1. SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 28-4-1997, whereby the writ petition filed by respondent No,1 was accepted and the allotment in favour of Mst. Hassan Jan, the predecessor-in-interest of the present appellants was held to be violative of law.
2. 2.The brief facts of the case are that land measuring 22 Kanals and 2 Marlas, comprising Survey Nos.4603 and 4682, situate in village Gorah, Tehsil Pallandri, was allotted to late Mst. Hassan Jan as widow of a 'Shaheed'. She had also issues from her ''Shaheed' husband. Subsequently, she contracted second marriage with Muhammad Afsar, one of the appellants. Respondent No,1 filed a revision petition against the allotment of Mst. Hassan Jan, first before the Rehabilitation Commissioner and thereafter, before the Custodian challenging her allotment on the ground that in fact the land in question was allotted to his father, Mukhtar Khan, in the year 1949. However, his claim was negatived by the aforesaid authorities holding that he could not prove any allotment either in favour of his father or in his favour. Therefore, Samundar Khan, respondent, filed a writ petition in the High Court challenging the order of allotment of Mst. Hassan Jan, deceased, which was affirmed by the Rehabilitation Commissioner and the Custodian. The High Court accepted the writ petition observing that as Samundar Khan, respondent, owns land measuring 14/15 Kanals, the land in dispute might be allotted to him; and that in any case the allotment in favour of Afsar Khan, appellant, herein, was more than 90 Kanals, i,e,, beyond the prescribed scale and was, thus, illegal.
3. 3.We have heard the arguments and perused the file. Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for the appellants, has contended that the respondent did not challenge the orders passed in favour of Mst. Hassan Jan by the Rehabilitation Commissioner and the Custodian on the ground that she had the allotment in excess of the prescribed scale; the Multiple Judge, according to the case of the respondent himself, had cancelled the allotment of Mst. Hassan Jan in excess of 60 Kanals. The learned counsel has further contended that the High Court did not cancel the allotment of Mst. Hassan Jan on the ground that she was not entitled to the allotment as a dependent of ' Shaheed' after her remarriage, as was the case of the respondent. The learned counsel has further argued that if the respondent had any grievance against the order of allotment or dismissal of his revision petition by the Custodian, he could seek the review of the same instead of filing the writ petition. He has vehemently argued that as the respondent had alternate remedy by way of review before the Custodian, he was debarred from invoking the jurisdiction of the High Court by filing the writ. He has referred to a case reported as Faqir Muhammad v. Custodian of Evacuee Property (1996 SCR 349) in support of his contention. The learned counsel has particularly drawn our attention to paragraph 6 of the impugned judgment of the High Court and has argued that the findings of the High Court are self-contradictory and ambiguous. He has maintained that the findings go beyond the points agitated by the respondent before the Rehabilitation Commissioner and the Custodian.
4. 4.Syed Siddique Shah Bokhari, Advocate, the learned counsel for the respondent, has controverted the arguments advanced by the learned, counsel for the appellants. He has argued that the respondent has challenged the allotment of Mst. Hassan Jan on the ground that she did not remain dependent of Shaheed' after her remarriage and, thus, she was not entitled to the allotment, especially so when her allotment to the tune of 30 Kanals was cancelled by the Multiple Judge. The learned counsel has further argued that as the verdict of this Court, in the authority relied upon by the learned counsel for the appellants, was given after the filing of the writ petition by the respondent, the writ cannot be dismissed on the ground that the respondent had alternate remedy for the redressal of his grievance and, thus, the writ petition was incompetent.
5. 5.We have given our due consideration to the arguments raised at the Bar. It may be observed here that the perusal of the impugned judgments of the Rehabilitation Authorities and the Custodian reveals that the case of the respondent before the said Authorities was that Mst. Hassan Jan was not entitled to the allotment after remarriage and that before the allotment of Mst. Hassan Jan, the land had been allotted to Mukhtar, the father of the respondent, as dependent of a 'Shaheed'. The Rehabilitation Commissioner and the Custodian came to the conclusion that there was no allotment in favour of the father of the respondent as was alleged by him; and that Mst.
6. Hassan Jan was not debarred from obtaining the allotment of the evacuee property as dependent of a 'Shaheed' after her remarriage. The High Court did not annul the aforesaid findings of the Rehabilitation Authorities and the Custodian; it accepted the writ petition on an extraneous ground which even according to the argument of the learned counsel for the respondent was not the case of the respondent before the High Court. The question of consideration of entitlement for the allotment of the property in dispute to the respondent would have arisen only if the allotment of Mst. Hassan Jan, deceased, was found violative of law and cancelled. The High Court merely observed in the impugned judgment that as Afsar Khan had the allotment of more than 90 Kanals, he was not entitled to the allotment of the land in question. It may be observed here that the question of the legality of allotment of Mst. Hassan Jan was to be resolved by the High Court and not that of Afsar Khan and others; because Afsar Khan did not obtain the allotment in his own right; he succeeded to the allotment of Mst. Hassan Jan as one of her heirs. Similarly, Samundar Khan, respondent, at no stage, claimed the allotment of land in question in his own right as being destitute rather his case has been that he was entitled to retain the allotment of the land in question as an heirs of his father. It has already been observed that his contention regarding the allotment of land in question in favour of his father was repelled by the Rehabilitation Commissioner as well as by the Custodian. For elucidating the matter, it would be expedient here to reproduce paragraph 6 of the judgment of the High Court below:-- "According to the petitioner, Muhammad Afsar Khan, the husband of Mst. Hassan Jan (deceased) owns 31 Kanals of evacuee land in his name. Obviously, the allotment of 95 Kanals of the land in favour of Mst. Hassan Jan (deceased) is illegal. The respondents' claim that Mukhtar Khan, father of Muhammad Afsar Khan was owner of 38 Kanals of land, as such the share of Muhammad Afsar Khan is about 14/15 Kanals only. Even if this position is accepted, still the allotment of 95 Kanals remains illegal. This aspect of the case was neither taken into consideration by the Rehabilitation Commissioner nor Custodian and the learned Special Judge Multiple Allotment also failed to give his finding regarding the total acreage of land held by the allottees."
7. 6.It is evident from the above paragraph that while discussing the right of allotment of Samundar Khan to the land in question, the High Court has observed that Afsar Khan, the father of the appellant, owned land measuring 14/15 Kanals only. According to the learned counsel for the respondent, the High Court has by oversight instead of mentioning the name of Samundar Khan, respondent, wrote the name of Afsar Khan, appellant. Even if it is assumed that this was so, that would not support the order of cancellation of allotment of Mst. Hassan Jan because even if Samundar Khan is found to have owned land to the extent of 14/15 Kanals, he is not entitled to get the cancellation of the allotment made in favour of Mst. Hassan Jan on that score. Because, Samundar Khan would not be entitled to the allotment of evacuee property under the relevant law, until and unless he further proves that he had no other adequate source of income. Thus, the findings of the High Court are misplaced and are not sustainable in view of the facts enumerated above.
8. In the light of what has been stated above, we accept the appeal with costs, set aside the impugned order of the High Court and maintain the allotment order made in favour of Mst. Hassan Jan, deceased. Consequently, orders of the Rehabilitation Authorities and the Custodian are restored. As the appeal has otherwise been disposed of on merits, we need not dilate upon the question as to whether the respondent was competent to invoke the writ jurisdiction of the High Court because he had an alternative remedy by way of review petition to the Custodian.