1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, is from the judgment and order of a Division Bench of the former High Court of West Pakistan, Bahawalpur Circuit, in a petition under Article 98 of the Constitution of 1962 numbered as Writ Petition No. 3-R of 1964/BWP.
2. The same was filed to call in question an order passed by the Rehabilitation Commissioner, Bahawalpur, on the 15th of November 1963.
3. The appellant, it appears, claimed allotment of lands as a sitting allottee of village Kaisar Singh, Tehsil and District Bahawalnagar, through his son Mohammad Din in respect of certain claims, which had been transferred to this village from another place, on the 13th of June 1952. His claim was rejected and the lands measuring about 10J acres were con--firmed in the name of one Ghulam A.I on the 31st of May 1959, but on appeal by the appellant, the case was again remanded back to the Deputy Rehabilitation Commissioner for fresh decision. On remand, the Deputy Rehabilitation Commissioner, after hearing the parties and examining the record in the presence of the local Patwari, came to the conclusion that the appellant was a sitting allottee and his claim had been transferred to this Chak before the claim of Ghulam A.I, the predecessor-in-interest of respondent No. 2.
4. The said respondent and one Sabu went up in appeal from this order, but both the appeals were dismissed by two separate orders on the 4th of March, 1961 and the 14th of April 1961, respectively.
5. The respondent Mumtaz A.I sought a review of this order, but this review was also dismissed after examining the Halqa Patwari and the fard-i-taqseem produced by him. It was observed in this order that Mumtaz A.I had not even raised the question of his being a sitting allottee of the Chak in his appeal. Mumtaz A.I then went up in revision before the Additional Commissioner cum Settlement Commissioner, Bahawalpur Division, and there for the first time produced Exh. P. A., which was claimed to be a certified copy of a fard-1-tagseem showing himself as a sitting allottee.
6. From this order the appellant went up to the High Court in the Writ jurisdiction, but his petition was dismissed, because, in the opinion of the High Court, it was in the discretion of the Rehabilitation Commissioner to accept the certified copy Exh. P. A., particularly, since the respondent was in possession of the lands through the said Suba.
7. Leave was granted in this case to examine whether the Settlement Commissioner could have reversed the decision of the subordinate Rehabilitation Authorities merely on the basis of this certified copy Exh. P. A., when there was no document to be found in the revenue records which could be the original thereof.
8. Before we enter into the merits of this case, we have to dispose of a question relating to the abatement of this appeal as a result of the death of Mumtaz A.I, the original respondent, on the 1st of February 1970. An application for bringing his heirs on record was made on the 23rd of July 1971 and it was allowed on the 22nd of February 1972 subject to the bar of limitation which was to be considered at the time of the hearing of the appeal.
9. Since then Mst. Moazan, one of the surviving daughters of Mumtaz A.I has also died on the 1st of February, 1973, but no application has yet been made to bring her heirs on the record. Indeed, a learned Judge of this Court on the 7th of May 1973 actually passed at order for the ex parte hearing of this appeal against the non-appearing legal representatives of Mumtaz A.I.
10. Learned counsel for the heirs of Mumtaz A.I has now filed an application intimating the death of Mst. Moazan mentioning the names of her heirs and seeking permission to be added as parties after the setting aside of the ex parte order passed on the 7th of May 1973. The office records disclose that Mumtaz A.I, died at village Gulab A.I situated 8 or 10 miles away from village Kaisar Singh and the appellant came to know of his death only a week before he made his application.
11. These allegations were not controverted by anyone. Hence there were sufficient grounds for condoning the delay in making the application for bringing on the record the heirs of Mumtaz A.I and we maintain the same.
12. Thereafter, notices were duly sent out to the heirs of Mumtaz A.I. They were received by all of the them except Mst. Moazan who had died in the meantime. In these circumstances, we cannot permit the defaulting heirs, who bad disregarded the notices served by this Court, to enter appearance at this late stage. But since Mst. Moazan was never served, we grant permission to her only heir, her minor son Jamshed A.I to enter appearance after condoning the delay in the filing of the application for bringing him on the record. Let his name be brought on the record in place of Mst. Moazan after setting aside the ex parte order against her.
13. On merits the learned counsel for the appellant has strenuously contended that the Rehabilitation Commissioner acted improperly in accepting a certified copy produced for the first time at that late stage in revision without giving sufficient opportunity to the appellant to produce rebutting evidence. After the Deputy Rehabilitation Commissioner had examined the record brought by the Patwari, the Rehabilitation Commissioner should have been extremely cautious in accepting the certified copy, Exh. P. A., at its face value. Obviously this was a subsequent fabrication, because, at no earlier stage had Mumtaz A.I ever claimed to be a temporary or a sitting allottee of this Chak.
14. Learned counsel appearing for the added respondent Jamshed A.I on the other hand states that the Rehabilitation Commissioner exercised his discretion to accept the certified copy, Exh. P. A., upon sound judicial principles and the High Court was right in refusing to interfere on that ground.
15. We are unable, however, to accept this contention.
16. It appears to us that the Rehabilitation Commissioner sitting in revision had not examined the record while accepting the certified copyExh. P.A., which came to be filed only at the hearing stage before the Rehabilitation Commissioner. Before accepting the same and setting aside concurrent findings of fact of the subordinate Rehabilitation Authorities, it le was incumbent upon him to hold a proper enquiry.
17. We have also examined the original fard-in-taqseem which has been summoned by the appellant from the Patwari's office. It shows one Ghaus Muhammad as Pattadar and there is nothing in it to show that this "Ghaus Mohammad was in any way related to the parties or was holding under anyone of them as a tenant. The name may, however be a bona fide mistake for "Ghaus Bux" who according to the khasra girdawaris is the person in cultivating possession of the lands in dispute.
18. The name of Mumtaz All is, however, not there and even in the copy Exh. P. A., it appears to have been added at the end. Be that as it may even up to this date the original of which Exh. P. A.
19. Purports to be a certified copy has not been produced.
20. We are in the circumstances of the view that a proper investigation should be made to find out if the certified copy, Exh. P. A., is a genuine document and is a certified copy of an original document in existence in the settlement or rehabilitation or revenue records.
21. We, accordingly, allow this appeal, set aside the order of the Rehabilitation Commissioner and remand the case back to the Rehabilitation Commissioner to first decide if the said copy, Exh. P. A., is a genuine document and then dispose of the Revision in accordance with law.
22. If Exh. P. A. Is not found to be genuine, then allotment should be made strictly in accordance with the provisions of paragraph 7 of the Rehabilitation Settlement Scheme.
23. The costs of this appeal will be costs in the proceedings before the Rehabilitation Commissioner.