' Messrs Hashim Shah son of Allah Ditta, Sher Ahmed son of Shams Din, Rashid Ahmad who were allotted agricultural land measuring 24 Kanals, 14 Marlas situated in Revenue Estate of village Calas, Tehsil Pind Dadan Khan, District Jhelum against their verified claim at register RL-2, was sold by them in favour of Karam Ellahi and Abdul Hakim. Messrs Sher Khan deceased-petitioner No,1 whose legal representatives have been brought on record of this Civil Revision during the pendency of this matter and 7 others claiming superior pre-emptive rights qua the sale in question filed a suit for possession to pre-empt the sale which suit was decreed on 6-1-1971. In pursuance of the said decree Mutations Nos.819-820 were sanctioned in favour of the petitioners. These mutations were also reflected in Jamabandi for the year 1979-80 Exh.PB. They were also recorded to be in possession of land in question in Khasra Gardavari Exhs.P6 and P7 for the years 1972---80.
Ghulam Rasool, deceased respondent No,1 whose legal representatives have been brought on record of this case, filed an application on 27-5-1981 which is Exh.D2 before Assistant Commissioner, Pind Dadan Khan stating therein that he was temporary allottee of the land in dispute as J. And K. Refugees since 29-4-1959 and that at the time of approach to the relevant authorities for grant of proprietary rights he has come to know that the land allotted to him has been got confirmed by Messrs Hashim Din and others. He prayed for restoration of his allotment in the said application. On the basis of this application, reports were called for, from lower revenue staff which are Exhs.D3 and D4 according to which reports, the land had been allotted to Ghulam Rasool applicant and had been confirmed thereafter in the name of Hashim Din and others. In the reports it was also mentioned that the temporary allotment of J. & K. Refugees has not been cancelled, therefore, a reference was made to Chief Settlement Commissioner for proper orders.
Under the order of Deputy Commissioner, Jhelum Mutation No,947 Exh.D5 was sanctioned in the name of Pakistan Government on 3142-1981 and Mutation No,949 Exh.D6 was sanctioned in the name of Ghulam Rasool temporary allottee transferring the property in question to him on payment of Rs,4,168. Ghulam Rasool sold the land in question vide Mutation No,950 Exh.D7 in favour of respondents Nos.2 and 3 and others. The petitioners were shown in possession of the land as tenant in Jamabandi Exhs.D8 and D9 through tenants-at-will. On 17-5-1983 a suit for recovery of share of produce was filed by the vendees from Ghulam Rasool against the tenant-at-will and on 11-8-1983 a decree was obtained against them. Thereafter, the petitioner filed a suit seeking declaration of title on the basis of pre-emption decree obtained by them and also a decree for permanent injunction restraining the respondent from interfering with the possession of the petitioners. This suit has been contested by the respondents.
2. On the basis of the pleading of the parties learned trial Court settled the following issues:---
(i) Whether the suit has been filed on behalf of Sher Khan plaintiff fictitiously?
(ii) Whether the suit of the plaintiff is not maintainable in its present form?
(iii) Whether the Court has no jurisdiction to try this suit?
(iv) Whether the Central Government is necessary party in this suit?
(v) Whether the suit of plaintiff is defective for non-joinder of necessary party?
(vi) Whether the plaintiff has no cause of action and locus standi to bring this suit?
(vii) Whether the plaintiffs are owners in possession of suit property and entitled to injunction prayed for?
(viii) Relief.
' After recording of evidence the suit was dismissed vide judgment and decree dated 3-2-1986 passed by the learned trial Court, on the ground that all the vendees from Hashim etc., the allottees have since not been impleaded and that the suit is hit by the provision of section 42 of Specific Relief Act and that the mutation of ownership sanctioned in favour of the petitioners having been reviewed by revenue authorities, they had no locus standi to file the suit. Aggrieved of this judgment and decree the petitioners filed an appeal which has been dismissed by the learned Additional District Judge, Jhelum vide judgment and decree dated 28-9-1988. Findings rendered by the learned trial Court on all the issues have been confirmed and findings rendered against the respondent on Issue No,5 has also been reversed. Hence this Civil Revision has been filed by the plaintiffs.
3. Mr. S.M. Mehboob, Advocate has appeared on behalf of petitioner whereas Kh. Muhammad Yousaf Saraf, Advocate and Mr. Ajmal Kamal Mirza, Advocate have appeared for respondent No,3, none has appeared on behalf of respondent No,1. The sole argument addressed by the learned counsel for the petitioner is that the allotment in favour of the predecessor-ininterest of the petitioners having not been challenged before any competent forum in any competent proceedings, could not have been ignored merely because the mutations of ownership in their favour have been reviewed by the revenue authorities and hence according to the learned counsel the subsequent allotment in favour of the predecessor-in-interest still subsists, the title suit filed by the petitioners could not have been dismissed by the Court below. Learned counsel however has conceded that the respondents have proved on record that the land in question was allotted to respondent No,1 as J & K Refugee in the year 1959 prior to the allotment to the predecessor-in- interest of the petitioners.
4. Messrs Kh. Muhammad Yousaf Saraf, and Mr. Ajmal Kamal Mirza, Advocates, learned counsel appearing for the respondents have argued that as the land in dispute was allotted to respondent No,1 as J&K Refugee in the year 1959 therefore it was not available for allotment to the predecessor-in-interest of the petitioner, therefore, the same being void as initio, it was not necessary to challenge the same in any forum and could just to be ignored and this is what the revenue authorities have done, who after realising that the land in question had already been allotted to respondent No,1 and hence was not available for allotment have reviewed the mutations of ownership sanctioned in the name of the petitioners. The exact argument of the learned counsel for the respondent is that the land in question having been allotted to respondent No,1 was excluded from compensation pool and was not available for allotment, therefore, any order of allotment and subsequent entries on the revenue record made on the basis thereof cannot confer proprietary rights in favour of petitioners nor pre-emption decree makes the petitioners as owners of the land in question, hence the two Courts below have rightly non-suited the plaintiffs. S. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Admitted position of this case is that prior to the allotment in favour of the predecessor-in-interest of the petitioners, the land in question had been allotted to respondent No,1 as J & K Refugee. It is further contended that paragraph 4-A of Rehabilitation Settlement Scheme, 1952 specifically excludes the land allotted on temporary basis to J & K Refugees from the category of the land which can be allotted. Paragraph 4-A of the scheme reads as under:- "4-A. The following categories of land will not be allotted under the Rehabilitation Settlement Scheme and will remain excluded from the scheme."
In case of Mst. Sakina Bibi and another v. Mamla and 2 others PLD 1977 Lah. 202 and Jan Muhammad and others v. Sher Muhammad and another PLD 1979 SC 985 it has been held that the land temporarily allotted to Jammu and Kashmir Refugees is not a part of the compensation pool and shall be deemed to have been sold to Ministry of Kashmir Affairs, therefore, it cannot be allotted to others. Similar view has been taken in the following cases:---
(1) Dost Muhammad and others v. Mst. Badal Jan and others 1976 SCM R 112.
(2) Nihal Din v. Muhammad Hussain and 3 others 1991 M LD 2167.
(3) Ghulam Muhammad v. Ahmad Khan PLD 1991 SC 391.
In view of above provisions of the scheme and the law declared in the aforementioned judgments it stands established that the land in question having been allotted to the- respondent No,1 temporarily as Jammu and Kashmir Refugees was not available for allotment to the predecessor- ininterest of the petitioners and therefore the allotment in their favour being void ab initio did not confer any rights either upon allottees or petitioners who claim title through them. It was also not necessary for respondent No,1 to have challenged this allotment made in favour of the predecessor of the petitioners before the hierarchy provided under the provision of Displaced Persons (Land Settlement) Act, 1958 and could just be ignored by all the Courts including the Civil Courts.
Resultantly, the petitioners have miserably failed to prove that they have any title in the land in question and as such the two Courts below have rightly non-suited them. No case has been made out for interference in this civil revision, as substantial justice has been done in view of the law declared in case of Messrs Ghulam Farid Muhammad Latif v. The Central Bank of India Ltd. PLD 1954 Lah.
575. Hence the same is dismissed with no order as to costs.