This revision petition is directed against judgment dated 5-10-1981 passed by the learned Additional District Judge, Sargodha through which the appeal filed by the respondent/plaintiff against judgment and decree dated 5-6-1979 passed by the learned trial Court by which the suit instituted by the said respondent/plaintiff was dismissed has been accepted and the suit decreed.
2. The facts of the case giving rise to this revision petition are that Feroze Khan had three sons namely Allah Ditta, Muhammad Khan and Sahib (plaintiff). The Miner Book in dispute was issued in the name of Feroze Khan who with his consent got the same transferred to Muhammad Khan deceased his son (Exh: Dl) on 4-4-1958. Muhammad Khan deceased joined service as Short Fire.
The allotment of the said book was made in favour of Sahib Khan respondent/plaintiff. The respondent made an application to the authority that the said book be transferred to Muhammad Khan. On this application the authorities moved the higher authorities for obtaining sanction (Exh.
D3). The required sanction was granted on 24-10-1964 (Exh. 134) and formal order was passed on 30-10-1964 (Exh. 135) through which the said Miner Book stood transferred to Muhammad Khan. In April, 1968 Muhammad Khan died. Feroze Khan father of Muhammad Khan and respondent Sahib Khan i.e. Grandfather of the present petitioner Iqbal Hussain who is son of Muhammad Khan made an application (Exh. 136) that the said miner book be transferred to the present petitioner for the time being temporarily. Through order dated 25-7-1968 (Exh. 137) the said book was transferred to the petitioner. On 2-4-1976 the respondent/plaintiff filed suit for declaration that the said order (Exh. 137) for the. Transfer of the said Miner Book in favour of the present petitioner was illegal whereas the said plaintiff was entitled to the transfer of the same. The suit was contested by the.
Petitioner. On the pleadings of the parties various issues were framed. The material issue is Issue No. 3 and since the decision of the suit centres around the decision on this issue therefore the parties made statements before the learned lower appellate Court as observed in the impugned judgment passed by the said Court that no other issue was pressed except Issue No. 3. Issue No. 3 is as follows:-- "Issue No. 3: Whether the transfer of Miner's Book of Feroze Khan deceased in favour of defendant No. 2 is illegal for the reasons stated in the plaint?"
3. It may be observed here that since the legality of order dated 25-7-1968 challenged in the suit was to be determined' under this issue with reference to the grounds mentioned in the plaint- therefore, it is appropriate to mention about the same. In the plaint there is no averment that the officer who passed the said order (Exh. D7) i.e. Manager was not under the law competent or vested with the power to pass the same. The legality of order was challenged on general ground.
During the trial of the case reliance was placed by the respondent. No. 1 on the rules which provided the order of priority by which the heirs of the deceased book-holder were to get the book transferred in which the petitioner being brother of Muhammad Khan deceased book holder figured at a place above lqbal Hussain as nephew therefore, the challenge to the validity of the said order shall be deemed to have been made on that ground.
4. After going through the record, I would endorse the findings recorded by the learned trial Court under Issue No. 3 that it was not a case which was to be decided by the Chief Mining Engineer as held by the learned lower appellate Court under rule 5(iii) which provides that in case of death of holders of Miner Book if any claim was put forward for the grant of the book, the same shall be decided by the Chief Mining Engineer and since in this case nobody as rival claimants filed any claim before the said officer. The respondent/plaintiff admittedly did not after the death of Muhammad Khan file any application or any claim before the said officer for issuance of miner book to him. As observed above, he was once issued the book but he got the same transferred in favour of Muhammad Khan. In his evidence when he appeared as witness he admitted that the period for which he was holding the book he did not work in the mine. In my view, since nobody raised any claim on the ground of inheritance and certainly not the respondent/plaintiff therefore, it was not a case of determination of such claim between rival claimants therefore the finding of the learned lower appellate Court that the Manager who passed the impugned order (Exh. 137) was not competent is not sustainable because the same has been recorded on the erroneous assumption as if the Chief Mining Engineer was the authority to transfer/issue the book in the name of the petitioner,
5. Learned counsel for the respondent/plaintiff argued that it was established through Exh. Pl which is an official letter that the respondent/plaintiff had been making representations which should be construed that he lodged the said claim as envisaged by the said rule. I am afraid, the respondent/plaintiff cannot derive any benefit from any observation made in the said letter about the representation allegedly filed by him because he did not lead any evidence as to the date on which any such representation was made by him. It is clear from the record that as a matter of fact he accepted the order (Exh. D7) by not raising any objection and appears to have subsequently made up his mind to get the said book transferred in his name by filing suit in the year 1976 after a period of 8 years of the passing of the order dated 25-7-1968 (Exh. D7) challenged in the suit. The said letter dated 16-10-1976 Exh.Pl) was replied by the concerned authority through letter dated 16- 11-1976 (Exh. D8) in which it was made clear that the transfer of the disputed Miner Book was permanently made in favour of the present petitioner against which no objection was raised by any of the parties at that time. It may be observed that letter Exh. Pl on which reliance was placed was issued after the institution of the suit on 2-4-1976.
6. During the pendency of this case, Iqbal Hussain died and on the application of his widow namely Mst. Amina Bibi the book has been transferred in favour of his brother Zafar Hussain by the department.
7. The findings recorded by the learned lower appellate Court that order dated 25-7-1968 (Exh. 137) the legality of which was challenged in the suit was issued by an officer not vested with the power to do so is based on misreading as also misinterpretation of the relevant rules. The conduct of the petitioner did not entitle him to challenge the same as he did neither raise any objection at the relevant time nor claimed transfer of the book in his name. The relief claimed by him was discretionary and he was not entitled to the grant of the same. In my view since no one filed claim on the basis of inheritance, order dated 25-7-1968 can be construed to be a fresh and original order for issuance of Miner Book in. Favour of the present petitioner therefore the same was not required to be passed by the Chief Mining Engineer.
8. For the foregoing reasons, the revision petition is accepted. The judgment dated 5-10-1981 passed by learned lower appellate Court is set aside E and that of the learned trial Court restored.
The parties are left to bear their own costs.