This judgment will dispose of W.Ps 143/R of 1979, 783/R of 1974 and 1707/R of 1974 as common questions of law and fact arise therein.
2. Facts, forming the background of the litigation giving rise to the above three writ petitions, may be narrated; Mst. Sardar Begum is a displaced persons from Jammu and Kashmir State and filed a Claim Form for the lands abandoned by her which was verified for 2632 PI units and QPR was issued. Her case is that some agricultural land worth 314 PI units was confirmed in her name in village Harnah, Tehsil and District Sialkot. Later on 1200 units were transferred out of district, thus leaving 1118 units pending satisfaction in village Harnah. Three persons, namely, Bashir Ahmad, Allah Rakha and Sain., hereinafter called "allottees" were confirmed disputed land in the village which was challenged by her through three appeals. During the course of arguments of appeals Forest Department intervened and argued that area measuring 33 acres, 4 Kanals and 10 Marlas had been taken over by it under policy directive vide letter No. 1824 dated 10/11-2-1948 and the said area was notified later on as protected forest vide notification dated 27-10-1950 for thirty years and thus allotments in the names of three allottees (respondents in the appeals) were void ab initio.
3. On behalf of the "allottees", it was, inter alia, argued that Mst. Sardar Begum had no outstanding units, pending satisfaction in village Harnah, at the time of disputed allotments in their names, as her units had already been transferred to Sargodha. It was also argued that Mst. Sardar Begum was not a temporary allottee of this village and thus did not possess preferential right vis-a-vis the respondents and' that her appeals were time-barred. As against the claim of Forest Department over the disputed lands, it was submitted that it had already released the same in view of letter No. 640/C dated 26-3-1960.
The plea that the units of Mst. Sardar Begum had been transferred to Sargodha was stoutly denied by her and it was pointed out that this could not legally happen as the allotments to Jammu and Kashmir refugees were to be confined to six border districts, and Sargodha was not one of these districts. According to her, this was mala fide attempt on the part of the respondents (in the appeals) to deprive her of her right to claim the disputed land, by representing that by virtue of transfer of units, she had lost locus standi to challenge the allotments in their names.
4. The Additional Settlement Commissioner, through an elaborate order dated 6-5-1970, dealing with the contentions of the parties, directed the cancellation of the allotments in the names of the "allottees" respondents (in the appeals). He ordered that the land notified to be reserved in favour of the Forest Department should be restored to it and the remaining land comprising Fields No. 281, 444/305, 350, 351, 354, 355, 17, 196, 295, 271, 306, 502/315 and 316 should be allotted to Mst. Sardar Begum, provided that no part thereof was out of the temporary allotment of Jammu and Kashmir refugees and was not "Ghair-Mumkin" paths. .Thus, the contention that units of Sardar Begum had been transferred to Sargodha was repelled. The allotments in the names of "allottees" were held to be "anti-dated". The orders under appeals were held to be void, and question of limitation was held not to arise at all.
5. Four revision petitions were filed against order dated 6-5-1970, three by the "allottees" and the fourth by Mst. Sardar Begum, as all felt dissatisfied with the same. These revision petitions were dismissed by Settlement Commissioner on 2-5-1974.
6. Almost simultaneously, a Muklbari application was moved by one Sardar Hussain through Sheikh Abdul Shakoor, son of Sheikh Ghulam Jilani, his Mukhtar-e-Aam, challenging the legality of allotment of Mst. Sardar Begum, inter alia, on the ground that Mst. Sardar Begum had got all her units transferred to Sargodha and yet she had not surrendered her allotment in village Harnah, District Sialkot and this being a case of double allotment, the Sialkot allotment merited to be cancelled. On notice, Mst. Sardar Begum appeared and produced copy of order dated 6-5-1970 (by Additional Settlement Commissioner), referred to above, passed in her favour, and took the plea that she never applied for transfer of her claim to Sargodha, nor obtained any allotment there.
Learned Chief Settlement Commissioner took note of the fad that Sh. Ghulam Jilani, father of Abdul Shakoor, General Attorney of the Mukhbar, had appeared in the case before Additional Settlement Commissioner as vendee from the "allottees". He found that in the face of order dated 6-5-1970, the disputed allotment in the name of Mst. Sardar Begum was not open to challenge. The Mukhbari application was dismissed on 25-7-1975.
7.It is in this background of the litigation that the present three writ petitions have been filed: (1)Writ Petition No. 1070/R of 1974 by Mst. Sardar Begum; wherein she has assailed the orders of Additional Settlement Commissioner and Settlement Commissioner dated 6-5-1970 and 2-5-1974, respectively, whereby partial relief was granted to her qua the disputed land, and major portion was allowed to be retained by Forest Department. Her case is that Forest Department had no right to claim any part of the disputed land.
(2)Writ Petition No. 143/R of 1979 by Mst. Sardar Begum; wherein she has challenged the legality of allotment purportedly made in her name in village Bahatoli Brahmana, District Sargodha, for land measuring 419 Kanals 4 Marlas alleging that neither she ever made a motion for transfer of her pending units to Sargodha nor did she obtain any allotment there. According to her, this was the outcome of manoeuvring of Sh.' Ghulam Jilani, who wanted her to be removed from the scene in village Hannah to make room for the "allottees", from whom he had purchased the disputed land. It is submitted that she came to know of this so-called allotment in Sargodha quite late and had been moving various authorities inclusive of Martial Law functionaries for redress of her grievance, but to no effect.
(3)W.P. No. 783-8 of 1974 is by Sh. Ghulam Jeelani, vendee of the disputed land. His plea is that the claim of Mst. Sardar Begum having been transferred to Sargodha where she had succeeded in securing allotment to the extent of 419 Kanals and 4 Marlas, the Settlement Authorities were not justified to allow her to retain her original allotment in village Harnah (Sialkot) nor could they legally allow additional land out of the disputed area. He, however, does not oppose the plea of Mst.
Sardar Begum that Forest Department, in any case, was not entitled to lay its hands on any part of the disputed land.
8. In ,so far as the right/entitlement of Forest Department over the disputed land is concerned, that merits to be attended to first.
In Province of Punjab v. Muhammad Mahmood Shah (1991 SCM R 1426) their Lordships of the Supreme Court of Pakistan have ruled that all such lands in border districts of Punjab, inclusive of Sialkot, which had been allotted to the claimant displaced persons before 27-2-1965, were to be kept in tact in their names, while allotments of lands of later origin than this cut off date, were to be treated to be illegal, and such lands were to revert to the Forest Department. Keeping in view the law laid down by their Lordships, the dates of disputed allotments have to be checked. I find that all the three allotments are of prior date, i.e. (i) allotment of land measuring 185 Kanals 19 Marlas in the name of Said Ahmad son of Shahab Din is dated 30-9-1964; (ii) allotment of land measuring 39 Kanals 17 Marlas in the name of Bashir Ahmad son of Allah Bux is dated 1-12-1963; and (iii) allotment of land measuring 75 Kanals 2 Marlas in favour of Munshi and Allah Bux is dated 3-12-1963. Thus the Forest Department had no valid claim qua any part of the disputed land in the light of Province of Punjab's case (supra). It stands eliminated from the contest altogether.
9. Coming now to the inter se merits of Mst. Sardar Begum and Sain Ahmad, Allah Bux, Munshi and Mst. Sardar Begum alias Zainab Bibi (allottees), predecessors-in-interest of Ch. Ghulam Jilani, I fmd that the orders passed by the Additional Settlement Commissioner and Settlement Commissioner dated 6-5-1970 and 2-5-1974 do not call for any interference in so far as the matter of granting preference to Mst. Sardar Begum over the "allottees" vis-a-vis disputed land is concerned.
10. The foremost argument raised on behalf of the "allottees", as advanced befoie the Settlement Authorities, is that the outstanding units of Mst. Sardar Begum having been transferred to Sargodha on her motion, and substantial land having been confirmed to her there, she stood completely divested of any right to lay a claim on any part of the disputed land. There is a finding of fact recorded by the Additional Settlement Commissioner, based on appraisal of material/evidence on the file to the effect that Mst. Sardar Begum never got her claim transferred. This finding was affirmed by the Settlement Commissioner. It is not possible for this Court to interfere with this finding, and I cannot substitute my own conclusion even though it be different, on appraisal of the same material, for that recorded by the tribunals of competent jurisdiction.
11. The fact that Sheikh Ghulam Jilani is the vendee of the disputed land and his son Abdul Shakoor filed a Mukhbari petition, in his purported capacity as General Attorney of one Sardar Hussain, in a bid to secure a finding of transfer of units of Sardar Begum to Sargodha and allotment there in her name, during the pendency of revisions before the Settlement Commissioner cannot be lost sight of. There appears to be good deal of force in the submission of the learned counsel for Mst. Sardar Begum, that both the father and the son were in collusion with each other and that, in fact, they had managed the disputed allotment after purchasing units from the "alottees" and their efforts were thereafter directed to climate Mst. Sardar Begum, contender for the disputed land, by fraudulently getting her units shifted from Sialkot. According to him, the allotment in Sargodha in her name was part of the conspiracy hatched by them. Abdul Shakoor is reportedly a notorious person involved in numerous fraudulent allotments of evacuee lands in Sialkot. It is not possible for me to comment on these assertions about the past history of Abdul Shakoor. However, I find that according to para 44-A of Rehabilitation and Settlement Scheme, allotments to Jammu and Kashmir displaced persons were to be confined to six border districts, Sargodha being admittedly not one of those. No allotment could, therefore, take place in the name of Mst. Sardar Begum in Sargodha, and consequently, question of despatching her claim form units to said district could not arise. Furthermore, perusal of Khata RLrII in the name of Mst. Sardar Begum for village Bahatoli Brahamana, Sargodha (Annexure `F with W.P. 143-R/79) shows that this allotment took place in her absence and she could not be held responsible for it. Consequently, it is held that this allotment is not only bad in law but is liable to be declared to be without lawful authority.
12. She had been found both by the Additional Settlement Commissioner as well as Settlement Commissioner to be entitled to the disputed land and the sole reason for grant of partial relief qua Khasra numbers, mentioned in the order of Additional Settlement Commissioner dated 6-5-1970 was that the remaining area was found liable to revert to Forest Department. The allotments in the names of "allottees" were found defective in law, inter alia, for being anti-dated. Forest Department having already been found to be disentitled to any part of the disputed land, there is no justification for denying her relief qua the entire disputed land. .
13. The upshot of the above discussion is that W.P. No. 1070-8 of 1974 and W.P. No. 143 of 1979 filed by Sardar Begum are accepted. The orders of the Additional Settlement Commissioner dated 6-5- 1970 and Settlement Commissioner dated 2-5-1974, to the extent of denying total relief qua the entire suit land are declared to be without lawful authority and a direction, in the nature of mandamus is issued to the notified officer concerned of Sialkot district to allot the remaining land, apart from the khasra number given to her by the Settlement Authorities in lieu of her outstanding units. The alleged allotment in her name in Sargodha district is declared to be nullity in law. For the purpose of taking formal steps for making entries in her name in her Khata RL-II of village Harnah, her claim form/units, if need be, shall be requisitioned from Sargodha District.
14. Writ Petition filed by Sheikh Ghulam Jeelani (W.P. No. 783-8 of 1974) is dismissed. Mst. Sardar Begum is held entitled to costs in all the three writ petitions.