' Brief facts of the case are that Mst. Rahim-un-Nisa and Dr. Ahmad Jamal Ullah (wife and husband), refugees from Hyderabad Deccan filed their claims for rural land which were verified for Rahim Yar Khan. Subsequently, they got transferred their claims from Rahim Yar Khan and got allotted urban garden measuring 42 Kanals 17 Marlas at RL-II Nos.2 and 164 Kanals 17 Marlas at RL-H No,1 village Bindra Tehsil and District Bahawalpur under Chief Settlement Commissioner's Memo No,975-60/1-R(P), dated 20-2-1960. Later on one Khan Bahadar son of Ghazi-ud-Din through Shan Ali filed a Mukhbari application under sections 10 and 11 of the Displaced Persons (Land Settlement)
Act alleging that allotment of the aforesaid persons was illegal and after cancellation thereof that his urban garden entitlement may be satisfied there. The allotment was cancelled on 15-3-1977 from the names of these two allottees and was instead confirmed on 15-3-1977 in the name of Khan Bahadar at RL-II Nos.12 and 13. A writ petition was filed by Mst. Rahim-un-Nisa in the Lahore High Court against the second confirmation the land in question and the case was remanded with the consent of the parties to the Chief Settlement Commissioner/Member (Revenue) for deciding it himself.
2. The learned counsel for Khan Bahadur maintained in the written arguments that Mst. Rahim-un- Nisa d/o Abdul Ghani and her husband Dr. Ahmad Jamal Ullah s/o. Abdul Razzaq were refugees from non-agreed area i,e, Hyderabad Deccan who filed claims in Q.P.R. Their claim for rural agricultural land was verified for Rahim Yar Khan but no entitlement certificate for urban garden was ever issued in their favour by the Central Record Office. Dr. Ahmad Jamal Ullah was then working as Deputy Director Agriculture, Rahim Yar Khan District. In 1962 he was transferred to Bahawalpur. In the meanwhile Chief Settlement Commissioner had issued Memo. No,975-R-60-I.
R.P, dated 20-2-1960 which provided that the displaced persons holding verified rural claims who were allottees of urban land and were in possession of the allotted area five years prior to 1960 could claim confirmation of the urban land against rural claim. Taking undue advantage of the above concession, Dr. Ahmad Jamal Ullah allegedly got 2500 units transferred from Mauza Gainian, Tehsil Khanpur, District Rahim Yar Khan to Bahawalpur. 1050 units of Mst. Rahim-un-Nisa were also similarly got transferred. Dr. Ahmed Jamal Ullah was himself the Member of Garden Allotment Committee and managed allotment of garden measuring 20 acres 4 Kanals 17 Marlas in Mauza Bindra in his favour -on 27-5-1963 and a garden measuring 5 Acres 2 Kanals and 15 Marlas in favour of Mst. Rahim-un-Nisa on 27-5-1963 in the same revenue estate. This was in addition to urban garden on an areas measuring 14 acres approximately in favour of the both in mauza Karna, Tehsil Bahawalpur. Khan Bahadur filed a mukhbari application on 14-2-1974 under sections 10 and 11 of the Displaced Persons Land Settlement Act, 1958 against the allotment of 'urban garden in mauza Bindra which was heard and decided vide order dated 15-3-1977 passed by ADC(G)/CSC and both the allotments were cancelled. That order was challenged by Rahim-unNisa in Writ Petition No,48/R of 1977 which was remanded vide order dated 3-12-1983. The learned counsel emphasized that Dr. Ahmad Jamal Ullah and Mst. Rahim-un-Nisa had no claim for urban garden and the former exploited his official position as Member of the Garden Allotment Committee.
' None of the two allottees had ever been in possession of the allotted area five years prior to 1960 and therefore the concession provided in 1960 instructions was not available to them. The letter of allotment in their favour dated 27-5-1963 of the Garden Allotment Committee provided that the allottees will not be entitled to the proprietary rights till final approval of the Chief Settlement Commissioner. No such approval was ever accorded by the Chief Settlement Commissioner. The rural claims of Dr Ahmad Jamal Ullah and Mst.Rahim-un-Nisa were transferred from Rahim Yar Khan District to Bahawalpur District but the entry of transfer of claim does not show under whose orders the claims were transferred. Inter-district transfer of units could only be done under the orders of the Chief Settlement Commissioner. The claim was therefore transferred unlawfully and no valid allotment could be claimed. The name of the village from where Rahim-un-Nisa's claim was transferred has also not been indicated. The allotment of Dr. Ahmad Jamal Ullah was in excess of the prescribed limit. The so-called allotment in favour of the two allottees, starting from the so- called transfer of claims is the clear result of fraud and misrepresentation and misuse of official position by Dr. Ahmad Jamal Ullah as Member of the Garden Allotment Committee. No mukhbari application regarding the allotment of land in Mauza Bindra was filed earlier or decided. It was prayed that the allotment of the garden area in favour of Dr. Ahmad Jamal Ullah and Mst. Rahim- un-Nisa may be cancelled and resumed area may be allotted to Khan Bahadur against his verified claim for urban garden pending satisfaction.
3. The learned counsel for Mst. Rahim-un-Nisa and Dr Ahmad Jamal Ullah maintained in rebuttal that the mukhbari application under disposal was actually filed against Mst. Rahim-un-Nisa only as admitted by A.D.C/Additional Settlement Commissioner, Bahawalpur, in reply to para 7 of the parawise comments filed by him in Writ Petition No,28-R/78/B.W.P. And that the name of Dr. Ahmad Jamal Ullah was interpolated after target date of 1-7-1974. Only one Q.P.R. No,2639 is mentioned in the mukhabari petition against Mst. Rahim-un-Nisa. The name of Dr. Ahmad Jamal Ullah has been added subsequently with different ink and in different handwriting and several cuttings and erasings made in the petition are also visible. Since no proceedings were initiated on mukhbari application prior to 1-7-1974 it was not a pending proceeding as per Repealing Act No,XIV of 1974.
First regular proceeding in this case was started on 11-6-1976 and hence the case cannot proceed.
The learned counsel placed reliance on judgment of Lahore High Court dated 5-5-1990 passed in Writ Petition No,434-R of 1983. A similar mukhbari application against the respondent was dismissed by the Lahore High Court in Writ Petition No,227-R of 1973 by order dated 1-4-1975. Hence the matter is hit by res judicata. The learned counsel placed reliance on 1981 SCM R 1180, 1989 SCM R 452 and 1977 SCM R 208. The learned counsel further maintained that the temporary allotment was made as far back as on 2-6-1956 and was confirmed in 1963. The respondents being in possession as allottee of the area for more than five years were held to be entitled to this allotment under revised para 24 of the Supplementary Scheme No,2. The learned counsel placed reliance on 1987 SCM R 2059 and contended that even otherwise the definition of land as given in the Displaced Persons (Land Settlement) Act, 1958, fully covers it. Correction Slip No,88-2 of Supplementary Scheme No,2 and circular letters dated 26-6-1963 and 1-7-1964 fully support the plea of the respondents. Para 10 of the West Pakistan Rehabilitation Scheme and PLD 1965 SC 37 further support the respondents on this point. The respondents being claimants from Hyderabad Deccan there is no limit of allotment in the case as provided in para 13 of MLR 89. Khan Bahadur complainant is a fictitious person having no claim left as per detail of his allotment supplied by the Deputy Commissioner, Bahawalpur. Although there are no allegations that the claims of respondents are bogus or exaggerated yet this issue is outside the jurisdiction of the Court under the nature of proceedings under sections 10 and 11 as held in 1983 SCM R 1252. The land in dispute of Dr. Ahmad Jamal Ullah was gifted by him to his sons in 1963 who have not been made party in the mukhbari application. The land in dispute had been acquired by the Housing Department and the mukhbari petition cannot be processed.
5. The learned counsel for Khan Bahadur in written rejoinder further contended that no proof of temporary allotment dated 2-5-1956 has been adduced by the respondents. The so-called confirmation order was not only wholly illegal but also conditional. Their case does not fall within the correction slip dated 20-2-1960 because on the said date Mst. Rahim-un-Nisa etc., were not in continuous possession for five years. Copies of Jamabandi (1957-58) and the khasra girwadari for 1955 to 1960 do not contain the names of Mst. Rahimun-Nisa and Dr. Ahmad Jamal Ullah. Entries in Jamabandi of 1961-62 are therefore manipulated. The competency of the Chief Settlement Commissioner to regularize urban allotments against rural claim was subject to the correction slip dated 20-2-1960. No such orders have ever been passed by the Chief Settlement Commissioner.
The judgment of the High Court in Writ Petition No,227/R of 1973 relates to Tehsil Chishtian and the informant was one Mohkam Din. This judgment has no relevancy to the present dispute. The donees from Dr. Ahmad Jamal Ullah had separately filed Writ Petition No,28/R/78 which also stands remanded to this Court. In any case if Dr. Ahmad Jamal Ullah's title to the land is not established the donees cannot derive any title from him. The allegation that mukhbari application was antedated is wholly unsustainable. The first order on this was recorded on 15-2-1974, the second on 6-3-1974, third on 26-3-1974 and the fourth on 17-4-1974 and therefore it was a pending case. The allegation that the name of Dr. Ahmad Jamal Ullah was added subsequently is totally baseless because not such plea was ever taken by Dr. Jamal Ullah earlier: Shan Ali is the duly constituted attorney of Khan Bahadur and the objection of the respondents is correct was earlier heard during the hearing of Writ Petition No,48/R/77.
6. The learned counsel for the Settlement Department in the written arguments explained the conditions, eligibility for allotment of urban gardens against the rural claims and said that the displaced persons from Hyderabad Deccan were exempted from any slap-cut under Martial Law Regulation 89 (1989 wrongly mentioned). He also referred to 1987 SCM R 2059 which permits the retention of all such allotments for which sanction of the Central Government was not received.
7. I have considered the arguments and perused. The relevant record. As regards the Mukhbari application it was lodged on 15-2-1974 and was fixed for hearing on 6-3-1974 and then adjourned from time to time to 26-3-4974, 17-4-1974 and 3-5-1974 etc., according to the interim orders recorded thereon. Since the Mukhbari application was preferred before the cut-off date i,e, 1-7- 1974, therefore, it is duly covered under section 2(2) of the Act XIV of 1975. However, the name of Dr. Ahmad Jamal Ullah seems to have been added later after Mst. Rahim-un-Nisa d/o Abdul Ghani by adding {{URDU TEXT}}. Only one Claim Form No,2469 QPR is mentioned in the head note. Similarly in the opening sentence of the grounds {{URDU TEXT}} is clearly written. The name of another village has been added in sentence No,2. Again word has been mutilated to etc. There are several interpolations and over-writings in the Mukhbari application which would show that it was directed only against Mst. Rahim-un-Nisa to start with and name of Dr. Ahmad Jamal Ullah was added subsequently at some unspecified date. This finds support from the comments furnished by ADC/Additional Commissioner, Bahawalpur in Writ Petition No,28-R/77/Bahawalpur that the name of Dt. Ahmad Jamal Ullah was interpolated after 1-7-1974. The proceedings against Dr. Ahmad Jamal Ullah would therefore not be covered by section 2(2) ibid. Thereby Khan Bahadar will not get any benefit of these interpolations against Dr. Ahmad Jamal Ullah.
8. The respondents have not been able to rebut the allegation that their claim form was not validly transferred from Rahim Yar Khan to Bahawalpur. Assuming that these were transferred validly, without prejudice to the outcome of the case, even these allotments said to have been made in 1956 were not reflected in the khasra girdawari for a period of five years and also in the Jamabandi of 1957-58. The entry in the Jamabandi was made in 1962 for the first time and that does not prove that the respondents were in possession of the land allotted to them. Dr. Ahmad Jamal Ullah by virtue of his position as Deputy Director, Agriculture and as Member of Garden Allotment Committee after his transfer to Bahawalpur in 1962 seems to have managed the allotment of the property under dispute. Since the allottees did not have a claim for urban gardens and have not been found to be in possession of the allotted area five years prior to 1960, therefore, the concession contained in the Chief Settlement Commissioner's Memo. No,975-R-60-IRP, dated 20- 2-1960 could not have been allowed to them. These allotments smack of fraud and are suggestive of using official position to one's own advantage.
9. As regards the point of res judicata taken by the learned counsel for the respondents a perusal of Writ Petition No,227-R of 1973 shows that the Mukhbari application related to village Shall Garbi, Tehsil Chishtian, District Bahawalnagar and the informer was one Hafiz Mohkam Din. This contention of the learned counsel for the respondents is therefore not correct.
10. The next contention of the learned counsel for the respect is that the land in dispute was gifted by Dr. Ahmad Jamal Ullah to his sons in 1963 and they have not been made a party in the mukhbari application. The donees of Dr. Ahmad Jamal Ullah i,e, Syed Inayat Ullah had separately filed a Writ Petition No,28/R of 1978/Bahawalpur which was disposed of as not pressed on 3-12-1983, in view of the order in Writ Petition No,48-R of 1977/Bahawalpur which is presently under consideration.
Therefore, they cannot claim that they were not party to, and were unaware of, the proceedings in the Lahore High Court, Bahawalpur Bench.
11. The upshot of the above discussion is that both the allotments were obtained fraudulently by Mst. Rahim-un-Nisa and Dr. Ahmad Jamal Ullah and are accordingly cancelled under section 10 of the Displaced Persons (Land Settlement) Act, 1958 read with Act XIV of 1975. As regards Khan Bahadur he will get the benefit of his mukhbari application subject to his entitlement against Mst.
Rahim-un-Nisa as has been stated in para 7 above but does not get any benefit of mukhbari against Dr. Ahmad Jamal Ullah. However, since the allotment of Dr. Ahmad Jamal Ullah has been.
Found to be fraudulently obtained it shall stand resumed by the Chief Settlement Commissioner, Punjab. The land in question is reported to have been acquired by the Housing and Physical Planning Department who shall pay the compensation to the Settlement Department.
12. The orders in this case were reserved and shall be communicated to the parties.