1. ' Briefly stated this petition has arisen out of the following facts:- ' The petitioner and one Rehmatullah father of respondents 5, 6 and 7 were claimant/displaced persons from Rajgarh in Bikaner State now forming part of India. The claim of the petitioner was verified by the Central Record Office, for 20 bighas equivalent to 380 P. I. Units I e. 11-70 acres. A fardi- - hamat dated 22-10-1959 was issued to the petitioner for the area verified in his name. The respondents 5 to 7 were provisionally allotted an area of 54.02 acres of agricultural land in deh 22/25 Dad taluka awabsbah on a certificate of interim relief issued by the Central Record Office, Lahore in the year 1957. On verification by the Central Record Office, Lahore the father or respondents 5 to 7 was found entitled to 33.14 bighas equivalent to 11.21 ghuntas. Such a fardihaqiyat dated 5th March, 1959 was issued containing the area verified as against his three claims. The land found in excess of entitlement of the respondents 5 to 7 thus became available for resumption. Accordingly out of the land provisionally allotted to the respondents 5 to 7 Survey Nos.
2. 86/1, 4 and 88/3 measuring 12 acres were allotted to one or. Ansar Hussain on 17-12-1959 whereas Survey Nos. 103/2, 4 and 104/1, 2 measuring 14 acres were allotted to petitioner on 2-2-1960 in lieu of their respective claims. The remaining area of 22.36 acres was however, left with respondents 5 to
7. On 15-2-1960 the claim of the father of respondents 5 to 7 was re-verified aad three fardihaqiyats showing his entitlement to an area 140.01 bIghas equivalent to 54.24 acres were issued. After the re-verification of their claim the respondents 5 to 7 made an effort for restoration of the land taken away from them. But meeting with no success they filed Constitutional Petition No, 431/R of 1960 in the then High Court of West Pakistan at Lahore which was heard by a Division Bench and by tbeir judgment dated 29-9-1964, their Lordships were pleased to set aside the order of cancellation of land from the names of respondents 5 to 7 and its allotment to petitioner and Dr. Ansar Hussain and remitted the case to A, R. C. Respondent 4 for fresh decision.
3. ' After remand, on 13-8-1965 the respondent 4 ordered that the total area shown in fardthaqiyats issued to respondents 5 to 7 be satisfied from the area originally allotted to them on temporary basis. Dr. Ansar Hussain preferred an appeal against the aforesaid order. This appeal was upheld by respondent No, 3 who by his order dated 23-10-1965 held that the respondents 5 to 7 were not in possession of the land in question on 17-12-1959 and that it fell out of their possession as soon as the time of filing urardari expired. The respondents 5 to 7 then filed a revision application against the aforesaid order of respondent 3 before respondent 2 who by his order dated 6-12-1965 confirmed the order dated 13-8-1965 passed by A. R. M /A. R. C. And held that the respondents 5 to 7 were entitled to claim reservation of area temporary allotted to them for satisfaction of the enhanced area as a result of their uzerdari and their entitlement was therefore ordered to be satisfied from this area. Dr. Ansar Hussain preferred a second revision before respondent 1 who by his order sated 21-6-1966 held that he (Dr. Ansar Hussain) be all awed to retain the disputed land allotted to him and respondents 5 to 7 may also be allowed to retain rte remaining area of their allotment.
4. ' On 27-4-1972, the respondents 5 to 7 made an application to respondent 4 requesting therein that as the order dated 13-8-L65 passed by him has not been contested in any manner by the petitioner, the same may be implemented and mutation orders in respect of the land allotted to the petitioner be issued in their favour. The respondent 4 rejected this application by his order dated 20-3-1973. The respondents 5 to 7 preferred an appeal which was heard by respondent 2 who by his order dated 20-11-1973 which is impugned in this petition set aside the order dated 20- 3-1973 passed by A. R.M./ A. S. C. (Lands) and cancelled the allotment of petitioner in respect of the land allotted to him.
5. ' It is in these circumstances that the petitioner has filed the present petition wherein he has prayed for declaration that the order impugned herein is illegal and without lawful authority and that the allotment of land made in favour of petitioner is valid.
6. ' Mr. Rasheed Ahmed the learned counsel for the petitioner has assailed the impugned order on the following grounds :-
(I) The objections filed by respondents 5 to 7 against the non-verification of their claims in respect of the balance of land being time-barred, they could neither claim reservation of any land nor its restoration subsequently.
(ii) The order of A. R. C. Dated 13-8-1965 whose implementation was sought by respondents 5 to 7 did not exist at all as it was set aside by order dated 23-10-1965.
7. ' Before examining the contentions raised by the learned counsel for the petitioner it is pertinent to note that after the allotment of petitioner and Dr. Ansar Hussain was cancelled and the case was decided afresh on 13-8-1965 by A. R. C. On remand, Dr. Ansar Hussain challenged the said order and finally succeeded in retaining the land allotted to him but the petitioner did not take any steps to impugn this order with the result that litigation between Dr. Ansar Hussain and respondents 5 to 7 before various settlement authorities remained confined to the land allotted to Dr. Ansar Hussain which was the only subject-matter of litigation between them.
8. ' In support of his first contention the learned counsel for the petitioner submitted that since the respondents 5 to 7 did not file their uzerdarI (objection) in time, they were not entitled to claim reservation of the area temporarily allotted to them. He further submitted that since the petitioner was allotted an area of 14.00 acres of land in lieu of his claim out of the land temporarily allotted to respondents 5 to 7 at a time when it was found in excess of their entitlement, the respondents 5 to 7 could not claim its restoration subsequently even if their claim was later on revivified for an area more than the one verified earlier. I am afraid I cannot go into this question which was examined by their Lordships of the Division Bench of the then High Court of West Pakistan, Lahore in an earlier Writ Petition No, 431/R of 1960 filed by respondents 5 to 7 against the petitioner and Dr. Ansar Hussain. The objection that the respondents 5 to 7 had not made any efforts to have their uzerdari verified .Before 30th November. 1959 was not accepted as valid and it was held that respondents 5 to 7 were entitled to have 75% of the area out of their temporary cultivation reserved for them. The petitioner did not challenge these findings.
9. ' In the proceedings before their Lordships Dr. Ansar Hussain who was respondent 1 therein contended that the area allotted to him was cancelled from the names of the present respondents 5 to 7 as early as January, 1959 and that it being no more in their temporary cultivation, this land could not he reserved for them. Since this objection was not noticed by any of the rehabilitation authorities and their Lordships were not inclined to go into this question they held that it would be for the rehabilitation authorities to examine this question again in order to determine the area which was in temporary cultivation of respondents 5 to 7 when they filed their uzerdarles on 11th December, 1959. Por if there was any exclusion of some area in January, 1959 and no appeal was filed by respondents 5 to 7 against it, they could not claim any right to its reservation in November, 1959.
10. ' I has the perusal of the judgment passed by their Lordships would show - that the said writ petition was allowed and the matter was remanded to A. R. C. For fresh decision on a limited question only which the A. R. C. Decided and held that the total area of 140 bighas verified in the name of respondents 5 to 7 be satisfied from the area originally allotted to them on temporary basis.
11. ' The learned counsel for petitioner then contended that the respondents 5 to 7, could not seek implementation of order dated 13-8-1964 as it was set aside in appeal by order dated 23-10-1965. It is however conceded by the _ learned counsel that the petitioner did not challenge the order dated 13-8-1965 and that this order was challenged by Dr. Ansar Hussain only. This being the admitted position, the learned counsel for petitioner seeking the aid of provisions contained in rules 4 and 33 of Order XLI, C P. C. Contended that since the order appealed from proceeds on a ground common to the petitioner and Dr. Ansa"
12. Hussain, any one of them could appeal from the whole order and the Appellate Court could reverse or vary the order in their favour. He further contended that the Appellate Court has power to make any order which ought to have been made and make such further or other order as the case may require, and this poaer may be exercised by the Court notwithstanding that the appeal is as to part only of the order and may be exercised in favor of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
13. Rule 4 is merely an enabling provision which confers a privilege on any one patty to a decree proceeding on a common ground to prefer an appeal. It nowhere lays down that any person who is a necessary party to the appeal can be exclude d and still the appeal will be properly constituted The provisions of rule 4 of Order XLI of the Code cannot be applied where the non-appealing plaintiff or defendant as the case may be has not been impleaded in the appeal at all and is not before the Appellate Court. This view was taken earlier by a Full Bench of the Lahore High Court in the case of Manak v. Ahmed All (1) and it was approved by their Lordships of Supreme Court in the case of Shah Mohammad v. Mohammad Brea (2). However this rule will be inapplicable where the appeal is directed only against that part of the decree which affects the appellant. The petitioner was admittedly no impleaded as a party in the appeal filed by Dr. Ansar Hussain, and he has also failed to show that Dr. Ansar Hussain filed appeal against the whole order and not against that part of order which affected his allotment. Th petitioner and Dr. Ansar Husain held separate claims in lieu of which land was allotted to them. Tbey bad clearly separate rights. The decision dated 13-8- 1965 given by A. R. C. Was confined to a limited question. Under the circumstann s it cannot be said that the decision proceeded on a poin common to the case of petitioner and Dr. Ansar disdain.
14. Consequently, the provisions of rule 4 cannot be applied to the case of petitioner.
15. ' No doubt the powers under rule 33 of Order XLI of the Code are wider than those confer; ed upon the Appellate Court by rule 4. Power under this rule can even he exercised in proceedings in review or revision (AIR 1949 FC 106 and A 1 R 1959 Mad. 367). Very wide discretion is given to the Court in terms of this rule in order to prevent the ends of justice from being defeated. But I am unable to understand how the petitioner can take benefit of these provisions, when even the order on which he banks upon was itself set aside subsequently ' The perusal of order dated 23rd October, 1965 passed by Asstt. Commissioner and D. S. C. (L), Nawabshah shows that the appeal filed by Dr. Ansar Husain was upheld and the order passed by A.
16. R. C. Was set aside but this order was again set aside by Additional Settlement Commissioner
(Land) Nawabshah by his order dated 6-12-1965 which is filed as Annexure "AA" with the Counter- Affidavit of respondents 5 to 7. The final order however was, passed by Mr. Ismail Noon, Settlement Commissioner, Khairpur in a revision petition filed by Dr. Ansar Husain. This order is dated 21-6-1966 and its operative part is as under :- "Under the circumstances discussed above I set aside the order of A. S. C. (L) Nawabshah and direct that the petitioner (i,e, Syed Ansar Husain Rini) be allowed to retain the disputed land allotted to him and the respondents may also be allowed to retain the remaining area of their allotment."
17. ' This order is quoted in the impugned order Annexure 'Cie true copy whereof is filed along with this petition. Thus it is clear that whatever may have been the effect of the order dated 23.10-1965 passed in appeal filed by Dr. Ansar Husain, it stood revised by final order dated 21-6-1966, operative part whereof has been quoted hereinabove which clearly shows that no finding whatsoever was given in respect of the allotment of the petitioner and that only Dr. Ansar Husain was allowed to retain the disputed land allotted to him. The respondents 5 to 7 were also allowed to retain the remaining area of their allotment.
18. ' The net result is that there is no finding in favour of petitioner in respect of his allotment. He therefore cannot plead the aid of provisions contained in rule 33 of Order XLT, of the Code. The contention that order dated 13-8-1965 whose implementation was sought by respondents 5 to 7 did not e sist at all as it was set aside by order dated 23.10-1965 has no force at all.
19. ' No other ground is urged.
20. ' The petition is therefore dismissed with costs.