' This writ petition makes grievance of the fact that the petitioners-locals' interest in the land held in a joint 'Bata' alongwith non-Muslims was not partitioned and, indeed, was allotted to respondent No,1 against the provisions of paragraph 15 of the Rehabilitation Resettlement Scheme. It was explained that the matter had been taken to the Additional Settlement Commissioner who by his order dated the 28th of August, 1969, had directed partition of the 'Bata' by the lower officers of the hierarchy but till now it was not acted upon in spite of the fact that an observation to that effect was made by my learned brother late Mohammad Zafarullah, J. In his judgment dated the 21st of December, 1985, rendered in Writ Petitions Nos.269/R-83 and 122/R-85.
2. Counsel for the petitioners stressed that the order dated the 28th of August, 1969, of the Additional Settlement Commissioner will be deemed to be still pending and that it has to be referred to the Notified Officer for final disposal of the case. He relied upon Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore, etc. (PLD 1974 SC 193 (196) wherein `shamlat deh' constituted joint Ihata' between Muslims and non-Muslims was held to be not transferable to claimants without the same was partitioned in accordance with the Scheme referred to above.
3. Counsel for respondent No,1 present on watching brief, was allowed to address the Court on his behalf. He relied upon partition proceedings earlier carried out by way of order dated the 22nd of September, 1971, wherein the Tehsildar in his capacity as Assistant Settlement and Rehabilitation Commissioner had actually partitioned this 'Bata' giving `khasra' Nos.956, 958, 971 and 960 exclusively to the Chief Settlement Commissioner as a representative of the evacuee. The original record of the said order is available in the Court and was, in fact, examined by both the counsel.
4. Learned counsel for petitioners assails its validity on the ground that it was passed without notice to them and further that it was cancelled subsequently by order dated the 31st of August, 1972 (page 36-D). He relied upon Janimal, etc. v. The Deputy Rehabilitation Commissioner (D.C., Sanghar), etc. (1989 CLC (Kar.) 551) in support of the contention that any partition without notice to the locals was bad in law. He next submitted that the partition evidenced by the order dated the 22nd of September, 1971, was made without keeping in mind types of land involved in the entire `shamlat deh' and that ordinarily it could have been made either possessionwise, or kindwise or in any other equitable manner so that none of the parties may be put to any loss or prejudice. He placed reliance upon Ismail Khan v. Shahzad Hussain and others (1984 SCMR 599) claiming that ascertainment of value of various kinds of land involved in the process of partition had to be essentially kept in view, but in this case the record did not reveal if this requirement was observed.
Still further, he urged that Rehmat Ali respondent was the son of Amir Chand son of Bodhna and not of Akkay Singh who was son of Adhay Band. This way, according to him, Rehmat Ali was not a genuine claimant of the land.
5. I have perused the original file. By order dated the 29th of May, 1970, all co-owners in the `Khata' were ordered to be summoned. The next order shows that only the vendees from the allottees were present before the Tehsildar who made the partition by giving the four `Khasra' numbers mentioned above to the Chief Settlement Commissioner and the rest to the local owners. Counsel for the respondent in reply maintained that once there was a direction to issue notice, the presumption would be that the same was complied with and that it was in pursuance thereof that those who took interest in the proceedings, appeared before the Tehsildar on the next date of hearing. He submitted that there was no compulsion for all land-owners to come and that the phrase "nomination" used in para. 15 of the Scheme suggested that such notice may be given to anyone of them as nominee for others and that third person would satisfy the above-quoted clause of the Scheme making non-appearance of others inconsequential. He next claimed that the provisions of para. 15 of the Scheme were directory inasmuch as the only object thereof was to keep separate the land representing the evacuee's interest so that it could be handed over to the transferees. He strongly expressed that the objections were peripheral besides being raised in the year 1989 to assail the order passed by, the Tehsildar on the 22nd of September, 1971. In his exclusive jurisdiction under the repealed laws and that it would not be within the province of the High Court to go into them. Replying to the mode of partition kindwise, he canvassed that `ghair mumkin khola', `raasta' or `Banjar' were the worst types of land which were set apart for claimants whereas better kinds of the soil were left for locals whose interest had been amply safeguarded.
Elaborating this argument he asserted that the soil allotted to the petitioners was also allotted to twenty other claimants and that reversal thereof would adversely affect them without impleading them as party here. Finally he assailed maintainability of the writ because it did not disclose how the petitioners were prejudiced by the order of the partition and secondly an appeal brought by some of them against it was still pending.
6. It was a case taken even to the Supreme Court in the first round, but the transfer of the `Khasra' numbers in question in favour of respondent No,1 Rehmat was upheld. The rule evolved in Syed Mir Ahmad Shah v. Pakistan and others (1986 SCMR 1200) was that decision of a lis by the Supreme Court in any kind of proceedings would operate as res judicata. There was no reason why not be apply the same to the present case. It will have the effect of precluding the petitioners from assailing it once again on any ground whatsoever including want of notice as to partition, its mode namely soil, possession or valuationwise, or even the respondent's pedigree as an heir of Akey Singh or Ami Chand. Besides, there was no gainsaying the fact that partition of the Khata in question was ordered on 22-9-1971, whereas the present writ petition was filed on 5-1-1989, that is eighteen years after the order of partition was passed. Further, the writ questions vires also of the order dated 24-5-1983 of the Additional Settlement Commissioner (Annex: 'D') at page 19, whereby sale of the area in dispute in favour of the petitioners was cancelled after reviewing the orders dated 27-3-1968 and 20-6-1968. In fact the order dated'20-6-1968 was held to be a forgery and consequently the former dated 27-3-1968 upon which it was based was also set aside. Laches were not explained.
7. The petitioners were expected to be satisfied by the decision rendered by the Supreme Court, but they did not hesitate to further challenge various orders passed in either 1971 or 1983 by the present writ filed in 1989. Obviously a long time was taken to file the writ petition. In Settlement Authority through the Chief Settlement Commissioner, Lahore and another v. Mst. Akhtar Sultana (PLD 1976 SC 410) delay of six months was held fatal. No cogent reason was shown to entertain it too late, all the more when they themselves had been litigating upto the Supreme Court. Long lathes suffered by them would be a hindrance in their way in questioning legitimacy of either the transfer order or the partition of the land made between Muslims and non-Muslims.
8. Even otherwise, absence of notice of the partition was not adequately established. The original record disclosed that all concerned were directed to be given notice. Para. 15 of the West Pakistan Rehabilitation Settlement Scheme was invoked to assail the manner of partition adopted by the Tehsildar. It is to be noticed that this para applies "where there is no Hissadari Qabza" and secondly it does not contemplate a prior notice to the land-owners. Instead, it postulates passing an order in writing by a Rehabilitation Authority; sending its copy through registered post to the other recorded co-sharers or such of them as the Rehabilitation Authority may mominate in this behalf, and lastly arranging its publication in such manner as it may deem fit. Communicating a copy of the order through registered post was undeniably a post facto step, having nothing to do with service of a prior notice upon all the co-sharers. Consequently, prior notice was no requirement of the scheme and will have no application to the partition under consideration, nor could it be set aside because the co-sharers were not so served. The order sheet shows that upon receiving notice, the petitioners appeared before the Tehsildar. Their appearance for that purpose was just that of nominee, whom the Department thought fit for such nomination. Moreover, it was a land in Hissadari Qabza to which the aforesaid para of the scheme could not possibly apply. All arguments based upon this ground would fail.
9. The respondent was allotted four khasra numbers on the basis of his Hissadari Qabza. It clearly suggested that the partition was being made possession wise which obviously was an accepted mode of partition. The petitioners could not make out a case for valuation, and hence giving four khasra numbers to the respondent was held adequate partition of the estate. This may have been the reason why there was no reference to other areas which possibly may be consisting of better soil and were left to the petitioners or their predecessors in assertion of their own title. Be that as it may, partition based upon Hissadari Qabza was not in contradiction of any law, and was indeed a key-mode usually applied in partitioning joint holdings. Land Record Manual, Ch. 18 p.653 permits partition by this mode. The land in dispute was only a Khola while the respondent was one of twenty-one allotters thereof. If the partition was reversed, all those twenty families will be adversely affected, and instead of settling them, they would be unsettled. The authorities cited on behalf of the writ petitioners are not much relevant.
10. There is no substance in the writ petition and the same is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.