This judgment shall dispose of Writ Petition Nos. 1045-R/77, W.P. 325-R/82 and W.P. 326-R/82.
2. Briefly the facts of the case are that claimant Shahdin was holding excess land and he voluntarily applied for cancellation of the same praying that out of the total land he was entitled to retain an area to the extent of 1289 units. This was vide his application dated 14-5-1960 where he prayed that particular land should be cancelled and in this way he exercised his choice to retain the land as against his entitlement of 1289 units. The cancellation was made on 1-6-1960 and the excess area was allotted to Lakhey Khan, predecessor-in-interest of the petitioners and also some other persons.
3. It appears that the excess area was cancelled from the name of Shahdin not according to .his choice. Shah Din was insisting to exercise his choice and finally Tehsildar Depalpur made a report on 2-9-1967 that the allottee should be restored the area which was allotted to Lakhey Khan, Sikandar Khan and Bagh Ali and this report was approved by CA(P) vide order dated 31-12-1969 and the matter was placed before the Additional Settlement Commissioner who vide his order dated 7-4-1976 cancelled the area from the names of Lakhey Khan, Bagh Ali and Sikandar Khan to whom the excess area was allotted and which Shah Din allottee wanted to retain by exercising his choice.
The petitioners filed revision petition against the order dated 7-4-1976 of the Additional Settlement Commissioner and also the order dated 1-12-1969 of the Chairman, Allotment Committee which was rejected by the Settlement Commissioner, Multan Division on 13-11-1976 for lack of jurisdiction as by then the evacuees laws had been repealed.
4. The legal heirs of Lakhey Khan have filed Writ Petition No. 1045--4/77 mainly on the ground that the land in dispute was allotted in favour of Lakhey Khan and the same could not have been withdrawn subsequently by the Settlement Authorities. In view of this it is prayed that the writ petition may be accepted and the dispute land be taken from the legal heirs of Shah Din.
5. I have heard the learned counsel for the petitioners at length and am of the opinion that right from the very beginning the original allottee was surrendering the excess area subject to the condition that he was entitled to exercise his choice but despite this the Settlement Authorities cancelled some other land. However, finally he succeeded in retaining the land on the basis of his choice and in these proceedings Muhammad Shafi son of Lakhey Khan was a party. The plea of the learned counsel that the petitioners were not heard is factually incorrect as Muhammad Shafi one of the sons of Lakhey Khan was respondent No. 2 not only while preparing the report dated 2-9- 1969 but also at the time when the orders dated 31-12-1969 and dated 7-4-1976 were passed. The effect of the aforementioned orders in favour of Shah Din allottee was that he was given land only to the extent of his entitlement and not more than that.
6. The original allottee Shah Din was in possession of the disputed land much before 1960 and he could retain the land according to his entitlement keeping in view the choice but in spite of his prayer the Settlement Authorities cancelled some other area which was finally restored to him. In view of this the petitioners in Writ Petition No. 1045-R/77 have not been able to make out any case for the disputed land.
7. Writ Petition No. 325-R/82 has been filed by legal heirs of Rahim Bakhsh against the same orders which are impugned in the aforementioned writ petition. It is stated that after the cancellation of excess land from the name of Shah Din, the same was allotted in favour of Sikandar Khan and after his death it was mutated in the name of his legal heirs including one Shah Muhammad predeceased son of Sikandar Khan from whom the petitioners purchased the disputed land. It is submitted that the petitioners are bona fide purchasers and they are entitled to retain the land in question.
8.I have heard Mr. A.R. Shaukat, Advocate who is also learned counsel in the aforementioned writ petition. Admittedly the land has been restored on the basis of choice in favour of Shah Din by orders dated 31-12-1969 and A 7-4-1976 and these orders were not challenged by the legal heirs of Sikandar Khan. In any case Shah Din was allottee in possession of the disputed land and he was in law competent to exercise his choice and it is for these reasons that the disputed land was restored to him. The petitioners claim to have purchased the land vide registered sale-deed dated 8-5-1976 while cancellation order from the name of Sikandar Khan was passed much before that, therefore, no valid title was passed in favour of the present petitioners. According to the petitioners the mutation of inheritance of Sikandar Khan was sanctioned on 8-4-1974 in favour of the legal heirs including Shah Muhammad one of the heirs and predeceased son of Sikandar Khan. It is evidently clear from the report of the Tehsildar dated 2-9-1967 that much before that proceedings regarding cancellation were made and this report was approved by the Assistant Commissioner on 31-12-1969. In view of this the attestation of mutation in favour of legal heirs of Sikandar Khan was- not legal and proper.
9. In this writ petition the petitioner have also prayed that proceedings dated 27-4-1981 may be declared as without lawful authority. When questioned the learned counsel for the petitioners has referred to Annexure `K' which is an application of Muhammad Yasin and others against Noor Ahmed and others and there was a dispute regarding Batai and this fact has been entered in the Roznamcha Waqiati. There is another significant aspect of the case. The disputed land was cancelled from the name of Sikandar Khan in 1969/1974 and the present writ petition was filed on 8-6-1981 and the same was admitted on the ground that Writ Petition No. 1045-R/77 was already pending. The petitioners have not been able to explain the inordinate delay in filing the writ petition against the orders dated 31-12-1969 and 7-4-1976.
10. Writ Petition No. 326-R/82 has been filed by the legal heirs of Sikandar Khan where the same orders have been challenged which are the subject-matter of the aforesaid two writ petitions. This writ petition was also filed in June, 1981 and the petitioners are claiming the disputed land and the same arguments are advanced in this writ petition as were submitted in the aforesaid writ petitions.
11. In final analysis it is amply demonstrated that Shah Din was within his right to retain the land on the basis of his choice which was ultimately accepted by the Settlement Authorities and the land was restored to him from Lakhey Khan, Sikandar Khan and Bagh Ali. In view of this all the petitioners in the B three writ petitions have no legitimate claim for the simple reasons that Shah Din allottee was the first allottee and in possession of the land and the Settlement Authorities in spite of his request did not cancel the land according to his choice and the land so cancelled was allotted in favour of the predecessor-in-interest of the petitioners. The learned counsel for the petitioners has not been able to persuade me that the impugned orders are in any way arbitrary or without lawful authority.
In view of above, there is no merit in all the three writ petitions which are dismissed but without any orders as to costs.