Land measuring 10 kanals 10 marlas situate in Chak No. 207-R.B., Tehsil and District Lyallpur (now Faisalabad) belonging to Fateh Ullah, the predecessor-in---interest of respondents Nos. 2 to 5, was sold by him to Sunder Lal evacuee in the year 1946. This land was allotted to petitioner No.1 now represented by his legal heirs, by the Rehabilitation Commissioner, in the year 1949, initially for a period of 3 years, but later on the lease was extended for a further period of 30 years. Petitioner No. 1 constructed an Ice Factory, known as "Kausur Ice Factory" over this site.
2. It appears, that after the death of Fateh Ullah his two sons namely Sami Ullah and Amir A.I filed a declaratory suit that the sale was not binding on their reversionary rights. Sami Ullah has been impleaded as Respondent No. 2 in this petition whereas Respondents Nos. 3 to 5 are the successors-in-interest of Amir A.I deceased. Amir Alt succeeded to the extent of his share in the land which was worked out as 7/24 but the suit of respondent No. 2 was dismissed. On 19-5-1951 the widow and the two daughters of Fateh Ullah also filed a suit in respect of their 10/24 share in the land in dispute. This suit was decreed on 7-12-1961. On the basis of the two decrees, mutations were also sanctioned, in favour of the decree holders.
3. Petitioner No. 1 challenged both the decrees through a Civil suit on the ground of fraud and that reference was not made to the Custodian. This suit was decreed in his favour on 26-5-1953 but the learned Civil Judge who delivered the judgment observed, that the widow and the two daughters of Fateh Ullah and so also Amir A.I could proceed with their respective suits afresh, from the stage of the passing of the decrees in their favour.
Earlier respondent No. 2 assailed the dismissal of his suit through an appeal, which was accepted by the learned District Judge and the case remanded to the learned trial Court for framing additional issues. This course of action was not approved by the High Court and by judgment dated 18-1-1954 late Mr. Justice M.R.
Kayani, in exercise of suo-moto revisional jurisdiction under section 115 C.P.C. The District Judge was required to frame the issues himself and then remand the case, with a direction that a report be submitted to him within a time limit.
4. On the commencement of Settlement operations, petitioner No. l applied for the entire plot, under Settlement Scheme No. VI which was transferred to him by the Deputy Settlement Commissioner by his order dated 19-10- 1973. On the same date by means of a deed of association, petitioner No. l surrendered his rights to petitioner No. 2. This deed was approved by the Deputy Settlement Commissioner, the transfer price of plot realized by the department C Rs. 5,000 per marla, and a P.T.O. Issued to petitioner No. 2 on 10-11-1973.
5. Respondent No. 2 filed a revision petition against the order dated 19-10--1973. The widow and the two daughters of Fateh Ullah challenged this order separately. Both the revisions were disposed of by the learned Settlement Commissioner by his order dated 6-5-1974. He visited the spot and found that a part of the building comprising the family quarters occupied by petitioner No. 2 was built by him recently without any sanctioned plan of the Municipality. In his opinion, this construction was raised to fulfil the condition of existence of the building over 1/4th of the total area; to cover about 7 kanals area which was lying vacant, and to frustrate the objections of respondent No. 2 and others who were litigating with petitioner No. 1 on the civil side. The learned Settlement Commissioner thus came to the conclusion that the factory stands in an area measuring 2 kanals 19 marlas whereas the building covers only an area measuring one kanal. Accordingly he modified the Deputy Settlement Commissioner's order dated 19-10-1973 to the extent that only an area measuring 2 kanals, 19 marlas was transferred to the petitioners. He also took and exception to the evaluation of the plot @ Rs. 2,000 per marla. The plot with -the area of 7 kanals, 4 marlas cancelled from the petitioner's name was not transferred to respondent No. 2 and others but was treated as part of the compensation pool and their revision petitions in this respect were dismissed. The Settlement Commissioner's order dated 6-5-1974 has been called in question by the petitioners by invocation of Article 199 of the Constitution.
6. I have heard the learned counsel for the petitioners and examined the record. No one has appeared on behalf of the respondents to contest the petition. They shall be therefore, proceeded against ex parte.
7. The first objection against the impugned order raised by the petitioner's learned counsel was, that the respondents had no locus standi to challenge the Deputy Settlement Commissioner's order dated 19-10-1973 as their suits had already been disposed of and in any case no suit was pending on the date of this order. It is difficult to agree with the learned counsel on the basis of the present record. There is no material on the file to conclusively prove that the respondents' suits which were pending in the year 1954 were dismissed in default or otherwise determined on merits. Obviously, if the respondents' suits had already been disposed of and they were no longer in the field, they would have no locus standi to tile the revision petitions. This point requires consideration by the Settlement Authorities.
8. It was next contended that the impugned order wholly rests on the visual inspection of the learned Settlement Commissioner who did not take actual measurements of the property and even ignored material piece of evidence. In this respect the learned counsel referred to copy of the building plan of the Kausar Ice Factory (Annexure `N') which was produced by petitioner No. 1 in the civil suit in the year 1953, to contend that even according to this plan, the built up area of the factory is more than 1/4th of the total area of plot. The findings of the learned Settlement Commissioner, that some construction was recently raised by petitioner No. 2 were also assailed. As no body has appeared on behalf of the respondents, these submissions of the petitioner's learned counsel have remained uncontroverted.
I have examined tie certified copy of the plan Annexure `N'. Prima facie this document lends some support of the submissions of the learned counsel, but it is not possible to decide this disputed question of fact on the basis of the present record. On this issue too, the case requires further consideration by the departmental authorities. The petitioner's learned counsel have also raised some other objections, which need not be adjudicated upon as this case has got to be remanded to the Settlement authorities for fresh decision and these points can be urged by the petitioners before them.
9. For the foregoing reasons, this writ petition is accepted, the impugned order is declared to have been passed without lawful authority. The case is remanded to the learned Member Board of Revenue (Settlement & Rehabilitation Wing) for its entrustment to the concerned Officer, who after hearing the parties shall pass a fresh order, in the light of the above observations, m accordance with law. As no body has appeared on behalf of the respondents, there shall be no order as to costs.
A.A./M-1669/L