' This is a remanded case from the Lahore High Court vide order, dated 18-11-1985. Briefly the facts are that one Mueen-ud-Din respondent No,7 was allotted 361 Kanals 4 Marlas of land at Khata No,107 of village Kamoke, District Gujranwala. Later on, it was purchased by Tajamal Hussain, petitioner. Out of that area, the said petitioner through a sale-deed dated 19-3-1966 sold 112 Kanals 5 Marlas land to Riasat Ali and Asghar Ali, One Barkat Ali challenged that transaction through a pre-emption suit which ended in compromise to the tune of 32 Kanals vide decree dated 8-10- 1969, followed by Mutation No,14731 dated 11-10-1973. Subsequently the Additional Settlement Commissioner exercising powers of Chief Settlement Commissioner cancelled the original allotment of Mueen-ud-Din vide order dated 28-2-1978.
2. Thereafter, this land was allotted to Bootay Khan and Shaukat Ali, who sold major part of that land to Abdul Waked Khan and Muhammad Akhtar on 15-6-1978 and some land was given in exchange to them on 29-9-1980.
' The petitioners invoked writ jurisdiction against the cancellation of land vide order dated 28-2- 1978 of the Additional Settlement Commissioner/Chief Settlement Commissioner. The Lahore High Court vide order dated 18-11-1985 allowed the petition and remanded the case to the Member, Board of Revenue for decision.
3. The relevant portion of the remand order determining the terms of reference and scope of the present hearing is reproduced below:- "From the statement of facts made above, it would be quite clear that the point in issue is as to whether the allotments were made in favour of the predecessor-in-interest of the petitioners Mueen-ud-Din in village Kalyanwala, Tehsil Hafizabad, Sadhoke, Tong Uncha and Jandian, Thatha Mank, Sanda and Jandiala, Tehsil Gujranwala to the extent of 791, 150, 3500, 200, 200, 325 and 25 P.I.
Units respectively, all told (sic) for 4991 P.I. Units. If allotments in these villages were not made in the name of the petitioners' predecessor-in-interest Mucenud-Din as contended by the petitioners' counsel then obviously the basis of the order would be knocked out. In that event, the allotment in village Kamokc would be valid and sustained. If, on the other hand, the allotment had been made in the name of the claimant Mueen-unDin in the aforesaid 7 villages, then there will be no pending units for allotment of the area in question in favour of the vendor of the petitioners and the petitioners would have no title to derive from their vendor either. In order to resolve the controversy, it would be necessary to examine the RL-IIs of the aforesaid villages. For this purpose, the case is remitted to the learned Member, Board of Revenue/Chief Settlement Commissioner for getting the record of the allotments in the aforesaid villages and see if the allotments were made in those villages in the name of Mucen-ud-Din predecessor-ininterest of the petitioners and if that be so found, then the petitioners will have no entitlement to retain the land in question. If on the other hand, it is found that no allotment was made in those villages and the claim of the petitioners' predecessor-in-interest Mucen-ud-Din was not fully satisfied in the District of D.G. Khan, then the allotment made in the name of Mucen-ud-Din in Kamoke shall stand and the petitioners would be entitled to retain the land in question."
4. The learned counsel for the petitioners contended that the petitioners' predecessor-in-interest Mueen-ud-Din son of Yaqin-ud-Din Khan, a displaced person had a total verified claim for 36,000 P.I. Units, out of which 5000 P.I. Units were transferred to Mauza Datcwala, Tehsil and District Gujranwala. Since adjustment of all these 5000 units in one village was not possible, these units were transferred to different revenue estates of Tehsil Gujranwala and the following allotments were made there to Mucen-ud-Din Khan through his general attorney Abdul Bari Khan.
Sr.No, {{TABLE}} Name of village Units consumed. Date of Allotment Jandianwala Bagh 25 26-3-1962 Sadoke. 150 21-4-1962 Tong Uchha. 3307 9-4-1962 Dandian. 193 25-4-1962 Chak Rajada. 200 9-6-1962 Masanda. 325 4-7-1962 Kamoke 800 Preliminary proposed on 11-5-1962, confirmed on 1-3-1963.
Total 5000 ' The claim of Mueen-ud-Din Khan for 5000 Units was totally adjusted and exhausted on 1-3-1963 with the confirmation of the area in Kamoke.
6. The present dispute arose on account of the fact that on Khata No,444 of Village Kalianwala, Tehsil Hafizabad, an allotment (bogus according to the learned counsel) of 1133 P.I. Units appears in favour of Mueen-ud-Din Khan. The parameter of the present dispute as per remand order of the Lahore High Court dated 18-11-1985 is as to which of the two allotments is valid and sustainable. The petitioner Tajamal Hussain is Interested only in the land of village Kamoke which, he purchased vide Mutation No,929, sanctioned on 14-10-1963. The allotment on Khata No,1045 of village Kamoke was cancelled by the Assistant Commissioner/Additional Settlement Commissioner, Gujranwala, on the basis of allotment in village Kalianwala, in the absence of the petitioner. The petitioner's Writ Petition No,1050/R of 1978 was allowed on 18-11-1985 and the case was remanded to the Member, Board of Revenue. The petitioner is a vendee from the allottee Mueen-ud-Din Khan in village Kamoke whereas Abdul Wakil Khan and others, contesting respondents, are vendees from the allottee who secured allotment after it was cancelled from Mueen-ud-Din's Khata.
7. Continuing the learned counsel emphasized that Mueen-ud-Din Khan's 5000 units were adjusted and exhausted on 1-3-1963 when allotment against 800 units was confirmed in Kamoke. No unit of Mueen-ud-Dind Khan was pending satisfaction on 11-6-1968 when allotment in village Kalianwala appears to have been made. The learned counsel drew attention to observations of the Lahore High Court in paragraph 4 of the order that unless there were any pending units for allotment the vendee (i,e., the petitioner) would have no title to derive from the vendor. The same principle will apply to the allotment in village Kalianwala as no units after allotment in Kamoke were pending satisfaction. Khata No,444 of village Kalianwala shows that 1500 units were received there from village Chak Mahi, Tehsil Wazirabad, vide order of Additional Deputy Commissioner (Consolidation) dated 27-12-1967, whereas a report of the Assistant Commissioner, Wazirabad, categorically belies this fact and says that no Khata was ever entered in the name of Mucen-ud-Din Khan at Chak Mahi, and no units whatsoever from Tehsil Gujranwala were received, therefore, their transfer from Chak Mahi to Hafizabad Tehsil was out of question. The rest of the arguments of the learned counsel dealt with the factum of allotment in Kalianwala in greater detail as to the credibility of the attorney, affidavits of the proposing and allotting authorities on Khata No,444, copies of Khasra Girdawari showing that Mucen-ud-Din Khan or any one on his behalf was not in possession of the area allotted. The learned counsel concluded with the contention that it was clear that no case was made out for sustaining the allotment in Kalianwala whereas the allotment in Kamoke is perfectly legal and valid. In any case, allotment at village Kalianwala, besides being forged and fabricated being second in point of time (after the claim stood fully satisfied) must go. Reliance was placed on 1984 SCM R 1338 in this connection.
8. The learned counsel for respondents maintained in rebuttal that certificate of transfer of 1500 P.I.
Units showed that these units were validly transferred from Chak Mahi to Kalianwala. Some doubt has been created on the authenticity of Khata No,444 of village Kalianwala through manipulation and in this connection Mutation No,1113 would remove any doubt. One Muhammad Qasim had preferred a Mukhbari petition against Mueen-ud-Din Khan on 6-12-1969 which was dismissed in 1976 which would show that the allotment of Mueen-ud-Din Khan in village Kalianwala was valid.
Another Mukhbari application dated 13-2-1974 was moved against Mueen-ud-Din Khan before the Deputy Commissioner, Gujranwala. The affidavits of the proposing and confirming authority, Malik Alam Sher, Consolidation Officer (retired), Hafizabad and Mr. Abdur Rauf Khan, former Additional Deputy Commissioner (Cons.), Gujranwala, were not tenable at this stage that their signatures have been forged. The learned counsel stressed that the Lahore High Court's order is to the extent to examine whether the allotment in Kalianwala was made at the time of allotment was not important. It was only to the extent that if the allotment in Kalianwala was made, then the allotment in village Kamoke must go. Continuing the learned counsel stated that according to the Rehabilitation and Settlement Scheme allotments were to be made according to classification of special Jamabandi of 1947. An excess allotment to the tune of 899 P.I. Units in favour of Mueen-ud- Din Khan had been detected under the report of Mian Ehsan-ul-Haq, Secretary (Revenue)/Settlement Commissioner in which Kamoke was not covered.
9. The learned counsel for the respondents prayed that the allotment in village Kaliawala had been obtained by Mueen-ud-Din Khan in excess of his entitlement and therefore the respondent was entitled to the land in village Kamoke.
10. I have considered the arguments and perused the record the relevant RL-Hs and the reports of various officers. The enquiry conducted by Mian Ehsan-ul-Haq and referred to by the learned counsel for the respondents, shows as under:-{{TABLE}} Sr.No, Name of According Village to RL-II (PI Units) According to Special Jamabandi year 46-47 (P.I. Units) Increase Decrease
(PIUs) (PIUs)
1. Kalianwala 791 1133 342 2, Dandian. 193 209 16 Tong Uchha. 3307 3417 16 Chak Rajada 191 192 1 Masanda. 329 473 144 Jandianwala Bagh 27 28 1 Sadoke 151 436 285 Total: 4989 5888 899 ' It is obvious that neither the dates of allotments have been mentioned in this statement nor allotment in village Kamoke was taken into consideration.
11. From a bare perusal of the remand order dated 18-11-1985 it is evident that the following two points were to be determined:-
(i) to see if the allotments were made in those villages (in Gujranwala District) in the name of Mueen-ud-Din Khan, predecessor-in-interest of the petitioners, and if they were so found then the petitioners will have no entitlement to retain the land in question;
(ii) If no allotment was made in those villages and the claim of the petitioners' predecessor-in- interest (Mueen-ud-Din Khan) was- not-fully satisfied in Dera Ghazi Khan, then the allotment made in the name of Mueen-ud-Din Khan in village Kamoke shall stand.
12. None of the learned counsel of the parties has adverted to the second point, i,e. Whether the 5000 P.I. Units said to have been transferred from Dera Ghazi Khan District were validly transferred to Gujranwala. It is therefore necessary to look into this neglected or deliberately ignored aspect. B.
The concerned Deputy Commissioners were required to furnish reports regarding the allotments made in favour of aforesaid Mueen-ud-Din and further transfers, if any, to other districts. The Deputy Commissioner, Sahiwal, vide his letter No,192/SC/DSC/(L), dated 3-7-1991, reported as under:- "In view of your directions contained in the letter under reference, the record pertaining to allotment of land in favour of Mueen-ud-Din Khan son of Yaqeen-ud-Din Khan, has been thrashed out and found that 16618 Units have been settled in Sahiwal District, while remaining Units have been transferred to other districts. The details of settled Units and transferred Units, separately, are given hereunder:-{{TABLE}} Name of Chak No,/ Units Date of District Mauza. Settled. Confirmation. Sahiwal 97/9L 6711 10-10-1951 17/14L 9-10-1951 149/9L 2000 10-1-1961 61/4R 2304 4-9-1965 Okara 12/1AL 1003 Depalpur 2600 2000 Total 16618 Name of District Date of transfer Units transferred. Gujranwala. 2-12-1961 5000 Sheikhupura 2-12-1961 5000 Sheikhupura 21-4-1962 800 Sheikhupura 25-10-1962 2000 8-1-1963 1502 Total: 9302 Bahawalnagar 27-2-1961 600 (Chak 317, Tehsil Fortabbas)
Multan 5-9-1961 (Chak No,445-EB Tehsil Vehari).
D.G. Khan 7-9-1961 35000 Note: 500 Units for Razia Niaz were found without signatures and without date with pencil. Total
14. From this report it is clear that 5000 Units were transferred to Gujranwala district on 2-12-1961 and on 7-9-1961 3500 Units were transferred to District D.G. Khan. The Deputy Commissioner, D.G.
Khan vide his letter No,2458/AC(S)/RSO, dated 4-9-1991, reported that no units were transferred from D.G. Khan District to Gujranwala District. However, since D.G. Khan was split up into two districts i,e. D.G. Khan and Rajanpur, therefore a report was also obtained from the D.C. Rajanpur who stated vide his No,630/NTO, dated 18-8-1991 that allotment of 1414 Pah was made in tehsil Rajanpur whereas 1556 units situated in tehsil Jampur were subsequently cancelled due to double allotment. It thus follows that no units were transferred from D.G. Khan district to Gujranwala district at any stage and therefore the answer to the second observation in the remand order regarding full satisfaction of the claim of Mucen-ud-Din in D.G. Khan district is in the negative. This now brings us to the next point i,e. Allotment made in Gujranwala district.
15. It has already been seen that 5000 units were transferred to Gujranwala district from Sahiwal district on 2-12-1961. Assuming that these units were validly transferred, in the absence of any evidence to the contrary, then the sequence of allotment in Gujranwala district has to be examined. The respective contentions of the learned counsel regarding allotment of these 5000 units have been reproduced above which show that these units were fully satisfied till 1-3-1963 when the last allotment in village Kamoke to the extent of 800 units was made. Any allotment obtained subsequently i,e. The One made on Khata No,444 RL-II of village KalianWala, tehsil Halizabad on 11-6-1968 was thus made without any pending entitlement of Mucen-ud-Din in district Gujranwala. A perusal of the aforesaid Khata on RL-II shows that it has been tampered with liberally and without any inhibition. The allotment is thus apparently forged and fabricated.
However, since the allottee/vendee/person in possession has not been heard therefore this part of the case i,e. The cancellation of allotment in village Kalianwala will be taken up separately for hearing the parties.
16. The allotment in village Kalianwala is to be excluded from the valid allotments obtained by Mucen-ud-Din Khan in Gujranwala being subsequent in time to the allotment made in Kamoke in accordance with the dictum laid down in 1984 SCM R 1338 and the time honoured practice followed by the Settlement Authorities in determining the cases of double allotments whereby the earlier 'allotments have always been treated to be valid and correct, other things being equal, as against the later allotment in terms of time. The allotment in Kalianwala made in the year 1968 has thus to be excluded from the units calculated in Mian Ehsan-ul-Haq, Secretary (Revenue)/Settlement Commissioner's (in-complete) finding reproduced in para. 10 of this order.
' This would reduce the allotment of Mucen-ud-Din from 5888 (minus 1133) to 4755 PIUs according to the special Jamabandi of 1946-47, and in terms of RL-IIs from 4989 to 4198 PUN. If 800 units in Kamoke allotted on 1-3-1963 are added according to RL-II, the total would come to 4998 which is within entitlement of 5(X)0 PIUs. However evaluating these 8(X) units according to the special Jamabandi would raise the total allotment in Gujranwala district in favour of Mucen-ud-Din to 5555 units i. e. An excess of 555 PIUs. This apparent excess when distributed over the entire range of allotments in Gujranwala (excluding Kalianwala) comes to 557 units in Dandian, Tong Uchha, Chak Rajada , Masanda, Jandianwala Bagh and Sodoke, without affecting the allotment made in village Kamoke which is thus found to be without any blemish. Indeed the incomplete enquiry of Mian Ehsan-ul-Haq, Settlement Commissioner (Headquarters) is silent on this point which means that the allotment in Kamoke was not in excess of entitlement otherwise it would have duly been commented upon. For several reasons such as the lapse of time since the allotments in these six villages and these (allotments) have not been questioned for a long time etc, I do not propose to examine this issue any further here.
17. The upshot of the foregoing analysis is that there is nothing wrong with the allotment made to Mr. Mueen-ud-Din Khan at Khata No,107 RL-II of village Kamoke, District Gujranwala. The order of the Additional Settlement Commissioner exercising power of the Chief Settlement Commissioner, dated 28-2-1978 is, therefore, set aside and the allotment of Mr. Mueen-ud-Din Khan at Khata No,107 RL-11 of village Kamoke is restored.
18. The subsequent allotment of the land in dispute to Bootay Khan and Shaukat Ali automatically stands cancelled as this area was not available for allotment. However since the matter has been under litigation, therefore, Bootay Khan and Shaukat Ali's claim becomes pending proceedings within the meaning of section 2(2) of Act XIV of 1975. It is accordingly ordered that they shall he allotted any available land against their pending claim. -
19. The orders in this case were reserved for ascertaining the overall position of allotments to Mr. Mueen-ud-Din Khan in the Province and shall now be communicated to the parties.
20. A show-cause notice shall also be issued to the allottecs/persons in possession of the land said to have been allotted to Mr. Mucen-ud-Din Khan in village Kalianwala, Tchsil Hafizabad, District Gujranwala at Khata No,444 of RL-II as to why the allotments should not be cancelled.
' Heard. The clerical/typographical mistake is corrected, as prayed for, at page 1 and at page 11 of my order dated 12-10-1991. Khata No,107 RI-11 occurring therein will be read instead as Khata No,1045 RL-ll.