This petition is directed against the order dated 30-6-1977 passed by Additional Commissioner (Consolidation) Settlement Commissioner Lands, Multan on a Mukhbari application filed by Gul Muhammad and Khan Muhammad respondents Nos.4 and 5.
2. Brief facts of the case are that Ilahee Bakhsh son of Jumman migrated from India and filed his Claim No. 1562 in respect of the land abandoned by him in India. The claim was duly verified by the Central Record Office for 2875 P.I. Us for the land abandoned in village Bhonde, tehsil Ferozepur, Jhirka, Chak Tashkhish Dahar Shirin. Accordingly land measuring 244 Kanals 17 Marlas equivalent to 777 P.I. Us. Situated in village Vani, Tehsil Taunsa, was proposed in the name of Ilahee Bakhsh on 9- 3-1954 and subsequently confirmed on 13-1-1956. Land measuring 1392 Kanals and 10 marlas equivalent to 1901 P.I.Us. Was also confirmed in his name on 13-1-1956 in Mauza Mir Khar. Similarly land measuring 13 kanals and 4 Marlas equivalent to 201 P.I. Us was proposed in the name of llahee Bakhsh on 16-3-1958 and confirmed on 14-6-1958 in Mauza Nari Shamali, Tehsil Taunsa. These facts are borne out from the copies of RL 11 Nos.3 and 4 annexed to the petition. Ilahee Bakhsh died on 15- 10-1958 and a death entry was made in the relevant register of D.G. Khan. A copy of the death certificate is annexed with the writ petition as Annexure `D'. The original register containing the death entry was summoned from the Municipal Committee, D.G. Khan. After comparison of the death certificate Annexure `D' with the original entry in the death register it was noted by this Court vide order dated 11-2-1989 that the entries in the death certificate were correct and genuine. Ilahee Bakhsh was survived by Mst. Sahibi widow and Chandar Khan, respondent No.6. After some time Mst. Sahibi widow of llahee Bakhsh also died. Thus respondent No.6 became the sole owner of the disputed land. Respondent No.6 originally mortgaged the land measuring 1,392 Kanals and 10 Marlas, situated in Mauza Mir Khar for a sum of Rs.35,000 in favour of petitioners Nos.1 to 3 on 16-6- 1969 vide mutation of Mortgage No.202 sanctioned on 29-6-1970. Subsequently on receipt of an additional amount of Rs.1,000 he sold the land to petitioners Nos. 1 to 3 vide Mutation No.203 sanctioned on 29-6-1970. Chandar Khan also mortgaged the land measuring 244 Kanals and 17 Marlas, situated in Mauza Wani in favour of respondents Nos. 1 to 3 on 18-6-1969, vide Mutation No.687 sanctioned on 29-6-1970 on receipt of Rs.14,000. He sold the land to petitioners Nos.1 to 3 on receipt of additional sum of Rs.50n vide h1utatio > No.689 sanctioned on 29-6-1.970. Similarly land measuring 39 Kanals and 4 Marlas was sold to petitioners Nos.1 to 3 by Mutation No. 2302 sanctioned on 29-6-1970. In all the mutation proceedings Chandar Khan, respondent No.6 had been appearing before Assistant Collector Il. Petitioners Nos.1 and 2 subsequently sold away their share in the land in dispute bearing Khata No. 83 in Mauza Wani measuring 194 Kanals and 13 marlas to petitioners No.4 to 8 and three others namely Allah Bakhsh, Kaura and Mitha sons of Hasan through Mutation No.595 dated 28-8-1970. Petitioners Nos.9 and 10 got the said land pre- empted and Mutation No.729 dated 24-1-1974 was sanctioned in their favour. Petitioner No.3 also sold his share of land to petitioners Nos.4 to 10 vide Mutation No.707, dated 28-3-1971. Muhammad Bakhsh, petitioner No.10 gifted 6 Kanals and 7 marlas of land to petitioner No.9. Petitioners Nos.2 and 3 sold their share measuring 10 Kanals and 3 Marlas from Khata No.45 of Mauza Wani to petitioner No.1 vide Mutation No.72, dated 24-8-1972. Thereafter petitioners Nos.11 and 12 purchased the entire land of Khata No.45 of Mauza Wani for Rs.7,625 from petitioner No.1 vide Mutation No. 736 dated 24- 9-1974. Petitioners Nos.13 and 14 became owners of land in Khata No.40 of Mauza Wani through Mutations Nos.750 and 751, dated 12-6-1977 sanctioned in their favour on the basis of pre-emption decrees.
3. Respondents Nos.3 to 5 filed Mukhbari application under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958 before the Chief Settlement Commissioner, Punjab on 29-6-1974. The said application was finally disposed of by the Addl. Commissioner (Consolidation) Settlement Commissioner Lands Multan, respondent No.1 vide order dated 30-6-1977.
4. ' At the very outset the learned counsel for the petitioner objected to the impleadment of Noor Nabi as respondent No.7 on the ground that he had no interest whatsoever in the disputed land.
Noor Nabi was impleaded as respondent in the writ petition vide order dated 11-8-1982 subject to all just exceptions. It was also mentioned in the interim order dated 15-6-1988 that the question of his impleadment as a necessary/proper party would be mooted at the time of final hearing of the case. The learned counsel for respondent No.7 states that his client is an occupant of the land adjacent to the disputed land in Mauza Mir Khar, tehsil Taunsa. He also claims that respondent No.7 had filed Mukhbari application against llahee Bakhsh, deceased, before the Chief Settlement Commissioner. The original record produced by the learned counsel of the Settlement Department does not contain any such application. Even respondent No.7 did not place any copy of the Mukhbari application allegedly submitted by him before the Chief Settlement Commissioner on the file of the writ petition. Respondent No.7 thus, has no interest, whatsoever in the land in dispute. He is neither a necessary nor proper party in the case. Hence the order dated 11-8-1982 allowing Noor Nabi to be impleaded as a respondent is recalled. Thus only respondents Nos.3, 4 and 5 are the contesting respondents. However, they did not file any written statement to controvert the facts embodied in the writ petition. The same can therefore, be deemed to be correct for the purpose of disposal of the writ petition.
5.1 have heard the learned counsel for the contesting parties as well as Mr. A.N. Qaisarani, learned counsel for respondents Nos.1 and 2.
6. There is nothing on the record to show that I1ahec Bakhsh, deceased, predecessor-in-interest of respondent No.6 had not migrated from India to Pakistan. The factum of his migration from India, submission of claim No. 156 and allotment of land to Ilahee Bakhsh, deceased and his death on 15- 10-1958 in Pakistan have not been controverted by respondents Nos.3 to 5 by filing their written statement in the Court. They cannot be permitted to rely on the written statement filed by respondent No.7 who is neither a proper nor a necessary party end his name has been ordered to be struck of from the array of the -cspnndcnt5 Mukhbari application dated 29-6-1974 was obviously filed against a dead person because Hahee Bakhsh had passed away on 15-10-1958. No procedings could have been taken on the said application as legal heirs of the deceased were never got impleaded at any stage of the proceedings. I am fortified in my view by the case of Muhammad Nawaz and 2 others v. Mian Abdur Razzak and 2 others (1984 (' L C 6) and Zuhra Bibi and 6 others v. Additional Settlement Commissioner Sheikhupura and 3 others (1983 CLC 708).
7. The Settlement Authorities had no jurisdiction to go into the question as to whether the claimant had or had not migrated from India or whether his claim was rightly approved by the Central Record Office. The Settlement Authorities were bound to act on the Fard Haqiyyat issued by the Central Record Room, regarding the entitlement of Ilahee Bakhsh. Mr. AN Qaisarani, learned counsel for respondents Nos.1 and 2 has fairly and frankly conceded the correctness of this proposition. He drew my attention to the judgment in the case of Mst. Ashrafi and another v.
Settlement Commissioner (Lands) Multan (PLD 1973 Notc 59 at p.81). It was held in the said authority that after determination of entitlement of a claimant the Settlement Authorities were under an obligation to act on the Fard Haqiyyat issued by the Central Record Office. In the case of Muhammad Yaqoob etc. v. Nazir Khan etc. (1983 SCMR 1252), it was held that the question as to whether the original claimant had migrated from India to Pakistan or not was related to the registration of claim under Registration of ('I;; m~ (Displaced Persons) Act 1956 and the Settlement Authorities were incompetent to deal with the same under sections 10 and 11 of the Displaced Person: (Land Settlement) Act 1958. Thus the impugned order was clearly bevond the jurisdiction of respondent No.1
8. In view of the above discussion I allow this petition and declare the impugned order to be without jurisdiction, without lawful authority and of no legal effect
9. The parties are left to bear their own costs.