1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J,---In this Constitutional petition, orders dated 30th October, 1983, 18th March, 1984, 24th March, 1984, 3rd April, 1984 and 16th April, 1995, passed by Collector, District Kachhi (now Bolan), Assistant Commissioner/S.D.M.Dhadar, Naib Tehsildar, Sunny and Senior Member, Board of Revenue, respectively, have been challenged. In pursuance whereof, lands allegedly owned by petitioners, situated in Mouzas Khattan, Bhagai, Kolang, Rustam, Chattani, Pir Ahmad Shah and Pear, Sub-Tehsil Khattan, District Bolan, have been transferred on the names of private respondents, in purported exercise of jurisdiction under MLR-64 (West Pakistan Land Reforms Regulation, 1959) (hereinafter referred to as 'Regulation 64 of 1959').
2. ' It is the case of petitioners that they are owners of property situated in different Mouzas, mentioned hereinabove. The Settlement of Tehsil Sunny took place as back as in 1958-59, therefore, on basis of instrument of sale, blood compensation, exchange etc. They were recorded as owners, but the Deputy Commissioner of District Kachhi (now Bolan) vide letter No,SK 746-49 dated 30th October, 1983, directed Assistant Commissioners, Dhadar and others, in whose jurisdiction petitioner's lands are situated, that as under Regulation 64. The petitioners' lands being 'Jagirs' have been forfeited, therefore, they should implement the Notification No,DSH 538-65/4395-LC, dated 29th October, 1965. According to petitioners, in pursuance of said letter, without issuing notices to them, mutation entries from their names were cancelled by Revenue Officers and on coming to know about it, they approached the Member, Board of Revenue, by filing Revision Petition under MLR 115 read with rule 12 of Balochistan Land Reforms Rules, 1972, but the said petition has been dismissed on 16th April, 1995.
3. ' After admission of petition, Mr. Basharatullah, learned counsel for respondents, filed C.M.
4. Application No,297 of 1996, on behalf of some of the respondents, informing that before institution of petition, some of the respondents were dead, therefore, their legal heirs are to be added as party.
5. ' Mr. Shakeel Ahmad, learned counsel for petitioners, instead of filing reply to the application, submitted another application being C.M.No,320 of 1996, under Order XXII, Rule 1 read with Order 1, rule 10, Order VI, Rule 17 and section 151, C.P.C., seeking amendment in the title of petition.
6. Respondents' counsel filed reply to this application, wherein it was prayed that petition be dismissed, as it has been filed against dead persons, therefore, deserves to be abetted in toto. In this behalf, both the counsel for parties cited judgments, in support of their respective contentions.
7. Learned Advocate-General, also prayed for dismissal of petition on this score as well.
8. ' We passed order dated 12-8-1996, on both the applications, whereby petitioners were permitted to implead heirs of respondents, who were dead before institution of petition. However, question concerning abatement or otherwise of petition, was deferred for consideration, independently, at final hearing of petition.
9. ' Mr. Basharatullah, learned Advocate, urged that before dilating upon merits of case, this question may be decided, preferably.
10. ' Mr. Shakeel Ahmad, learned counsel for petitioners, however, contended that since after the order dated 12th August, 1996, legal heirs of respondents, who were stated to be dead before filing of petition, have been brought on record, therefore, petition does not suffer from any disqualification.
11. As such, it is not necessary to examine; whether instant petition against dead persons is competent or not? At this stage.
12. ' Both the learned Advocates, relied on judgments which they had placed for perusal, during hearing of C.M.277 and 320 of 1996.
13. ' It may be noted that in our earlier order, we observed that learned counsel for respondents, while filing C.M. 277 of 1996, had not objected on maintainability of petition, on the ground that it has been filed against some of the dead persons. Contrary to it, he sought directions to petitioners' counsel to bring on record legal heirs of dead persons, correct names of some of respondents and also to delete respondents, whose names have been mentioned more than one time in title of petition. As far as, these requests were concerned, they were allowed in terms that while disposing of C.M. 320 of 1996, permission was accorded to petitioners' counsel to remove all the defects, which were pointed out by respondents' counsel, in his application (C.M.277 of 1996). However, regarding question of abatement or otherwise of petition, because admittedly it was filed against some of the dead persons, was left to be decided independently at the time of final disposal of petition.
14. ' We have examined relevant provisions of Code of Civil Procedure i,e, Order XXII, Rule 6, according to which, if one of several defendants or a sole defendant dies and Court receives intimation which is required to be furnished by a person nominated by him in written statement as required under Order XXII, Rule 13, C.P.C., then subject to condition that right to sue survives, the Court on an application made in that behalf, shall cause the legal representatives of deceased defendant, to be made party and shall proceed with the suit. Whereas in the instant case, we are confronted with a situation, where some of the respondents had died, prior to filing of petition. Therefore, to overcome such difficulty, Order XXII does not lay down any procedure, except exercising jurisdiction under Order 1, Rule 10 read with section 151, C.P.C., however, subject to condition that cause of action is indivisible. In this behalf, contention of Mr. Basharatullah, Advocate, is that if a person was dead before filing suit against him, Court is not authorized to implead his legal heirs in exercise of jurisdiction under Order 1, Rule 10, C.P.C. Reliance was placed by him on AIR 1924 Bombay 104. A perusal of this judgment, reveals that same is not of any help to him, because in this case, a suit was filed against a firm, whose sole proprietor was dead before instituting proceedings and in that context, it was held that summons issued against dead persons is a nullity and if someone had received summons on his behalf, it would be again another nullity in the eye of law. He then relied on AIR 1946 Sindh 20, PLD 1963 Dacca 364, PLD 1964 (W.P.) Pesh. 110 and 1985 CLC 2555.
15. ' On behalf of official respondents, Mr. Yakub Khan Yousafzai, the then Advocate-General, referred to 1990 CLC 1243. In this judgment it was held that 'it is well-established that where a suit is filed against several defendants, the heirs of one of the deceased defendant be brought on record. At the best these petitions are to be treated to have been filed against legal representatives of deceased respondents, on the date when they were brought on record. He also placed reliance on 1990 SCMR 553. In this case, the allottee of land died before filing of Constitutional petition, and the Hon'ble Supreme Court held that Constitutional petition against dead person's allotment suffer from no defect, if while challenging the allotment, allottee's sole successor-in-interest, had been impleaded. With utmost respect, in our opinion, this judgment is distinguishable, from the proposition, under consideration.
16. ' Mr. Shakeel Ahmad, Advocate, relied on AIR 1926 Lah. 153, AIR 1937 Sindh 47, AIR 1937 Lah. 794 and PLD 1969 Lah.
880. In all these judgments, it was held that if any of the respondents was dead at the time of filing petition, petitioner is competent to cause in title, names of legal heirs of deceased respondents.
17. Facts narrated in these cases appear somewhat identical with the facts of instant case. Therefore, we are also inclined to hold that instead of non-suiting the petitioners for such hypertechnical reason, Court seized with the matter is always empowered to allow, substitution of dead respondents with their legal heirs, provided cause of action is indivisible. A perusal of the contents of petition and revenue entries, attached therewith, indicate that petitioners have prayed for mutating lands, entered on name of respondents including those who were dead at the time of filing petition, on their names, .Because according to their case, respondents had been wrongly shown as owner of property. Since no separate relief has been claimed against respondents with reference to particular Khasra number, occupied by them as owners, therefore, whatever order will be passed, it will effect to all respondents jointly. Thus, following the rule of law, laid down by Hon'ble Supreme Court in Shah Muhammad and others v. Muhammad Baldish PLD 1972 SC 321, it is held that cause of action is indivisible and each respondent, including those, who now have been substituted after order dated 12th August, 1996, are necessary parties, therefore, petition will be disposed of on merits.
18. ' Mr. Shakeel Ahmad, learned counsel for petitioners argued that on 30th October, 1983, Deputy Commissioner, Kachhi (now Bolan) directed for changing entries in revenue record from names of petitioners, treating the land as 'Jagir', whereas documents annexed alongwith the petition, furnishes overwhelming evidence that total property belongs to petitioners being propriety owners, because either they purchased some of the property, in pursuance of sale-deed, Sanads or they are owners, because their predecessors-in-interest- or they themselves had obtained it, as a blood compensation. He also argued that Regulation 64 of 1959, was repealed by Regulation 115 of 1972, therefore, in the year 1983, the Deputy Commissioner had no lawful authority to direct cancellation of revenue entries from names of petitioners in favour of respondents, under a law which was repealed. As such, the action being nullity in eye of law, deserves to be struck down. He also contended that no notice before changing entries, was given to petitioners, as such, they have been condemned unheard. Under these circumstances, question of limitation in filing petition, would not be an impediment in their way. It was also contended by him that as per revenue record, attached with the petition, petitioners have been shown self-cultivators being 'Seemul Arz' therefore, their property cannot be treated as 'Jagir' under Regulation 64 of 1959. In this behalf, his contention was that on 20th April, 1966, the then Deputy Commissioner Kachhi (now Bolan) solicited directions from Commissioner, Kalat Division, about abolition of 'Jagirs' in Kachhi District and Commissioner in its Memo. No,8308- 11/L/64/A/REB, dated 25th June, 1966, directed the Deputy Commissioner that landed property situated in Tehsil Dhadar and Bala Nari etc. Popularly known as 'Inam Area' cannot be treated as 'Jagir'. Against the said order of Commissioner, respondents or their predecessors-in-interest, filed Constitutional petition before Erstwhile High Court of West Pakistan, Lahore on 26th July, 1967, which was dismissed. Then some of the respondents filed Civil Petition for Special Leave to Appeal before Hon'ble Supreme Court, whereupon leave to appeal was granted on 9th October, 1967, but subsequently for want of prosecution, leave granting order was rescinded. While summing-up his arguments, he prayed that under these circumstances, petitioners are entitled for relief, as prayed for, by them.
19. ' Mr. Basharatullah, learned counsel for respondents urged that order dated 30th October, 1983 was issued by Deputy Commissioner, to implement the order of abolition of 'Jagirs' which has taken effect on 3rd March, 1959, because all the 'Jagirs' recorded in revenue record of Tehsil Dhadar, were abolished automatically, in view of self-executory provisions of law i,e, Regulation 64 of 1959.
20. Therefore, notwithstanding the fact, that Regulation 115 of 1972, had repealed to earlier Land Reforms Ordinance, the Deputy Commissioner rightly issued directions to his subordinate revenue staff to record respondents, as owners of the land. He also argued that as per definition of word 'Jagir' in its extended meaning; all types of holdings free of revenue tax etc. Were treated as 'Jagirs' and as in instant case, in Settlement Record of Tehsil Dhadar, prior to 1956-57, petitioners were shown as 'Jagir' holders, therefore, their interests/rights were liable to be abolished. The documents to establish ownership, placed on record by petitioners, cannot be considered without formal proof, to hold that petitioners were not 'Jagir' holders, but owners of the land. As far as Memorandum of Commissioner, Kalat Division, dated 25th June, 1966, is concerned, it has also no value, because neither its certified nor true copy has been placed on record. Similarly in absence of copy of judgment passed by the then High Court of West Pakistan, Lahore, in Constitutional petition filed by some of the respondents, no definite opinion in favour of petitioners, can be formed by this Court.
21. He strongly emphasised that petition badly suffers from laches, for which, no explanation has been offered in Memo. Of petition, despite the fact that petitioners were fully aware about change of entries from their names on names of respondents, because respondents on having acquired proprietary rights, in property, at least after 1983, never paid share of 'Bhatai' to them. But fully knowing all these facts, they kept on waiting for an indefinite period and invoked the jurisdiction of this Court after a period of about 12 years from date of passing impugned order i,e, 30th October, 1983. Admittedly petitioners were recorded in 1956-57, as Jagir holders in revenue record, but they never challenged these entries before a competent forum. Even now in instant petition, their prayer is to restore revenue entries which were existing in their favour, immediately before passing of order dated 30th October, 1983.
22. ' Mr. Yakub Khan Yousafzai, the then Advocate-General, supported the contentions of respondents' counsel and pointed out that vide notification dated 29th October, 1965, Regulation 64 of 1959, was made applicable in Tehsil Dhadar and thereafter petitioners were seized to claim themselves as owners of land. He also prayed that as petition suffers from laches, therefore, it merits dismissal, without dilating upon respective contentions of parties' counsel.
23. ' We have heard the parties' counsel at length and also carefully perused the documents, so placed on record.
24. At the outset, we are inclined to observe that in exercise of writ jurisdiction under Article 199 of the Constitution, only undisputed and proved documents, are taken into consideration, whereas those documents, which are neither admitted nor they are admissible under various provisions of Qanun-eShahadat Order, 1984, are to be kept out of consideration. Since petitioners have not placed on record, any material/documents, showing their proprietary rights over the property, which are admissible under the law or otherwise can be considered being proved documents, therefore, any Sanad indicating that petitioners have purchased some of the land or any other instrument showing that land was given to them, in lieu of blood compensation, cannot be considered in their favour, as respondents have objected on their admissibility.
25. ' Now turning towards the maintainability of petition, as it suffers from laches, it may be noted that petitioner's claim is that respondents were their tenants and they had been paying them 'Bhatai'
26. (share of produce) regularly from time immemorial, whereas respondents had cate1gorically denied their such assertion. According to them, they are occupying the lands in their own rights. Be that as it may, at least after 30th October, 1983, when respondent-Deputy Commissioner passed order directing implementation of abolition of 'Jagirs' respondents must have stopped paying 'Bhatai' to petitioners. Therefore, it was but natural for them, to have enquired, as to why they have adopted hostile attitude in refusing their due share from produce and necessarily on coming to know about adverse action taken by Deputy Commissioner against them, they were bound to invoke legal available remedy for redress of their grievance. Unexplained silence by petitioners for a period of more than 12 years, is sufficient to draw inference that they intentionally did not avail opportunity to question, as to why entries in revenue record have been changed from their names, therefore, after lapse of a considerable period, petitioners cannot claim condonation of delay except blaming themselves for their conduct. No doubt there is a difference between a statutory period of limitation and laches, where no time has been prescribed for initiating action, but a person who comes forward to claim an equitable relief, remains under a legal obligation to furnish plausible explanation for not knocking the door of forums, meant to provide justice with promptitude. Merely saying that no notice was given to petitioners by respondent-Deputy Commissioner, before changing revenue entries from their names, seldom, is not sufficient to condone the delay, because question of issuing of notice or providing opportunity of hearing before taking action, is also not a Rule of universal nature. It can only be invoked, if aggrieved person is able to establish that he has been deprived from his vested right. At this stage, without prejudice to other respective contentions of parties' counsel, it may be mentioned that in revenue record being relied upon by petitioners, they have been shown as Jagir-holders. Therefore, after the promulgation of Regulation 64 of 1959, whatever interest they had in lands, it stands extinguished. As such, they were not being deprived from their proprietary rights, available to them in the property. Thus, non-service of notice upon them, before taking adverse action, was not fatal.
27. Hence, it is concluded that petition badly suffers from laches, for which, neither any explanation has been offered in Memo. Of petition in terms of Order-VII, Rule 6, C.P.C., because a Constitutional petition is to be presented on following the procedure laid down in Civil Procedure Code as it has been made applicable on these proceedings in view of the pronouncement of Hon'ble Supreme Court reported in PLD 1970 SC 1, nor request to treat petition within reasonable time, has been made during arguments of case.
28. ' Although we have found petition not maintainable for the reasons, noted hereinabove, but keeping in view the interests of parties, we also desire to examine the case of merits. As it has been observed hereinabove, that in the Settlement of Tehsil Dhadar, petitioners were recorded as Jagir- holders in 1958-59, but they did not challenge such entries subsequently before any competent forum. In the meanwhile Regulation 64 of 1959, was promulgated with effect from 3rd October, 1959, with its commencement, at once, except in the unsettled Districts of Quetta and Kalat.Divisions, where it shall come into force on such date and dates, as the Commission may have notified in the official Gazette etc. As far as Dhadar where land in question is situated, is concerned, at that time, it was part of Kalat Division being Tehsil of District Kachhi. Mr. Yakub Khan Yousafzai, the then Advocate-General, although had referred to Notification dated 29th October, 1969, according to which, Regulation 64 of 1959, was enforced in Dhadar and Jhal Magsi Tehsils with effect from 7th February, 1959, but in our opinion, there was no necessity for issuance of such Notification, as far as Tehsil Dhadar is concerned, because from the admitted facts of case, we can see that before coming into being of Regulation 64 of 1959, Tehsil Dhadar was a settled area. Anyhow, even if for sake of arguments reliance is placed on said Notification, again it leads us to conclude that from 7th February, 1959, Regulation 64 of 1959, was made applicable over there with its commencement, at once. We have carefully surveyed various provisions of Regulation 64 of 1959, but we failed to notice any provision, available therein, to hold that after its promulgation, concerned revenue authorities with regard to abolition of 'Jagirs' were required to do any overt act, namely; by way of inviting claims of owners to determine, whether, they have given the property as 'Jagir' to the occupants whose names are recorded in revenue record or by obtaining or getting filled any particular forms from any of them primarily interested in lands etc. Therefore, we are of the considered opinion that any statute, provisions of which are not required to be operated by subsequent act, is deemed to be self-executory. Thus, even without separately directing forfeiture of interest in 'Jagirs' as far as holders of 'Jagirs' are concerned, their rights would be deemed to be extinguished, on the, day when law i,e, Regulation 64 of 1959, was promulgated. It is evident from para.2(vi)(a) of the Regulation that word 'Jagir' includes any grant of land by way of 'Jagir'. Actually by using the word 'includes' law-givers, had intention to include any grant of land, allowed to any person on whatsoever consideration, shall be treated as 'Jagir'. In this behalf Hon'ble Lahore High Court in a ceremonial Judgment reported in PLD 1967 Lah.533, interpreted word 'Jagir' with its reference to Punjab Abolition of Jagirs Act, 1952. At this stage, it may be mentioned that under the said Act as well as under Regulation 64 of 1959, to some extent, definition of word 'Jagir' is identical.
29. While interpreting this expression, definition from other corresponding statutes of the word 'Jagir' was also examined and finally it was held as follows:-- "We have held that pardon or exemption from land revenue, or in other words, the grant to retain the land revenue himself was a Jagir in the ordinary sense of this word and was, therefore, hit by the provisions of the Punjab Abolition of Jagirs Act IX of 1952. Apart from the above, however, we are also of the opinion that if not falling within the ordinary meaning of the word 'Jagir', the present case was covered by the extended meaning of the word as given in section 2(1) of the Act.
30. According to the said section 'any. Assignment or release of land revenue' is also a Jagir. This is clearly a case of release of land revenue, because when the grantee is being given exemption from paying land revenue or when he is being given a land revenue free estate, it means that he is being released from the liability to pay land revenue. Learned counsel for the petitioners submitted that the phrase 'release of land revenue' has a technical meaning and is used in such cases where land revenue is remitted to the owner himself. He states that it relates to those estates which are Mu'afis.
31. On the other hand, when it is assigned to or released in favour of a third person (that is a person other than the owner) then it is known as a Jagir. In our opinion, there is no need to import this technical distinction in the present case. As will be evident from the description of various land tenures as reproduced from various textbooks in the earlier part of this judgment, the distinction, which the learned counsel is trying to maintain, has ceased to exist with the passage of time. And now pardon of the land revenue is also known as Mu'afi or Jagir. Anyhow, without conceding that release of land revenue has any technical meaning, as is being suggested by the learned counsel for the petitioners, in the present case, the intention of the act is not to give that technical meaning to it, because the words 'assignment' or 'release' have been prefixed by word 'any'. The use of the word 'any' shows that the intention is not to give the words following it any restricted or technical meaning, but rather to enlarge them. In this way, every case where land revenue has been released whether in favour of the owner or a third person, will be covered by this phrase. It was laid down in Wooler v. North Eastern Breweries (1910) 1 KB 247, that 'any' is a word which excludes limitations or qualifications. It connotes wide generality. The same was the view expressed by Fry, LJ. In Duck v. Bates (1884) 13 QBD 93. This proposition of law was accepted as correct by a Full Bench of this Court reported in Dr. Cowas C. Mehta v. Additional Settlement and Rehabilitation Commissioner and others PLD 1963 Kar.
938. In that case a question arose as to whether occupants of houses which had been declared as big mansions were eligible for protection given in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958). The wording of the said section was to the effect that protection was available to any person who was in possession of 'any, evacuee house, etc.' Farooqi, J., who wrote the leading judgment held as follows at page 952:-- 'Now, in the definition of the term 'house' an exclusion had been made in respect of residential premises which might be declared under para.16 as a big mansion. That limitation of the definition was known to the framers of the Act and, therefore, when they came to enact section 30, it appears to us that they advisedly used the word 'any' before 'evacuee house'. It was held by L.J. Fry in the case of Duck v. Bates, that the word 'any' excludes limitation or qualification. It is true that the generality of the expression of the word may be restricted by the subject-matter or the context. But in this case it is clear to us that such a restriction was not contemplated.'
32. ' Respectfully following the said cannon of interpretation, we hold that in the instant case as well as Jagir 'includes' any' assignment or release of land revenue and the intention was to exclude any limitation or qualification. The two words 'includes' and 'any' in the context indicate that the intention was to make the concept of Jagir quite wide."
33. ' Testing the case in hand in view of above definition, we can safely conclude that petitioners had been enjoying Jagir hold interest in the land in question, free of revenue, as they never paid revenue tax, Dalbash etc. Because no document in this behalf, has been placed on record for our perusal. Likewise, presuming for sake of arguments that if petitioners were the owners of property in their own rights, they would have definitely filled up declaration forms under Regulation 64 of 1959 or subsequently under Regulation 115 of 1972, or under Land Reforms Act, 1977, but they had not stated a single word in this behalf, in Memo. Of petition nor copy of any forms or the decision made by authorities of Land Commissioner ever in their favour, has been placed on record. Therefore, merely mentioning that they purchased the land in pursuance of sale deeds or otherwise, they got it as a blood compensation, would not be sufficient to declare them owners of property. As such, it is held that immediately after 3rd October, 1959, all "Jagirs hold rights" in the settled area of Kalat Division including Tehsil Dhadar, stand abolished under para. 21 of Regulation 64 of 1959 and any right, interest or estate granted, assigned, released, created or affirmed by any such 'Jagir' had reverted to Government, free from any encumbrance or charge. Since the Government had acquired ownership of land in question after forfeiting the 'Jagir hold rights' of petitioners therefore, its functionaries had an obligation to ensure distribution of property amongst occupants and they could have not done so, unless revenue record has not been corrected by concerned Revenue Staff. Therefore, on 30th October, 1983, the eputy Commissioner, Kachhi (now Bolan) with lawful authority issued directions to his subordinate revenue staff to record respondents as owners of property and under the circumstances, petitioners have no justiciable claim vis-a-vis to private as well as official respondents.
34. ' Thus, for the discussion, made hereinabove we see no substance in petition, as such, writ as prayed for, is declined and petition is dismissed.
35. ' There shall however, be no order, as to costs. 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.