The dispute in this case is about land measuring 7 kanals and 12 marlas comprised of Khasra No. 3614 (area 5 kanals and 14 marlas and Khasra No. 3664 (area 1 kanal and 18 marlas) situated in village Har Chuhar Dhab, Tehsil Chakwal, District Jhelum. The fields hereinbefore mentioned were allotted to Wali-Ullah Khan respondent No. 3 alongwith the other land on 23-12-1959 against his verified claim for land left in India in the non-agreed area. A perusal of Annex. "A", which is a copy of the R.L. VII, shows that some revision of review of allotments took place as a result whereof on 18-3- 1960 the fields hereinbefore mentioned were formally re-allotted to respondent No. 3 and in implementation thereof he was issued aparchi. Taqseem on 18-10-1960 which has been filed in original in the form of Annex. R/1.
2. It appears that on 28-12-1960, Martial Law Regulation No. 84 was promulgated which was, as is well-known, reconstituted on 23-10-1961. In pursuance of the aforesaid regulations on 18-10-1961, fresh allotment was made to the said respondent, in which, unfortunately, the two fields, hereinbefore mentioned, did not figure even though the said respondents had been in possession thereof uptill then. The position remained quiet for sometime till 27-5-1962, when the two aforesaid fields were allotted to petitioner No. 1 who sold away the same to petitioner No. 2 somewhere in 1964. Respondent No. 3 Wali-Ullah Khan on coming to know of the aforesaid defect in his own allotment or of further allotment to petitioner No. 1, firstly, applied for review, but then filed an appeal impleading the present petitioners 1 and 2 therein as respondents. The appeal was accepted by the D.S.C. On 28-10-1.965. He was of the view that respondent No. 3 had remained in possession of the fields in question uptill 18-10-1961 and it was not clear on the record as to why the present fields were taken away from him or were not contained in the allotment which on that date was made in his name. He further gave a finding that the said respondents had, however, remained in possession of the aforesaid fields and considering him as entitled to retain those fields, cancelled the allotment which had been made in favour of petitioner No. 1 and directed that the land in dispute should remain with the said respondent No. 3.
3. Petitioner No. 1 alone filed a revision in which, however, later on petitioner No. 2, namely, the vendee was also impleaded but without any success as the same was rejected by the learned Settlement Com--missioner on 14-12-1966 with the result that the land in dispute was allowed to remain with respondent No. 3. The petitioner has come up in writ petition against the aforesaid orders and proceeding to this Court.
4. The first point argued by the learned counsel for the petitioners was that the land in dispute had been cancelled from the name of respondent No. 3 on 18-10-1961 in this way that it had not been included in his fresh allotment which was made at that time. Thereafter, on 27-5-1962, it was allotted to petitioner No. 1. It was argued that at the time when it was allotted to petitioner No. 1, namely, on 27-5-1962, the land was not in possession of respondent No. 3 was available for allotment. In this way, it was argued that there was no defect in the allotment which was made to the petitioner. The contention has no merit. The finding of the Settlement authorities is that respondent No. 3 had throughout remained in possession of the land in dispute. Another point to be noticed in this respect is that it is a common ground that right from 23-12-1959 uptill 18-10-1961 the land in question had remained in possession of respondent No. 3. It is not clear as to how suddenly on 1 d-id-1961, it was taken away front the temporary allotment of respondent No. 3 acid was expressly excluded froth the; area which had at that time been allotted to him There is neither any reasoning contained in the order, dated I8-10-1961, nor any other material on the present record to justify the aforesaid action of the Assistant Settlement Commissioner. This point was attended to by the learned D.S.C., in appeal and he was of the opinion that in the circumstances hereinbefore explained the exclusion of the area from the allotment of respondent No. 3 on 18-10- 1961 was not justified. The ab initio exclusion, in these circumstances, thus being without lawful authority, no superstructure could he raised on that by petitioner No. 1 by procuring its allotment oil 27-5-62, That the fields in question had remained in possession of respondent No. 3 is also borne out from another fact and that is that it has not been demonstrated before me that the land which had been obtained by the said respondent in this village or elsewhere would exceed his total entitlement in any manner if the present fields numbers are allowed to remain with him.
5. The next point argued by the learned counsel for the petitioners was that the appeal filed by respondent No. 3 before the learned D.S.C., was time-barred and, therefore, no relief in the aforesaid belated appeal could have been given to the said respondent. The point of delay was duly attended to by the authorities concerned who found the explanation rendered by the said respondent as sufficient and it is not possible for me to disturb their finding in that respect who attended to all facts and circumstances of the case in that behalf.
6. Another point argued was that no claim or Units of respondent No. 3 were pending in this village at the time when the allotment in favour of Petition No. 1 was made on 27-5-1962. In this way, it was suggested that his total units having already been exhausted, the land in dispute could not have been taken away from the petitioner so as to confer it on the said respondent. I have already dealt with this matter though in another form and have held that it has not been demonstrated to me that by giving the land in dispute to the respondent, his entitlement would exceed in any manner.
The point, therefore, that on 27-5-62, the total entitlement of respondent No. 3 stood fully exhausted would mean that it was fully exhausted after including the land in dispute. As already mentioned, respondent No. 3 in his written-statement has submitted that his total entitlement was worth 3766 P. I. Units, out of which land worth 1158 P. l Units had been obtained by him in Village Harij, Tehsil Chakwal, District Jehlum. The land worth 1624 P. I. Units had been obtained in Village Mangwal, Tehsil Chakwal, and land, worth 621 P. I. Units was obtained in District Multan, This would eave respondent No. 3 with a balance of 363 P. I. Units for which he could claim land in this village. From Annex. B, it appears that the land settled on respondent No. 3 was only worth 343 P. I. Units. This would mean that the entitlement of the respondent in this village was still short by 20 P. I. Units which would be made good if the land in dispute could be allowed to remain with him. The suggestion that at the time when allotment was made to the petitioner No. 1 on 27-5-62, the entitlement of the respondent in this village stood satisfied is true in the manner in which I have demonstrated above and as has been explained by the contesting respondent and not in any other way-which at least has not been suggested to me at the Bar by the petitioners.
7. The present writ petition is liable to be dismissed on another ground as well and that is that respondent No. 3 Wali-Ullah Khan died on 20-7-1969. The writ petition has been filed by two persons, namely, (1) Syed Siraj-ul-Hassan and (2) Syed A.I Madat. No application for setting aside the abatement under the Code of Civil Procedure or for condonation of delay was filed by any of the petitioners. Anyhow, one application being C. Misc. No. 2/1970 was filed on 29-3-1970 under Order I, rule 10 read with section 151, C. P. C. For deleting the name of respondent No. 3 and substituting the name of his son Ayub Khan and daughter Mst. Sughran who have contested this case through their learned counsel. The application was accompanied by an affidavit of one of the petitioners, namely, Syed Siraj-ul-Hassan, which reads as follows:-- "(1) That the above-noted writ petition is pending in this Hon'ble Court.
(2) That the respondent No. 3 a long time ago has migrated from Chakwal alongwith his entire family to Multan District. The petitioners tried their level best to find out his whereabouts and about a fortnight ago they knew that his family members have been settled at Shjabad, Multan. The petitioners have also come to know that the respondent No. 3, has since been dead. After making hard efforts the petitioners have come to know about the names and addresses of his legal heirs which are as under :-
(1) Ayub Khan Lodhi son of Wali-Ullah Khan resident of Mohallah Purani Chandmari near Municipal Park, Shujabad, District Multan.
(2) Mst. Sughran daughter of Waliullah Khan wife of Ch. Khurshid, resident of Village Basti Dad, P. O.
Shawala Khooh, District Multan.
(3) That on account of this litigation the respondent No. 3 had migrated from Chakwal so that his whereabouts could not be known. After putting hard labour and making great efforts the petitioners have now come to know about his whereabouts and the names of his heirs. After his death the above mentioned persons are necessary and proper party in this case."
The prayer made in the aforesaid application was granted subject to all just exceptions on 19-10- 1970 and the newly added respondents have taken exception to it by urging that as the writ petition had abated and as no application for setting aside the abatement or for condonation of delay was filed, therefore, the writ petition should be dismissed on that count. I think there is force in this objection. The affidavit reproduced above is quite vague. Though there were two petitioners but affidavit was filed by only one of them and it does not disclose the precise date which they learnt of the death of respondent No. 3 or of the whereabouts of his legal heirs, from where, from whom and how and nor does it explain as to how much time they spent and where. It is well-settled that in such cases each day of limitation is to be explained. The affidavit reproduced above does not specify these requirements. Its apparent tenor shows that a fortnight prior to the date of the affidavit, they had learnt that the family members of respondent No. 3 had been settled at Shujabad and Multan but even thereaftr, it does not explain as to how each day of that fortnight was spent or utilised by them. Moreover, I am really doubtful, as to whether an application of the kind which was filed by the petitioners without asking for setting aside of the abatement, can really serve the purpose or revive the case which had already abated long ago. An objection to this effect had been taken by the newly added respondents in their written reply which was filed in this Court on 28-1-1971 but uptill now no steps were taken to make any amends and rather the stand taken before me was that whatever was done by the petitioner was quite in accordance with law and that in writ petitions C. P.C., did not apply and as such there could be no abatement. Reliance for this proposition was placed on Chand and others v. Abdul Ghaffar and others (PLD 1965 Lah.
596"The stand taken by the petitioners is not correct. The recent judgments have held to the contrary. See Sardar Noor Hussain v. Chief Settlement Commissioner, Lahore and 2 others (PLD 1973 Lah. 809) decided with reference to Mukha and others v. Rifat Pasha Sheikh, C. S. P., Member, Board of Revenue and others (1972SCMR514) and Abdul Ghani v. Settlement Commissioner and 2 others (1971SCMR98which in its turn refers to Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1Also see Mst. Anwar Begum v. The Settlement and Rehabilitation Commissioner (Land), Multan Division and 3 others (PLD 1973 Note 85T would consequently hold that the objection raised by the respondent is sound, the writ petition had abated long ago which could not be cured by simply deleting the name of the dead person or adding the names of the contesting respondent under Order I, rule 10 and section 151, -C. P. C., application for which purpose even was filed long after the period of limitation prescribed by law relevant in the context. I would dismiss the writ petition on this ground as well which should be considered as an independent ground by itself.
8. The result is that this writ petition has no merit and is dismissed leaving the parties to bear their own costs.