This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the order dated 12-7-1976 of the Additional Settlement Commissioner (Lands), with powers of the Chief Settlement Commissioner, Sialkot, whereby he set aside the Mutation No. 26 of village Gondal, District Sialkot, sanctioned in favour of the petitioners and directed that the same be sanctioned in favour of Ghulam Mohy-ud-Din, respondent No. 2 herein.
2. Briefly, the facts of the case are that the petitioners are the legal heirs of Alya, who was a collateral of Ghulam Rasool son of Hajam Din, the owner of the land in Mauza Ghoti, Chamba State, filed Claim No. 25425 for the verification of the land abandoned by him. The claim was duly verified.
The Fard Haqiat was issued and entered at Khata No. 244 of RL-11 of Village Gondal. The land in dispute was proposed and confirmed by the Settlement Authorities on 29-7-1956. Mutation regarding inheritance of Ghulam Rasool son of Hajam Din was sanctioned in favour of the petitioners by order dated 3-8-1956 of the Revenue Officer. Since then, the petitioners are in physical possession of the land in dispute.
3. Respondent No. 2 filed an application on 9-11-1974 under sections 10 and 11 of the Displaced Persons (Land Settlement Act), 1958 (hereinafter called the Act). In this application, he stated that he migrated to Pakistan in 1947 and filed claim for the land owned by him which was verified and allotment in lieu thereof was made in Kahuta, District Rawalpindi. He further stated that his father Ghulam Rasool remained in Chamba State and did not migrate to Pakistan. It was also stated that he transferred to Government of Pakistan the land owned by him in his name. The cancellation of the mutation was sought on the ground that the petitioners were not his relatives and inquiry be conducted in this behalf.
4. Fazal Bibi, one of the legal heirs of Alya, in whose favour the mutation was sanctioned, died on 9- 11-1958, that is, prior to the submission of the aforesaid application, on which application the Tehsildar was directed to submit a report, who recorded statement of Ghulam Mohy-ud-Din son of Ghulam Rasool on 7-1-1975 and that of the other two witnesses namely, Jabbar Khan and Mian Nabi Bakhsh on 28-4-1974, and submitted his report dated 6-5-1975 to the Assistant Commissioner, wherein it was stated that Ghulam Mohy-ud-Din, respondent No.2, was the son of Ghulam Rasool, Claimant of the Chamba State, and that the petitioners Lal Din etc. Were not his legal heirs. It was further stated in the report that Ghulam Rasool was actually alive in India, did not migrate to Pakistan at the time of independence and that the allotment in the name of Ghulam Rasool was genuine which was made against his Claim No. 25425 in Village Gondal against Khata No. 244 of Register RL-11. In view of his inquiry, he recommended that Mutation No. 26 regarding the inheritance of Ghulam Rasool (so-called deceased) decided on 3-8-1956 by the Assistant Rehabilitation Commissioner (Lands) should be cancelled. On the basis of this report, the Assistant Commissioner, Saddar/Additional Settlement Commissioner (Lands), Sialkot, with powers of the Chief Settlement Commissioner, passed the impugned order dated 12-7-1976, cancelling the Mutation No. 26 sanctioned in favour of the petitioner and directed that the land be restored to Ghulam Mohy-ud-Din son of Ghulam Rasool, Respondent No. 2, in whose favour the claimant Ghulam Rasool has surrendered the land in India through the Government of Pakistan.
5. The basic dispute between the parties relates to inheritance after the death of Ghulam Rasool, who admittedly died in India in 1970. The mutation, in question, was set aside on the ground that the petitioners were not legal heirs of Ghulam Rasool son of Hajam Din, but Ghulam Mohy-ud-Din, respondent No. 2 was the legal heir. The sole question for consideration, therefore, is whether the dispute of inheritance between the parties could be adjudicated upon under section 10 of the Act.
The case of Mukhtaran v. Mst. Nur Begum (PLD 1972 Lah. 282), is clear on the point, wherein it is held that the dispute of inheritance between the rival parties is not covered by section 10 of the Act, inasmuch as, the power of the Chief Settlement Commissioner under this section is confined either to cancel the allotment or reduce the area, but he cannot determine the question of inheritance between the rival parties. In the instant case, there is no dispute as to the genuineness of the allotment or the area covered thereunder- An aggrieved party has a statutory right under Chapter VI of the Act to get its rights adjudicated, but such is not available under Section 10 of the Act.
Furthermore right of appeal etc. Under the aforesaid Chapter is to be availed within the period of limitation. Provisions of section 10 are penal in nature. The scope of inquiry under this section is confined to only "allotment" by means of "fraud" and "false representation" and not to dispute of inheritance between the parties. Likewise provisions of section 11 of the Act empowers the Chief Settlement Commissioner to cancel or terminate allotment or to amend or vary terms of allotment made under the provisions of the Act, but the question of inheritance cannot be determined under this section.
6. When confronted with this situation, Kh. Muhammad Farooq, learned counsel for the contesting respondent was unable to rebut the aforesaid legal position. He was also unable to cite any authority contrary to that of Mukhtaran's case (supra). It is, therefore, not necessary to examine other questions raised in this petition, inasmuch as, on the said ground alone, the impugned order is liable to be struck down as without lawful authority and of no legal effect. This order will not, however, debar the respondent front seeking such other remedies as may be available to him under the law for the redress of his grievance.
7. The result is that the impugned order dated 16-7-1976 of the Assistant Commissioner Saddar/Additional Settlement Commissioner (Lands) with powers of the Chief Settlement Commissioner is declared as without lawful authority and of no legal effect. The writ petition is accepted, but there shall be no order as to costs.