' M. MAHBOOB AHMAD, CJ.---This appeal under clause 10 of the Letters Patent calls in question judgment dated 3-4-1968 passed by a learned Single Judge of this Court in Writ Petition No.625-R of 1965.
2. The facts necessary for the disposal of this appeal, briefly stated, are that land measuring 28 Kanals and 14 Marlas comprising Khasra Nos.2, 5, 15, 625/30 situated in village Nagaur, Tehsil Daska, District Sialkot was allotted to Fateh Muhammad, respondent No.5, who was holding mortgagee rights in lieu of the land abandoned by him in India.'It appears that the same land was allotted on 8th of March, 1962 to Qasim Khan, the predecessor-in-interest of the appellants by the Assistant Collector. On having come to know of this allotment, Fateh Muhammad filed an appeal which was dismissed by the Deputy Rehabilitation Commissioner on 28th of December, 1962. He then filed a revision against this order which too was dismissed by the Additional Rehabilitation Commissioner
(Land) on 15th of May, 1963. The second revision filed by him also met with the same fate at the hands of the Settlement and Rehabilitation Commissioner, Lahore on 30th of September, 1964. He thereupon filed Writ Petition No.625-R of 1965 praying that the allotment of the land to the appellants and the orders passed by the Rehabilitation Authorities be declared without lawful authority and of no legal effect. This writ petition was accepted by a learned Single Judge of this Court who was of the view that after the allotment of the land to Fateh Muhammad deceased, it could not have been transferred to the predecessor-ininterest of the appellants. It was also observed that the land was never cancelled from the name of Fateh Muhammad deceased and, therefore, it was not available for transfer to any other person. The contention of the appellants, who were respondents before the learned Single Judge, that Fateh Muhammad had failed to file Form M.G.E. And was, therefore, not entitled to its transfer, was repelled on the finding that the filing of the said form stood established from the record on the basis of entries in the relevant registers.
3. Aggrieved by the above judgment dated 3-4-1968 passed by the learned Single Judge, the appellants have come in the present Letters Patent Appeal.
4. The learned counsel for the appellants firstly contended that the land was never confirmed in the name of Fateh Muhammad, respondent No.5, but only a proposal to transfer the land was made in his favour and, therefore, the same could be validly transferred in favour of the appellants.
5. This contention of the learned counsel for the appellants has no force. It is clear from the perusal of the record that neither before the. Rehabilitation Authorities nor before the learned Single Judge was it ever disputed that Fateh Muhammad was not the allottee. On the other hand, the case throughout proceeded on the premises that although Fateh Muhammad was the allottee but as he did not file the M.G.E. Form, he was not entitled to retain the allotment. The contention now raised by the learned counsel for the appellants is clearly an afterthought and cannot be given any effect.
6. Furthermore, it is well settled that even if a proposal to transfer the land has been made in favour of a person, the land covered by that proposal being not available cannot be transferred to any one else till such time the proposal is taken out of the field. The allotment in favour of the appellants in the presence of the proposal, which is asserted to be an allotment by the respondent, is obviously not sustainable and that being so, the appellants would have no locus standi to question the right of respondent No.5 to retain the land in pursuance of para.7 of Settlement and Rehabilitation Scheme and the consequent instructions issued thereunder. Reference in this connection may be made to the decision of this Court in "Inayat Bibi etc. v. Assistant Settlement Commissioner and Chief Settlement Commissioner" reported as PLD 1978 Lah.
252.
7. It was next contended by the learned counsel for the appellants that the finding of the learned Single Judge that Fateh Muhammad, respondent No.5 had submitted the requisite M.G.E. Form is not sustainable.
8. This contention has also no force. In the report and parawise comments submitted before the learned Single Judge it was conceded by the Department that an entry showing that M.G.E. Form had been filed by Fateh Muhammad existed in the relevant register. It was, however, stated that the file of the case was not available. The conclusion drawn by the learned Single Judge from the above circumstances that as a matter of fact the Form had been filed by Fateh Muhammad and that the withholding of the record by the Department which admittedly possessed the same further strengthens this position cannot be objected to on any valid basis, especially when no material has been brought on record to controvert the assertion of respondent No.5 about his having filed the said Form.
9. It was further argued that since Fateh Muhammad was not a confirmed allottee he could not have filed the M.G.E. Form.
10. We have already held that Fateh Muhammad had been allotted the land in question and this position was never disputed before any forum whatsoever.
' Even otherwise the reliance of .The learned counsel for the appellants on the instructions issued in pursuance of para.7 of the Settlement and Rehabilitation Scheme does not admit of the interpretation that the Form could only be filed when there was a confirmed allotment in favour of a claimant. The inference can neither be drawn on an independent reading of para.2 of clause 7 of the instructions contained in Memorandum No.2195-62/3798 R(L) nor on a conjunctive reading thereof and para. 7 of the aforementioned scheme.
11. The only other contention of the learned counsel for the appellants was that the appeal and revision filed by respondent No.5 before the Rehabilitation Authorities having been dismissed as barred by time, the learned Single Judge could not have gone into the merits of the case.
12. We do not find any force in this contention either. As already observed, the allotment in favour of Fateh Muhammad was never cancelled by any authority and as such the land was not available for transfer to any other person. Any order of allotment pertaining thereto made in favour of any person whosoever including the predecessor-in-interest of the appellants had no validity in the eye of law and being non est, no question of limitation would arise in questioning the same and the same could be validly challenged by the respondent at any time when he came to know of it especially when the allotment questioned by respondent No.5 was without notice to him or for that matter without affording him any opportunity of hearing. Even otherwise the law is well settled that the limitation in such cases would run from the date of knowledge. No finding has been recorded by any of the Authorities hearing the appeal/revision that the same were barred by time from the date of the knowledge.
13. In view of the foregoing discussion, we find no merit in this appeal, which is accordingly dismissed with costs.