' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, is directed against the judgment passed by the High Court on 15-6-1998, whereby the writ petition filed by the appellants, herein, was dismissed.
2. The necessary facts, giving rise to the present appeal, briefly stated are that the appellants, herein, claim themselves to be refugees of 1947. According to the appellants land measuring 63 Kanals, situate in village Dhandili, District Kotli, was allotted to one Noor Muhammad, 88 Kanals to Mohabbat Ali, the predecessor-in-interest of respondents 1 to 11 and 40 Kanals to Muhammad Ishaque. The land allotted to Mohabbat Ali, the predecessor-in-interest of respondents 1 to 11 herein, according to the appellants, was in possession of their father. Mohabbat Ali died and thereafter his widow. Mst. Rasool Bi, abandoned the land in favour of father of appellants. Thus, this land stood allotted to father of appellants on 13-9-1995. The respondents challenged the allotment of father of appellants before the D.R.C. By filing revision petition but the same was dismissed.
Feeling aggrieved by the order of D.R.C. The respondents filed a revision petition before the Rehabilitation Commissioner who vide his order, dated 21-10-1969, accepted the revision petition filed by the respondents and set aside the order of D.R.C. The father of appellants filed a further revision petition against the order of Rehabilitation Commissioner, dated 21-10-1969, and the learned Custodian vide his order, dated 28-10-1970, held that Mst. Rasool Bi, the widow of deceased Mohabbat Ali, was only competent to abandon the land to the extent of her own share which was to the tune of 10 Kanals. It was further held that she was not entitled to surrender the rest of the land. However, during the pendency of revision petition before the Custodian, the parties agreed that the father of appellants shall retain the house constructed over 9 Marlas of land as well as 10 Kanals land being the share of Mst. Rasool Bi under Survey No.1017/108. Thus, the .Learned Custodian restored the allotment of father of appellants to the extent of 10 Kanals and 9 Marlas, whereupon the house was constructed. A complaint was also filed before the Multiple Judge who cancelled the allotment from the name of Noor Muhammad and Muhammad Ishaque but at the same time maintained the allotment of Mohabbat Ali. The proprietary rights were granted to respondents as they were the legal heirs of deceased Mohabbat Ali. The appellant challenged the proprietary rights transfer order issued in favour of respondents by filing a writ petition in the High Court which was dismissed vide the order impugned, dated 15-6-1998. Hence this appeal.
3. In support of appeal it was vehemently contended by Muhammad Riaz Alam, the learned counsel for the appellants, that a learned Judge in the High Court committed an error by skipping over an important aspect of the case that before the Custodian Mst. Rasool Bi, the widow of Mohabbat Ali, allottee, surrendered her share to the extent of 10 Kanals, 9 Marlas of land, wherein the house was built which remained all along in possession of appellants. The learned counsel also emphasized that the Multiple Judge maintained the allotment in favour of father of appellants an this finding was never assailed.
4. On the other hand Mr. Abdul Majid Mallick, the learned counsel for respondents 1 to 12, controverting the arguments raised by the learned counsel for the appellants, submitted that it clearly transpires from the order of Multiple Judge, dated 13-4-1976, that the father of appellants shall be entitled to allotment of 48 Kanals, 11 Marlas, out of the land that has been cancelled from the name of Muhammad Ishaque and Noor Muhammad. The learned counsel submitted that in presence of this finding by the Multiple Judge, the appellants, if at all were entitled to any further allotment, can only be made out of the land which was cancelled from the name of Muhammad Ishaque and Noor Muhammad and not the respondents. In this view of the matter, according to the learned counsel for respondents, the judgment of the High Court suffered from no material illegality of infirmity.
5. Ch. Shah Wali, the learned counsel appearing on behalf of the Custodian, submitted that against the proprietary rights transfer order, issued in favour of respondents, the appellants had an alternate remedy of filing a review petition before the Custodian but without availing the said remedy they directly filed a writ petition in the High Court which was liable to be dismissed even on that score.
6. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it transpires that when Mohabbat Ali died his widow, Mst. Rasool Bi, surrendered the land measuring 51 Kanlas, 9 Marlas in favour of father of appellants. So, this land was allotted to him. The sons and the daughters of Mohabbat Ali challenged this allotment and it was resolved by the learned Custodian that Mst. Rasool Bi was only competent to surrender the land which fell within her share. Thus, he kept the allotment of 10 Kanals intact in the name of father of appellants.
In our view the learned Custodian was right to observe that Mst. Rasool Bi was only entitled to surrender the land to extent of her own share. She was not entitled to surrender the land of remaining heirs of deceased Mohabbat Ali.
7. Now on the basis of the judgment of the learned Multiple Judge the appellants are claiming further land for allotment but the Multiple Judge dealing with the matter observed as under:-- "Out of the remaining land i,e, 91 Kanals, 15 Marlas, 10 Kanals, 9 Marlas have been already allotted to Said Muhammad, complainant (predecessor-in-interest of appellants). A total of 51 Kanals, 9 Marlas already stands allotted in his name. He is entitled to a further allotment of 48 Kanals, 11 Marlas. The Assistant Rehabilitation Commissioner will allot him this 48 Kanals, 11 Marlas of the land that has been cancelled from the name of Muhammad Ishaque and Noor Muhammad."
' It is thus, clear from the above extract of the judgment of the Multiple Judge that the operative part of the judgment is that the A.R.C. Will allot him (Said Muhammad, the predecessor-in-interest of appellants) this 48 Kanals, 11 Marlas land, out of the land that has been cancelled from the name of Muhammad Ishaque and Noor Muhammad. It is the case of the appellants themselves that the judgment passed by the Multiple Judge has attained finality as none of the parties challenged the same before any competent forum. In this view of the matter, we while agreeing with the contention of the learned counsel for the appellants, the proper course for the appellants would have been to seek a further allotment in their favour provided they were entitled to the same from the land cancelled by the Multiple Judge from the name of Muhammad Ishaque and Noor Muhammad. The appellants may approach the Rehabilitation Authorities for the allotment of land within their prescribed scale either from the land cancelled from the name of Muhammad Ishaque and Noor Muhamamd or the Rehabilitation Authorities may allot them some other land which is less than their prescribed scale. The impugned order, passed by the High Court, in our view, suffers from no illegality or any infirmity.
8. The argument advanced by Ch. Shah Wali, the learned counsel for the Custodian, that the appellants against the proprietary rights transfer order can avail the remedy of review petition before the Custodian but without availing, the aforestated adequate remedy they directly filed a writ petition in the High Court which was liable to be dismissed on this sole ground, is not without any substance. Although this point was not argued before the High Court nor the High Court dismissed the writ petition on the said ground but the point being purely of a law, we allowed the learned counsel Ch. Shah Wali to argue the said point before this Court. The learned counsel in support of his contention cited a reported case of this Court titled Faqir Muhammad and others v.
Custodian, Evacuee Property and others (1996 SCR 349), wherein it has been observed at page 351 as follows:-- "However, the High Court has rightly expressed the view that an adequate remedy by way of review petition was available to the appellants subsection (6) of section 43 of the Administration of Evacuee Property Act, 1957 confers wide power of review on the Custodian and it is the proper remedy in which all questions of fact can be effectively resolved. In presence of this adequate remedy a writ petition was not maintainable. Therefore, we leave the question open whether cancellation of allotment of Muhammad Alam was valid or not and uphold the dismissal of the writ petition on the sole ground that the appellants had not availed of the adequate remedy available to them. All other findings given by the High Court are vacated . "
9. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed without any order as to costs.