' The brief facts out of which the present writ petition arises are that land in question measuring 46 Kanals, 4 Marlas was temporarily allotted to Fazal Hussain by Additional Revenue Officer, Sialkot on 30-11-1956. Possession was taken by Fazal Hussain on 14-(sic)-1957. The name of Fazal Hussain was mentioned in the Revenue Record in the year 1967 as is evident from J amabandis for the years, 1967-1968, 1970-1971 which are annexed as Annexures C and D with the writ petition. Private respondents are tenants of Fazal Hussain and private respondents had paid rent/share of the crops to Fazal Hussain as is evident from receipts Annexures E to E/6 attached with the writ petition.
The Assistant Commissioner directed the petitioners to deposit the outstanding of the Government on 31-8-1981 as' is evident from Annexure H attached with the writ petition. Fazal Hussain original temporary allottee died on 26-1-1969. Respondents Nos. 1 to 3 filed application before the competent authority that the land in question was available at the time for allotment. The competent authority allotted the land in question in favour of respondents Nos.1 to 3 on 10-5-1973.
Mutation No, 171 was also sanctioned in favour of private respondents on 16-4-1977 by the Revenue Officer. The legal heirs of Fazal Hussain came to know that land in question was allotted in the name of the respondents. Respondents filed an application for review of the aforesaid application before respondent No,4. The respondent No,4 dismissed the same vide impugned order dated 15- 10-1983. The petitioners being aggrieved filed this writ petition.
2. The learned counsel of the petitioners submits that temporary allotment made by the competent authority in the name of late Fazal Hussain was not cancelled by the competent authority till date. He further submits that respondents Nos.1 and 3 were tenants of Fazal Hussain.
They had paid share in the produce/rent to the petitioners till 1981. The petitioners filed appeal before respondent No,4 for review of the mutation who dismissed the same on the ground of limitation without applying his mind. He further submits that symbolic possession of the land in question is still with the petitioners as the respondents Nos. 1 to 3 were tenants of their predecessor-in-interest Fazal Hussain. The petitioners are entitled to purchase the land in question being oustee of Azad Jammu and Kashmir in view of section 3(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975). He further submits that it is the duty and obligations of the competent authority to allot the land in question to respondents Nos.1 and 3 after 'notice to the original allottee or legal heirs of the original allottee.
3. The learned counsel of the respondents submits that land in question was allotted in favour of respondents by the competent authority on 10-5-1973 and the land is not available, therefore, provisions section 3(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 are not attracted in this case. He further submits that petitioners came to know in the year 1981 that Assistant Collector directed them to deposit price but the petitioners failed to find out the status of the land in question till 1981. He further submits that Robkar was issued by the competent authority in favour of respondents on the basis of the allotment order as is evident from Annexure R/1 attached with the written statement. The Mutation No,171 was sanctioned on 6-4-1977 in favour of the private respondents on the basis of the aforesaid allotment order dated 10-5-1973. He further submits that petitioners failed to attach any document except Annexure ' A' which pertains for the year, 1970 to show the status of the private respondents are tenants of late Fazal Hussain. He further submits that writ petition is liable to be dismissed on the ground of laches as the petitioner filed writ petition in the year 1984. He further submits that petitioners did not challenge the vires of the allotment order in favour of the respondents till date. He further submits that land in question was temporarily allotted to late Fazal Hussain which is not inheritable. He further submits that respondents are also refugee of Azad Jammu and Kashmir and the land was allotted permanently in their favour, therefore, their right is superior as compared to the right of the original allottee Fazal Hussain.
' Mr. Arshad Warraich, NaibTehsildar produced the original record which reveals that the land in question was allotted to the respondents on 10-5-1973. Photo copy of the same is placed on record.
5. I have given my anxious mnsideration to the contentions of the learned counsel of the parties and perused the record iyself. The relevant facts are put in juxta-position to resolve the controversy between the parties:--- ' Temporary allotment was made in favour of late Fazal Hussain on 30-11-1956 qua land in question Fazal Hussain died on 26-1-1969. Land in question was allotted in favour of respondents on 10-5- 1973. Mutation No, 171 was sanctioned in favour of respondents Nos.1 to 3 on 6-4-1977. Petitioners filed review application for review of the Mutation No, 171 before the respondent No, 4 in the year 1981. The respondent No,4 dismissed the review application on 15-10-1983. The petitioners filed writ petition on 11-1-1984.
'It is pertinent to mention here that the petitioners did not challenge the original allotment letter in favour of the respondents through this writ petition. The writ petition is liable to be dismissed on this short ground alone as the mutation is based on this order. When the basic foundation is in the field then superstructure should not befall on the ground. It is also admitted fact that Fazal Hussain predecessor-in-interest of the petitioners was temporary allottee. The temporary allotment is not inheritable as the law laid down by the superior Courts in the following judgments: ' 1988 SCM R 1228 (Feroze Bibi v. Settlement Commissioner etc.); 1986 CLC 2095 (Allah Rakhi v.
Sughra Bibi and others); 1986 CLC 2354 (Raisham Bibi v. Umar Din).
' It is also settled principle of law that permanent allottee has superior right as compared to the temporary allottee. In arriving to this conclusion I am fortified by judgment of Hon'ble Supreme Court in C.P. No,1513-L of 1983, dated 28-5-1995. It is also admitted fact that the petitioners did not attach any document alongwith the writ petition to show that respondents had paid share of the produce to the petitioners after the death of original allottee. In this view of the matter the petitioners are not vigilant to pursue their cause. It is settled proposition of law that he who seeks equity must come with clean hands but the petitioner did not come with clean hands and did not even challenge the original order of allotment in favour of respondents dated 10-5-1973. In this view of the matter I am not inclined to exercise my discretion in favour of the petitioners as per principle laid down by the Hon'ble Supreme Court in Nawabzada Raunaq Ali Khan's case PLD 1973 SC 236. It is also admitted fact that respondents are also refugee of Azad Jammu and Kashmir and the land in question was allotted permanently in their names on 10-5-1973, therefore, land was not available in the year 1975 when the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) came into force. In this view of the matter petitioners are not entitled to get benefit of section 3(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975). The respondent No,4 has dismissed review application with reasons and this Court has no jurisdiction to substitute its own finding in place of the findings of the Tribunals below as per principle laid down by the Division Bench of this Court in Massadaq's case PLD 1973 Lahore 600. The impugned order was passed by respondent No,4 on 15-10-1983 and the petitioners filed this writ petition on 11-1-1984. The same is also liable to be dismissed on the well-known principle of laches as per principle laid down by the Hon'ble Supreme Court in PLD 1997 SC 304 (Khiali Khan v. Haji Nazir and 4 others).
' In view of what has been discussed above this writ petition has no merit and the same is dismissed.