' CH. MUHAMMAD ARIF, J.---One Naushad Ali son of Abbad Ali, whose successors-in-interest are the private respondents in this appeal by leave of this Court against the judgment, dated 21-9-1993 of the Lahore High Court, Lahore allowing their Writ Petition No,765 of 1983, filed a Mukhbari application on 25-11-1962 against the allotment of Anwar Ali son of Ajaib Ali before Director Enforcement Rehabilitation, West Pakistan. The-then Deputy Settlement Commissioner, Sheikhupura, in his capacity as Chief Settlement Commissioner, allowed the same which resulted in cancellation of allotment of land measuring 361 Kanals and 3 Marlas from the name of Anwar Ali vide order, dated 3-3-1965. Thereafter, the private respondents herein were allotted land measuring 255 Kanals and 1 Marla at Khata No,311 of register RL-II of village Shamke, on 26-6-1965.
2. Ashiq Ali, vendee from Anwar Ali-allottee, challenged the order, dated 3-3-1965 through Writ Petition No, 790-R of 1965 which was allowed on 18-4-1968 and the case remanded for fresh decision after hearing the parties.
After remand
3. The-then Settlement Commissioner with the powers of Chief Settlement Commissioner, confirmed the earlier cancellation-order of the Deputy Settlement Commissioner dated 3-3-1965, after hearing the parties, vide order, dated 22-11-1972. This order was not challenged any further by either Ashiq Ali or Anwar Ali himself. The result was that the allotment in favour of the respondents herein at Khata No,311 of register RL-II of village Shamke held the field.
4. Appellant No,l Muhammad Hussain son of Rehmat Ali, resident of village Shamke, Tehsil Ferozewala, district Sheikhupura filed a Mukhbari application against the private respondents herein and one Anees Ahmed son of Mian Muhammad. The-then Additional Settlement Commissioner with the powers of Chief Settlement Commissioner Sheikhupura, allowed this Mukhbariapplication on 14-5-1974, inter alia, directing that as the second party had been allotted land in lieu of their entitlement in village Ucha Pind, the land allotted at Khata No,311 of register RL-II of village Shamke shall stand cancelled and that against the cancelled land, the pending units of Muhammad Hussain, if any, shall be satisfied. Anees Ahmed son of Mian Muhammad afore- referred, sought recall of ex parte order, dated 14-5-1974 but his such application was dismissed on 2-11-1976 by the concerned officer. The land of Khata of the private respondents herein was then allotted at Khata No,40/41 of register RL-II in the name of Rehmat Ali, predecessor-in-interest of the present appellants on 31-1-1978. It may be stated here that the order cancelling Khata No,311 was also recorded on 31-1-978. Thus, the allotment obtained by the respondents vide order,.Dated 26- 6-1965 was cancelled for the first time in 1978.
5. During the course of remand proceedings in the mukhbari-application of the predcessor-in- interest of the appellants, a part of the aforesaid area was allotted in the name of Mst. Razia Begum on 20-3-1970 at Khata No,36 of register RL-II of village Shamke. This allotment was held to be illegal, void having been obtained during the pendecy of the proceedings and was declared as such and the allotment cancelled by the Settlement Commissioner (Lands) with.. Powers of Chief Settlement Commissioner on 22-11-1972. Further, vide order, dated 31-1-1978, land measuring 90 Kanals out of the disputed land was allotted in the name of Muhammad Hussain- mukhbar/appellant No,1, against the pending units of his father-Rehmat Ali. It was noticed in this order that out of the land allotted at Khata No,313 of the appellants, Khasra Nos.879, 880, 877, 878, 876, 875, 882, 887, 890, 891, 892, 901, 902, 903, 905, 906, 639, 640, 641, 644, 645, 657 and 681 measuring 165 Kanals and 1 Marla which stood allotted to Mst. Razia Begum at Khata No,36/315 was cancelled vide order, dated 17-11-1997 of Mr. Faiz Muhammad, Settlement Commissioner, Punjab and the same was then allotted on 18-12-1977 at supplementary Khata No,40 of register RL-II in lieu of mukhbari-entitlement of Mukhbar against the pending units of Rehmat Ali his father, the remaining 90 Kanals are being allotted to Muhammad Hussain. This order, dated 17-11-1977 cancelling the allotment of Mst. Razia Begum was challenged through Writ Petition No,4/R of 1978 which was, however, dismissed by a learned Judge of the Lahore High Court on 20-8-1991.
6. It may be recalled that in 1970, Mst. Razia Begum had obtained allotment of land in dispute at Khata No,36 of register RL-H of village Shamke. She filed Settlement Revision No,83 of 1972 which was allowed by the Lahore High Court vide judgment, dated 18-3-1976. This judgment was assailed by the predecessor of the appellants, namely Rehmat Ali, before this Court in Civil Appeal No,228 of 1976 which was disposed of, pursuant to a written memorandum of agreement on 5-4-1988 which reads thus:-- "(1) It is agreed that at the time, when the allotment of the land in dispute was made in favour of Mst. Razia Begum on 11-4-1970 at Khata No,36 RL-II of village Shamke, Tehsil Ferozewala, District Sheikhupura, Rehmat Ali, (the predecessor-in-interest of the appellants) also had a right to be considered for the allotment of the said land on the basis of his pending unsatisfied claim/P.I. Units in the revenue estate, if any.
"(2) It is also agreed that the respective parties shall have the right to agitate before the relevant Settlement Authorities that the claim of one or the other was not genuine or pending and not eligible for the allotment of the aforesaid land under the law.
"(3) That an order, dated 17-11-1977 has already been passed by Mr. Faiz Muhammad, Settlement Commissioner (Lands) exercising the powers of the Chief Settlement Commissioner holding that the allotment of Mst. Razia Begum in respect of the disputed land in village Shamke was in excess of her entitlement and Writ Petition No: 4/R of 1978, on behalf of Mst. Razia Begum, is pending before the Lahore High Court, Lahore, assailing the validity of the said order, the parties agree that in terms of the present compromised stand of the two parties, the said parties shall be at liberty to press their respective claims for the allotment of the disputed land before the Lahore High Court before any other Authority, as the case may be."
7. The upshot of the above narration of facts is that both, Rehmat Ali/predecessor of the appellants and Mst. Razia Begum, were at liberty to press their respective claims for the allotment of land in dispute in Writ Petition No,4/R of 1978 or before other Authorities. Writ Petition No,4/R of 1978 stands resolved and, according to all concerned, Mst. Razia Begum had not challenged the matter any further. Rehmat Ali, however, filed Writ Petition No,7/R of 1992 seeking implementation of order, dated 20-8-1991 passed in Writ Petition No,4/R of 1978 with the further prayer to put an end to the proceedings initiated by Director Anti-Corruption Punjab and Circle Officer Anti-Corruption Punjab, Lahore. The implementation of order, dated 20-8-1991 was sought by incorporating the necessary entries in respect of the allotment of land in favour of Muhammad Hussain in the Revenue Record.
Their case was that the allegation of interpolations in Rehmat Ali's claim Form ,No,105, made in the report of the Anti-Corruption Establishment, was without foundation and the proceedings are void ab initio.
8. After hearing the learned counsel for the parties the learned Judge in Chambers of The Lahore High Court, Lahore allowed Writ Petition No,766 of 1983, orders, dated 14-5-1974 and 31-1-1978 were declared to have been passed without lawful authority and of no legal effect with the result that the allotment in the name of the appellants was also declared to be illegal and of no legal effect.
Paras. 9 and 10 of the judgment in appeal read thus:-- "9. I have considered the respective submissions of the parties. The position which emerges from the record is that though the order, dated 3-3-1965 cancelling the land and accepting the mukhbari application was set aside by this Court in Writ Petition No,790/R of 1965 but the allotment made at Khata No,311 in the name of the petitioners was not cancelled and remained in fact throughout. It was only in the year 1978 that this allotment of Khata No,311 was cancelled vide order dated 31-1-1978. This cancellation took place without notice to the petitioners and on the basis of order, dated 14-5-1974 passed in the mukhbari application submitted by Muhammad Hussain, respondent. The order, dated 14-5-1974 is, thus, crucial order. In the mukhbari application on which this order was passed, one Anees Ahmed son of Mian Muhammad as allottee of land in village Ucha Pind was cited as respondent No,1 while Amin Ahmed and his other family members, the present petitioners were cited as respondents 2 to 10. A perusal of the order would show that Anees Ahmed was served and he defended the proceedings. The learned officer conducting the proceedings appears to be not conscious of the fact that aforesaid Anees Ahmed is a different person and different allottee than respondents 2 to 10, the present petitioners and that these petitioners were not before him. Again, the officer was not conscious that the fact that Anees Ahmed had obtained the allotment in village Ucha Pind, furnishes no basis for cancelling allotment of present petitioners made in their favour in village" Shamke. Thus, for the reason of allotment having been obtained in village Ucha Pind by Anees Ahmed, the allotment in the name of the petitioners in village Shamke could not have been cancelled. The order, dated 14-5-1974 was, thus, passed illegally and without jurisdiction. Muhammad Hussain respondent basis his claim on this order, dated 14-5-1974 but this order being void, ineffective in law and non-existent, his claim having been based on such order falls to the ground. Moreover, Muhammad Hussain being admittedly not a claimant could not have received the allotment on the basis of pending units of his father, Rehmat Ali. Neither any law nor any instruction having the force of law was cited by the learned counsel for respondents to show that a successful mukhber could obtain allotment on the basis claim of someone else. The land in dispute as such could not be allotment in the Khata of Rehmat Ali claiming that he is father of a mukhber.
10. Be that as it may, the mukhbari application of Muhammad Hussain, in the circumstances could not succeed and no right can be claimed either by Muhammad Hussain or Rehmat Ali on the basis of order, dated 14-5-1974 as against the petitioners. It is also apparent that Rehmat Ali could not be allotted land in dispute or any part thereof as the said land stood allotted to petitioners in lieu of their mukhbari rights. It is undisputed that a mukhber takes precedence even over the claimant whose claim may be pending satisfaction in the estate. The allotment at Khata No,311 of village Shamke Made in the name of the petitioners remained intact till 1978 and the same, thus, could not be cancelled vide order, dated 31-1-1978. The said order, dated 31-1-1978 is, therefore, declared illegal, ineffective and having been passed without lawful authority. The plea of laches, in the circumstances of the case, is of no significance. The impugned order was passed at the back of the petitioners and they challenged the same as and when they came to know of it."
9. Paras. 3 to 5 of the Leave Grant Order are to the following effect:-- "3. It appears that on 26-11-1973, Muhammad Hussain son of Rehmat Ali, petitioner No,1 herein, filed mukhbari application against succesor-ininterest of Naushad Ali for cancellation of the proposal for allotment of the land in their favour. This application was accepted on 14-5-1974 by the Additional Deputy Settlement Commissioner exercising powers of the Chief Settlement Commissioner, Sheikhupura and in implementation of the aforesaid order on 31-1-1978 the land in dispute was allotted in favour of the petitioners.
4. Aggrieved by these orders, respondent Nos.3 to 11 filed Writ Petition No,766 of 1983 in the Lahore High Court which was allowed vide impugned order, referred to above and the order, dated 14-5- 1974 as also order, dated 31-1-1978 were declared to have been passed without lawful authority and of no legal effect.
' The learned Single Judge in the impugned order held that after the cancellation of the allotment of land from the name of Anwar Ali, the land measuring 255 Kanals and 1 Marla therefrom was allotted in favour of the informer, predecessor-in-interest of respondents Nos.3 to 11 on 26-6-1965 and it remained intact. It was further held that the order, dated 27-11-1972 passed by the Chief Settlement Commissioner attained finality as the same was not challenged by the petitioner.
' On the contrary, learned counsel for petitioners contended that the order, dated 3-3-1965 cancelling the allotment of the land from the name of Anwar Ali having been set aside on 18-4- 1968, the proposal/allotment of the land made in favour of respondents Nos.3 to 11 on 26-6-1965 stood cancelled as is evident from the order, dated 22-11-1972 passed by the Settlement Commissioner referred to above.
"5. The questions whether by setting aside of the order dated 3-3-1965 of the Chief Settlement Commissioner by the High Court on 18-4-1968 the allotment of the land in dispute made in favour of respondents Nos.3 to 11 on 26-6-1965 stood cancelled and that the order, dated 14-5-1974 cancelling the allotment of the land made in favour of respondents Nos.3 to 11 and that making allotment thereof to the petitioners on the basis of the claim of Rehmat Ali was valid in law, require consideration."
10. Hence, this appeal.
11. It appears that the private-respondents succeeded in their Writ Petition No,766 of 1983 on the twin-ground that the allotment made at Khata No,311 in their 'name was not cancelled but remained intact up to the year 1978, when it was cancelled vide order, dated 31-1-1978 without notice to them and on the basis of order, dated 14-5-1974. Latter order was passed on mukhbariapplication of appellant-Muhammad Hussain submitted against one Anees Ahmed son of Mian Muhammad, as allottee of land in village Ucha Pind, cited as respondent No,1 and respondent-Amin Ahmed and his other family members, cited as respondents Nos.2 to 10. Only Anees Ahmed was served in the mukhbari-proceedings but the others were not. They were not even present before the learned officer conducting the proceedings. It was also held by the learned Judge in Chambers that neither the fact that Anees Ahmed had obtained allotment in Ucha Pind furnishes any legal basis the cancelling the allotment of the private-respondents herein, made in their favour in village Shamke, nor the passing of the order, dated 14-5-1974 to the extent of the private-respondents, can be countenanced. Additionally, Muhammad Hussain was, admittedly, not a claimant and, therefore, he could not ask for any allotment on the basis of the pendency of units of his father Rehmat Ali.
12. Mr. Maulvi Anwar-ul-Haq, learned Advocate Supreme Court appearing in support of this appeal, has tried to support the cancellation of the lands allotted to the private-respondents at Khata No,311 of RL-II of village Shamke in terms of order, dated 14-5-1974 passed in the mukhbari application of appellant-Muhammad Hussain. According to him, appellant-Muhammad Hussain being an their of deceased-Rehmat Ali, the cancellation of the allotment at Khata No,311 and its allotment against the pending units of deceased-Rehmat Ali is in order. Contrarily, Mr. A.R. Shaukat, learned Senior Advocate Supreme Court representing the private-respondents, has vehemently supported the impugned judgment, dated 21-9-1993 with the submission that the cancellation of lands of his clients' Khata No,311 vide order, dated 31-1-978, purportedly on the basis of order, dated 14-5-1974, was sans any legality and having been passed without hearing them in both, mukhbari- proceedings and cancellation of allotment-proceedings, the same was correctly removed from the field by the learned Judge in Chambers.
13. We have considered the respective pleas raised by the learned counsel for the parties and have also been taken through the available material, by them. The learned counsel for the appellants could not meet the grounds taken in the impugned judgment by the learned Judge in Chambers while issuing the writ prayed for by the private-respondents herein in their Writ Petition No,766 of 1483. We find that the observations made by the learned Judge in Chambers are clearly divisible in two parts. Firstly, it was observed that the private-respondents were simply impleaded as respondents in the mukhbari application of appellant-Muhammad Hussain but no effort whatsoever was made to serve any process on them. Further, the said mukhbari application related to the lands of one Anees Ahmed in village Ucha Pine, which could not furnish any basis in law for the cancellation of allotment of the private-respondents in village Shamke. Secondly, it was held that appellant-Muhammad Hussain had no locus whatsoever to ask for the cancellation of their allotment at Khata No,311 as also the allotment in favour of his father-Rehmat Ali in that there is 'neither any law nor instructions having the force of law to support the plea that a successful A inukhbar could obtain the allotment on the basis of claim of someone else. The case of the appellants was thoroughly examined in the judgment in appeal and the afore-referred facts thereof were considered by the learned Judge in Chambers, threadbare. It is trite law that in terms of sections 10 to 11 of the Displaced Persons (Land Settlement) Act (No,XLVII of) 1958, a Mukhbar has to show that his claim/PIUs are pending satisfaction/allotment.
14. Be that as it may, the issuance of writ by the High Court has proceeded on totally justified reasons in that regard. It is not the case of the appellants that private-respondents herein were served with any process either in the mukhbariproceedings or in the cancellation of Khata No,311 of village Shamke. The appellants have not even controverted the fact that appellant-Muhammad Hussain had no claim/Ms pending satisfaction/allotment to clothe him with the requisite locus to ask for allotment of any land as a Mukhbar. We are not inclined to the view that being an heir of a claimant he (appellant-Muhammad Hussain) could obtain allotment in the name of his predecessor-in-title, who was admittedly not a Mukhbar.
15. No other point was urged on behalf of the appellants.
16. For all that has gone before, the instant appeal is sans merit and is liable to be dismissed with no order as to costs. Order accordingly.