' MUHAMMAD BASHIR JEHANGIRI, J.---Mst. Shamshad Bibi and another, the petitioners seek leave to appeal against the judgment/order, dated 4-3-1996 passed by a learned Single Judge of the Lahore High Court, Lahore, in Writ Petition No,52-R of 1994 whereby the order of respondent No,7, dated 4-12-1993 was upheld.
2. Shorn of unnecessary details, the facts of the case relevant for the disposal of the titled petition for leave to appeal are that the parties are locked in litigation over land bearing Khatas Nos.1/1, 5 and 6 etc. In village Tornawal, Tehsil and District, Sialkot. It is the common ground between the parties that this land was temporarily allotted to one Mst. Hajran Bibi (Jammu and Kashmir Refugee) who had admittedly died before the year 1968. At one stage while disposing of Writ Petition No,70-R of 1991 filed by Noor Muhammad and 48 others against the Notified Officer etc. Khalil-ur-Rehman Khan, J., as his Lordship then was, passed the following order on 3-3-1993: "After arguing the matter at some length learned counsel for the parties agree that the matter be remanded to the notified officer for further examination of the disputed allotments on the following lines:--
(1) The petitioners who were not party in the earlier round of litigation in their own right or their predecessors shall be weeded out by deleting the names from the array of petitioners. The land which they are claiming shall, therefore, remain allotted in the name of the respondents;
(2) Allotment to the other petitioners will be examined again and they will be allowed to retain the land appearing in their respective original Fard Taqseem. If there is any interpolation the parties will be entitled to make their respective submissions in respect of any such alleged interpolation. The Khasra numbers, thus, appearing in the original Fard Taqseem shall remain allotted in the name of the petitioners and the said Khasra numbers will be deleted from the allotment of the respondents.
(3) The Notified Officer will, therefore, proceed to examine the allotments of the parties in the aforesaid manner and shall dispose of the matter within two months. The parties are directed to appear before the Additional Commissioner (Rev.), Gujranwala, Notified Officer on 7th April, 1993.
This petition stands disposed accordingly. The parties are left to bear their own costs."
3. The Notified Officer by his order dated 4-12-1993 held that the petitioners were not allotted the land as refugees. The land was actually allotted to Mst. Hajran Bibi the mother-in-law of Muhammad Saleem petitioner; Mst. Hajran Bibi died prior to the year 1968 and, thus, the allotment of land in her favour came to an end as it was on temporary basis in her favour only as subsistence holding. According to the Notified Officer, allotment has not heritable, and the petitioner being son- in-law of Mst. Hajran Bibi was not even her heir and could not claim the allotment through the allottee. The application of the petitioner, Muhammad Saleem, was, therefore, dismissed and the allotment made to Mehtab Din son of Hayat Muhammad was maintained.
4. Feeling aggrieved, Shamshad Bibi and Muhammad Saleem filed Writ Petition No,52-R of 1994 against Sheikh Abdul Ghafoor and 6 others, challenged the validity of the impugned order dated 4- 12-1993 passed by the respondent No,7 (Notified Officer) on the ground that it was passed without lawful authority and being of no legal effect. They had further prayed for restoration of the allotment of the land to the petitioners according to Fard Taqseem. The learned Single Judge of the Lahore High Court, who was seized of the writ petition observed as under:-- "I have heard the learned counsel for the parties and have gone through the record carefully. It is evident from the copies of Annexure R/A and Fard Taqseem that Mst. Hajran Bibi was only given temporary allotment of the land measuring 23 Kanals, 19 Marlas for maintenance of Mst. Hajran and her family as Jammu and Kashmir refugee vide Permit No,2684, dated 4-12-1953. The maintenance allowance is not inheritable. The permit has expired on the death of Mst. Hajran Bibi.
Muhammad Saleem being son-in-law of Mst. Hajran Bibi is not entitled even otherwise to inherit the property. Mst. Shamshad Bibi, daughter of Mst. Hajran Bibi, was not applicant as stated above.
Therefore, respondent No,7 wsas justified in disallowing the claim of the petitioners. The impugned order is in accordance with the evidence and relevant record of the case placed on the file and call for no interference in this petition which is accordingly dismissed with no order as costs."
5 Feeling aggrieved the petitioners filed petition seeking leave to appeal.
6. Ch. Muhammad Abdullah, learned Advocate Supreme Court vehemently contended that the Notified Officer while passing the impugned order has not at all, adverted to the parameters of the remand order dated 3-3-1993 passed by the learned Single Judge in the earlier Writ Petition No,70-
(R) of 1991, inasmuch as, he had, inter alia, to decide that the petitioners in Writ Petition No, 70(R) of 1991 who were not party in the earlier round of litigation either in their own right or through their predecessors, should have been weeded out by deleting their names from the array of the petitioners, whereafter the land allotted to the petitioners whose names have not been mentioned as a party who were claiming land in dispute, should not be allotted to the respondents. According to Ch. Muhammad Abdullah, the Notified Officer and the High Court who passed the impugned orders had not at all adverted to this process of weeding out the petitioners who were not party in the earlier round of litigation and, therefore, both the orders are not sustainable in the law.
7. Mr. A.R. Shaukat, learned Advocate Supreme Court, appearing on behalf of the private respondent has attempted to defend the impugned orders.
8. After hearing the learned counsel for the parties at length and perusal of the record of the case, we are of the considered opinion that the learned Notified Officer has not undertaken the exercise in pursuance of clause (i) of the remand order passed in Writ Petition No,70-(R) of 1991 for weeding out the petitioners before him who were not party in the earlier round of litigation either in their own right or due to the predecessors by deleting their names from the array of the petitioners.
9. In this background, we are left with no option, but to convert this petition into an appeal and on acceptance of the same, we set aside the impugned order of the learned Single Judge dated 4-3- 1996 passed in Writ Petition No,52-R of 1994, and that of the Notified Officer, dated 4-12-1993 and remand the case to the Notified Officer for passing order afresh in accordance with the order dated 3-3-1993 passed in Writ Petition No,70-(R) of 1991 by the learned Single Judge and then dispose of the case. Costs to follow the events.