R(L) dated 18-5-62 and had actually paid four instalments in that behalf. The Additional Settlement Commis--sioner, Lyallpur, accepted this appeal on the 31st of July 1964, and allowed her to retain the excess area.
15. From this order Bahawal Khan alone went up in revision to the Settlement Commissioner alleging that the order of the Additional Settlement Commissioner was a nullity on the ground that it was made in the absence of the respondent, who, being a collateral of Farzand Ali, was a necessary party. His second contention was that the order of the Deputy Settlement Commis--sioner (Lands) passed on the 12th of March 1962, not having been challenged in any competent Court, had attained finality in the eye of law and could not be revised thereafter. There was no complaint in the ground of revision filed by Bahawal Khan that the allotments had been obtained illegally or improperly by the appellant. His only complaint was that she had obtained more than what she was entitled to.
16. Nevertheless, the Settlement Commissioner took the view that the subordinate Rehabilitation staff had "completely mis--applied their minds" to this case by ignoring that the right-holder was in fact Mst. Rashidan and not the appellant Mst. Khurshid Begum. Therefore, the proper procedure that should have been followed was to make the allotments first to the name of deceased Mst.
17. Rashidan and then to substitute all her heirs in her place, as all heirs took jointly. Since this had not been done, the whole procedure was wrong and the entire allotments of "all the successors to her property had to be shown, a cording to their respective shares, under the name of Mst. Rashidan in Col. No. 2 of Register R. L. II" and no mutation of succession could be entered or sanctioned before the claim of Mst. Rashidan had been satisfied fn toto.
18. In other words, what the learned Settlement Commissioner wanted to be done was that the name of Mst. Rashidan had first to be created in the Revenue/Rehabilitation records and then the 5 question of succession taken up. What the authorities had actually done was, according to him, to follow a reverse process, and this was wrong. Hence he set aside all the orders of the F Deputy Rehabilitation Commissioner (Lands) and the Additional Settlement Commissioner (Lands), Lyallpur, and remanded the case back to the Deputy Settlement Commissioner (Lands), Lyallpur, with a direction that action be taken on the lines indicated by him.
19. This was the order that was sought to be challenged by a writ petition in the High Court, but the High Court dismissed the petition in limine. Leave, however, was granted by this Court to consider whether the learned Settlement Commissioner had himself not proceeded upon a completely wrong assumption and without consideration of the relevant instructions on the subject.
20. Learned counsel appearing in support of this appeal has taken us through the various R. L. II forms in respect of the allotments made in favour of the appellant from time to time to show that in each case the right-holder has been described as "Mst. Rashidan, the widow of Farzand Ali Rajput", and then according to mutation No. 139 lands have been allotted according to the respective shares of the successors. The appellant was given lands in Chak No. 294/G. B. As she was treated as a sitting allottee but the entitlement certificates of the other successors were transferred to other Chaks where they could obtain allotments in their favour.
21. He has also taken us through the various applications filed by the appellant to show that these allotments were all made in pursuance to her application for being treated as a sitting allottee under the Departmental instruction on the basis that her husband was a sitting allottee in this Chak.
22. Mst. Rashidan not being a sitting allottee of this Chak could not have been allotted any lands there and, therefore, it is difficult to appreciate as to how any of the lands, could even notionally, to allotted to Mst. Rashidan first and then to her successors jointly, as desired by the Settlement Commissioner.
23. It is further contended that after mutation has been entered, then under the Muhammadan Law, each shareholder gets a vested right to the separate enjoyment of his share and he cannot be treated as a joint owner. In the circumstances, no illegality had been committed in giving separate allotments to the successors of Mst. Rashidan according to their respective shares and no useful purpose will now be served by treating them as joint owners or joint allottees in respect of each allotment. It would only create further complication and result in further litigation.
24. Learned counsel also contends that the power of suo motu revision given to the Additional Settlement Commissioner under section 19 of the Land Settlement Act could only have bean exercised within nine months of the order sought to be revised. Therefore, the orders of allotment made in favour of the appellant on the 29th of February 1956, 13th of June 1959, 10th of March 1960, 28th of September 1960, and the 20th of December 1961, could not have been revised at all. The only orders that could possibly have been revised were the last allotment order in respect of 32 produce index units made on the 30th of June 1964, and the order of the Additional Settlement Commissioner passed on the 31st of July 1964, allowing the appellant to retain the excess area.
25. Even with regard to the allotment made on the 30th of June 1964, there was no prayer by Bahawal Khan for its can--cellation. All that he wanted was that the order of the Additional Settlement Commissioner passed on the 31st of July 1964, allowing the appellant to retain the excess area on payment of a fair price should be set aside and that the excess area should be granted to him as an informer. He did not want the allotments in favour of the appellant or in his favour to be brought in the hotchpotch and divided amongst all the co-sharers. Therefore, the learned Settlement Commissioner, if he was exercising his suo motu powers of revision, could only have revised the order of the 31st of July 1964, and not the previous orders of allotment, because, such a revision was neither competent nor desired by Bahawal Khan.
26. Learned counsel also contends that since section 5 of the Limitation Act has not been made applicable to proceedings under the Land Settlement Act, the Settlement Commissioner had no power even to condone delay.
27. Learned counsel has also drawn our attention to para--graphs 67, 67-B and 68 of the Rehabilitation and Settlement Scheme, Punjab and Appendix 7 annexed thereto to show that the rehabilitation scheme itself did not contemplate the procedure indicated by the learned Settlement Commissioner. It clearly contemplated that if a right-holder had died before any allotment, then a mutation was first to be made and then allot--ments made to the successors individually, according to their respective entitlements.
28. Learned counsel for the respondent, on the other hand, sought to contend that the revision was made under the suo motu powers given to the Settlement Commissioner under the Pakistan Rehabilitation Act of 1956 for which no time limit had been prescribed. This is clearly not so, because, the proceedings in this case were initiated by an application under subsection (4) of section 10 of the Land Settlement Act and not under the Rehabilitation Act. In any event an allotment under the Dis--placed Persons (Land Settlement) Act, 1958 could not be set aside under the Rehabilitation Act of 1956. Therefore, the revision was in the present case clearly under section 19 of the Land Settlement Act and not under the Pakistan Rehabilitation Act of 1956.
29. We are also in agreement with the learned counsel for the appellant that the learned Settlement Commissioner completely misconceived the scope of his powers, as also the scope of the revision before him, for, the revision application was confined to challenging the order granting permission to the appellant to purchase the excess area on payment of its price and it was not intended thereby to challenge any one of the allotments made in her favour. The revision against this order was within time; but, unfortunately, the learned Settlement Commissioner, instead of deciding this question, went on to reopen the whole case and to set aside all the allotments made between 1956 and 1961 which he clearly could not do, as they had already attained finality in accordance with the provisions of the Displaced Persons (Land Settlement) Act, 1958 itself.
30. We are also in agreement with the learned counsel that the Rehabilitation Scheme does not contemplate an allotment in favour of a deceased right-holder. The allotment is in the nature of a grant under which obligations are imposed on the allottee to appear before the Rehabilitation Authority, accept the allotment and affix his thumb-impression on Register R. L. II. It is obvious that a dead person cannot do these things as required by paragraph 68 of the Scheme.
31. Paragraph 67-B of the Scheme also clearly contemplates that allotments are to be made to the successors, for, it provides that they should not exceed the extent of their respective shares.
32. In these circumstances, we are of the view that this appeal must be allowed and the order of the Settlement Commissioner set aside. We also remand the case back to the Settlement Commissioner to dispose of the revision petition filed before him by Bahawal and decide the question in dispute therein, namely, as to whether the appellant was entitled to retain the excess area on payment of a fair price.
33. The appeal is, accordingly, allowed, but there will be no order as to costs.