' ZIA MAHMOOD MIRZA, J.---Petitioners in the abovementioned two petitions seek leave to appeal against a common judgment of a learned Single Judge of Lahore High Court dated 29-5-1994 whereby Writ Petition No,1045-R-70, filed by the respondents/legal heirs of Niaz Din claimant has been accepted, orders of Settlement Authorities cancelling the allotment of the land in dispute from their names has been declared to be without lawful authority and of no legal effect and "they are held entitled to retain the disputed allotment".
2. This case has a chequered history. Parties are locked in litigation for the last about 40 years and the case has come to this Court for the third time. Facts as emerging from various orders placed on the present record, briefly stated, are that Niaz Din, the predecessor-in-interest of respondents Nos.1 to 5, on migration from India at the time of partition of sub-continent, settled in Chak No,127/GB, Tehsil Jaranwala, District Faisalabad where he was given some temporary allotment on 23-9-1948. He did not take possession of the land allotted to him and disappeared from the Chak.
The land being thus available was further allotted to Aziz Din etc. On 26-10-1948. Niaz Din, however, got his claim form registered in Chak No,362/JB on 20-2-1949 for the land abandoned by him in India which was verified by the Central Record Office and dispatched to Chak No,362/JB, Tehsil Toba Tek Singh, District Faisalabad (then Lyallpur). It appears that Bashir Ahmed respondent, a son of Niaz Din who was still a minor at the relevant time made an application to the local authorities on 16-2-1953 praying that he and other heirs of Niaz Din be treated as allotters of Chak No,127/GB and as their entitlement has since been verified, they may be granted allotment in lieu of the temporary allotment made in favor of their predecessor Niaz Din. On a note put up by the Field Staff, D.R.C. Passed an order on 30-4-1953 allowing the transfer of claim of Niaz Din from Chak No,362/JB to Chak No,127/GB. After the claim was received in Chak No,127/GB, mutation of inheritance of Niaz Din in favour of his heirs, the respondents herein was entered and later sanctioned on 29th December, 1953. The land in dispute was thereafter allotted to respondents in Chak No,127/GB on the basis of verified claim of Niaz Din from 3-8-1954 to 30-1-1957.
3. Sometime later, Sardar Muhammad Khan Alvi (the predecessor of the petitioners in CP 769-L/94) and Faqir Khan (the predecessor of the petitioners in CP 770-L/94) submitted applications to the Rehabilitation Authorities alleging that Bashir Ahmed and others, the respondents herein had obtained the allotments in Chak No,127/GB through fraud and mis-representation and requested that the said allotments be cancelled and the land in dispute be allotted to them as informers.
Their precise allegation was that Niaz Din was alive when the respondents got the mutation of his inheritance sanctioned so as to get themselves treated as special class allottees (being the orphans and widow of the right-holder Niaz Din). It was also alleged that the claim form registered in Chak No,362/JB was got transferred to Chak No,127/GB through back door. Their applications, it appears, were rejected and the matter was brought in revision before Additional Rehabilitation Commissioner, who by his order dated 3rd November, 1959 remanded the case for holding an elaborate inquiry on the following points:--
(1) Whether Niaz Din was alive on 26-4-1958, the date on which he sent Wakalatnama and preferred an appeal?
(2) Whether Niaz Din Registered Claim Form for Chak No,362/JB was regularly or through a back door transferred to this estate?
(3) If after a detailed inquiry Niaz Din is found to be alive, the mutation of inheritance should also be reviewed?
4. On remand, Deputy Rehabilitation Commissioner found that Niaz Din was alive on 26-4-1958 and that he died on 5-11-1958 and the claim was brought to Chak No,127/GB through back door.
Mutation of inheritance sanctioned on 29-12-1953 was accordingly held to be fictitious and was cancelled. This was vide order dated 2-11-1960 which was upheld in appeal by the Additional Settlement Commissioner by his order dated 15-6-1962. Respondents challenged these orders in a Constitutional Petition (W.P. 1487-R-62) which was dismissed by a learned Single Judge of the Lahore High Court on 21-9-1965. Their appeal (LPA 444-66), too, was dismissed by a Division Bench of the Lahore High Court on 22-11-1968. They then filed Review Application No,6 of 1969 on the basis of some fresh documentary evidence which was allowed by a Division Bench of the Lahore High Court with the observation that the record produced before them revealed that no fraud was committed by the respondents to get the inheritance mutation sanctioned and it was on account of sympathetic consideration of the authorities and the disappearance of Niaz Din that the inheritance mutation was sanctioned in their favors. Orders of the Deputy Rehabilitation Commissioner dated 2-11-1960 and the Additional Settlement Commissioner dated 15-6-1962 were accordingly set aside and the case was remanded with the direction that the questions posed in the order of the Additional Rehabilitation Commissioner dated 3-11-1959 "as well as the issue of the validity of the order dated 26-10-1948 cancelling Niaz Din's allotment as well as the question whether the allotments made in favors of the petitioners are liable to be cancelled on the basis of information filed by the respondents and whether the said respondents are entitled to the allotment in preference to the petitioners should be decided afresh in the light of the observations made above".
5. Sardar Muhammad Khan Alvi and Faqir Khan represented by his legal heirs brought the matter before this Court in CP 53 of 1970 which was dismissed on 8-4-1970 with the observation that "The High Court has not expressed any firm opinion on any point. The matter is entirely within the discretion and decision of the Rehabilitation Authorities. The High Court has remanded the case to determine the dispute between the parties in accordance with the order of remand passed by Sardar Atta Muhammad Khan, Additional Rehabilitation Commissioner, Multan Division, dated the 3rd November, 1959. It is expected that the Rehabilitation Authorities will dispose of the dispute between the parties on merits".
6. In post-remand proceedings, Additional Settlement Commissioner held that Bashir Ahmed had no right to move an application for transfer of the claim in the lifetime of his father. It was only the claimant Niaz Din who was legally entitled to get his claim transferred but it was abundantly clear that he had no intention to settle in Chak No,127/GB otherwise there was no need for him to file his claim form for Chak No,362/GB, Tehsil Toba Tek Singh although he was temporary allottee of Chak No,127/GB. It was further found by the Additional Settlement Commissioner that Niaz Din was alive on 26-4-1958 when he sent Wakalatnama and preferred an appeal against the attestation of mutation of his inheritance. On these findings, the Additional Settlement Commissioner by his order dated 29-6-1970 set aside the mutation of inheritance of Niaz Din, cancelled the allotment of the land in dispute from the names of the respondents and directed that the same be confirmed to Sardar Muhammad Khan Alvi who was recognised as first informer by Malik Alam Khan, Deputy Rehabilitation Commissioner (L), Lyallpur vide his order dated 2-11-1960 and after the satisfaction of his pending units, if some area is left, "the same should be confirmed to the successors-in-interest of Faqir Khan deceased informer". Order of the Additional Settlement Commissioner dated 29-6- 1970 was upheld in appeal by the Settlement Commissioner (L), Sargodha Division vide his order dated 29-9-1970. He accepted that some temporary allotment was made in favour of Niaz Din in Chak No,127/GB, on 23-9-1948 but observed that he did not take possession of the land allotted to him and within two months, it was allotted temporarily to Aziz Din and Wazir Ahmad which allotment was never questioned either by Niaz Din or any other person. It was accordingly held by the S.C. (L), that no right could be claimed on the basis of the said temporary allotment of Niaz Din.
As regards the transfer 'of claim of Niaz Din to Chak No,127/GB, the Settlement Commissioner observed that as there was no such prayer made in the application of Bashir etc., the orders of Rehabilitation Authorities in this behalf were uncalled for and without any legal effect. Mutation of inheritance of Niaz Din was also held liable to be reviewed as it was sanctioned in his lifetime and he had himself challenged it.
7. Feeling aggrieved, the respondents once more approached the. High Court through Writ Petition No,1045-R-70 which was. Accepted by a learned Single Judge who by his order dated 3-5-1977 set aside the orders of the Settlement Authorities. Petitioners assailed the judgment of the learned Single Judge in this Court in an appeal by leave of the Court (CA 194 of 1983) which was allowed vide judgment dated 19-2-1991 and the case was remanded to the High Court for fresh decision with the observation that "in cases relating to settlement of displaced persons, the normal rules of technicality and also those applicable to writ jurisdiction are not strictly applicable. See the well- known case of Rafitidin v. Chief Settlement and Rehabilitation Commissioner (PLD 1971 Supreme Court 252). Substantial justice also needed to be done amongst both the sides. We might have done this exercise ourselves but on account of the conflict of certain points in the impugned judgment inter se we consider it safe and proper to remand the case to the High Court for fresh decision" .
8. After the remand from this Court, a learned Single Judge in the High Court took up the case and proceeded to decide it on merits in the light of the aforenoted observations made in the remand order of this Court and the law laid down by this Court in the case of Barkat Ali v. Settlement and Rehabilitation Commissioner, Multan and 8 others (PLD 1991 SC 610) wherein it was observed that "At this stage of the settlement operations which have almost concluded, it has been held in a number of cases that instead of further prolonging the litigation the Courts exercising Constitutional jurisdiction may grant or withhold relief full or partial in exercise of discretion and/or in aid of justice". The learned Judge held that the view of the Settlement Authorities that Niaz Din could not be treated as temporary allottee of the Chak as he had not taken possession of the land allotted to him was not supported by any provision of law and in any case when comparing the entitlement of the respondents with that of the petitioners, the latter could not claim any preference as they were neither allottees in the chak nor their claim was pending or registered in the Chak and they were claiming allotment of the land only as informers. The learned Judge referred to a judgment of this Court in the case of Abdul Hafiz v. Rehabilitation Commissioner, West Pakistan and 4 others (PLD 1966 SC 483).And observed that it was held therein that allotment of land to non-allottees over the heads of others holding temporary allotments in the village with registered claims was certainly irregular and called for interference by the Rehabilitation Commissioner. As regards the adverse findings of the Settlement Authorities about the illegal transfer of calim of Niaz Din from Chak No,362/JB to Chak No,127/GB and the attestation of mutation of inheritance of Niaz Din while he was still alive, the learned Judge held that on the facts admitted/found in the order of the Settlement Commissioner, these findings were not substantiated by any evidence. The learned Judge pointed out that it was stated in the order of the Settlement Commissioner that Bashir was still a minor when he submitted an application with the prayer that he and other heirs of Niaz Din be treated as allottees of Chak No,127/GB and their entitlement having been verified, they may be granted an allotment in view of the fact that allotment was made in favour of their father Niaz Din on 23-9-1948. There was no prayer in that application for transfer of the claim from Chak No,362/JB to Chak No,127/GB and the authorities on their own dealt with it as an application for transfer of the claim and the Deputy Settlement Commissioner by his order dated 30-4-1953 allowed the transfer of the claim and after the claim was received in Chak No,127/GB, mutation of inheritance was entered at the request of Bashir Ahmad and was sanctioned on 29-12-1953 where after the allotments in dispute were made on the basis of verified claim of Niaz Din. On these admitted facts, the learned Judge held that the heirs of Niaz Din were not guilty of any fraudulent act in the transfer of their claim to Chak No,127/GB or in getting the mutation of inheritance of Niaz Din sanctioned. The learned Judge observed that the plea of the respondents that their father was not traceable rightly found favour with the Rehabilitation/Settlement Authorities who attested the mutation in their favors. It was noted in this behalf that the Settlement Commissioner had observed in his order that Niaz Din had left the Chak for some unknown destination and he had died in 1958 somewhere in Lahore. These facts, according to the learned Judge fortified the plea of the respondents that their predecessor was not traceable. The learned Judge also did not accept the finding of the Settlement Authorities that Niaz Din had filed an appeal to challenge the mutation of his inheritance as in his view, there was no positive evidence available in support of that finding or to show that Niaz Din was available in the village or that his heirs possessed knowledge that he was alive. It was further observed by the learned Judge that the land in dispute having been permanently settled on the respondents against their verified claim, the same could not be cancelled on the flimsy ground that the claim form was not competently transferred. It is also held by the learned Judge that the petitioners being informers had no locus standi to challenge the allotments made to the respondents which could only be cancelled by filing an appeal within time and the petitioners could not have filed any appeal or revision. The learned Judge has finally held that the land in dispute having been permanently settled on the respondents for more than three decades, "it will be highly unjust to uproot them at this stage and this is certainly not the policy of the settlement laws". With these frdings/observations, the learned Judge in the High Court accepted the writ petition and setting aside the orders of Settlement Authorities held the respondents/heirs of Niaz Din entitled to retain the disputed allotment with further direction to the Chief Settlement Commissioner "to settle the claim of respondents (present petitioners) as to their balance units on any other available land".
9. We have heard the learned counsel for the petitioners appearing in both the petitions. He assailed the impugned judgment on the ground that the learned Single Judge did not attend to the questions raised in the remand order of this Court dated 19-2-1991 and decided the case by giving preference to the respondents for the allotment of the land in dispute without examining whether the findings recorded by the Settlement Authorities on the points formulated by Additional Settlement Commissioner in his order dated 3-11-1959 were based on the material on record and were thus not open to interference in exercise of Constitutional jurisdiction. Learned counsel contended that the respondents had acted fraudulently in getting the mutation of inheritance of their father sanctioned in their favour without disclosing that he was still alive and they also manoevred the transfer of their father's claim from Chak No,362/JB to Chak No,127/GB. They were, therefore, not entitled to any relief in equitable and discretionary jurisdiction in writ.
10. We have given our anxious consideration to the submissions made by the learned counsel for the. Petitioners. In view of the law laid down by this Court in the case of Barkat Ali (supra), petitioners cannot take any legitimate exception to the decision of the case on merits by the learned Single Judge in A exercise of Constitutional jurisdiction. As noted above,. The learned Judge has based his findings regarding the attestation of inheritance mutation and the transfer of claim to Chak No,127/GB on the facts stated in the order of the Settlement Commissioner; Learned counsel was unable to point out any material misreading of evidence or any other serious flaw or infirmity in the findings recorded by the learned Judge in the High Court. On perusal of the record, we find that it has throughout been accepted that Niaz Din was given some temporary allotment in Chak No,127/GB in 1948 and he left that Chak for some unknown destination and later died in Lahore in 1958. The learned Judge is, therefore, right in observing that there is no evidence on record to show that the respondents when making an application for being treated as allottees of Chak No,127/GB or at the time of entry/sanction of mutation of inheritance knew that their father was alive. It was also not denied by the learned counsel that in the application moved by Bashir respondent who was then minor, there was no prayer made for transfer of clatin and it was the Deputy Settlement Commissioner who ordered the transfer of the claim. It has, therefore, been rightly held by the learned Single Judge that the respondents could not be said to have acted fraudulently. Be that as it may, the learned Single Judge was perfectly justified in taking the view that since the land in dispute had been permanently settled on the respondents against their verified claim, it was not just.And proper to uproot them after more than three decades and that, too, at the instance of the present petitioners who were ionly informers and were not the sitting allottees of the Chak. In our view, the learned Judge in the High Court has examined the case of both the parties from all possible angles apt' has rightly and for good reasons declared the orders of the Settlement Authorities as without lawful authority and of no legal effect. The impugned judgment is also just and fair as we find that a direction has been issued to the Chief Settlement Commissioner also to settle the claim of the present petitioners as to their balance units on any other available land.
11. Upshot of the above discussion is that no case is made out by the petitioners for the grant of leave to appeal against the impugned judgment. Both the petitions are accordingly dismissed but we reiterate the observation/direction contained in the impugned judgment to settle the pending claim/units of the petitioners on some other available land. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.