The petitioner a claimant had obtained a two years lease of 120 acres of agricultural land in Deh Pai. Shahadpur, District Sanghar on 3C-7-1948 from the Hindu owners and this land included Survey No. 409/2 admeasuring 4 acres only. On 11-6-1950 the petitioner as the head of five families was allotted 61 25 acres out of the said land, including the above-said survey number, and this land was subsequently ordered to be allotted to him on 26-11-1950 after approval of the Rehabilitation Commissioner under the Temporary Allotment Scheme. The land including the said survey number continued to be in his possession and was permanently allotted to him on 3-8-1962 under M. L. R. 89 and for this a Khatoni was also given to him. A counter claim bad been filed by one Hafiz Mazhar Hussain for Survey No. 409/2, but that had been considered and rejected on 24-5-62 by the Assistant Settlement Commissioner; Sangbar. A review application filed against that order had also been dismissed. In these proceedings Hafis Mazhar Hussain was represented by respondent No. 3 Faqir Mohammad as his Special Attorney. However, the proceedings were not taken any further.
2. After issuance of Khatoni on 3-8-62 as stated, respondent No. 3 SW an appeal before the 2nd respondent, the Deputy Rehabilitation Commissioner Sanghar, for the first time claiming that he had purchased Survey No. 409/2 from Ruknuddin, respondent No. 4. He claimed that this survey number had been allotted to Ruknuddin on 24-12-1958. This appeal was decided in favour of respondent No. 3 on 16-1-1963 and the petitioner challenged the decision by filing a revision application before the lot respondent, Settlement and Rehabilitation Commissioner, Hyderabad but the same ryas also dismissed on 15- 12-1965.
3. The petitioner has now challenged that order on various grounds; the first being that the order of the Assistant Settlement Commissioner deciding the entitlement of the Survey No. 409/2 in favour of the petitioner on 24.5-1962 had become final under section 22 of the Displaced Persons (Land Settlement) Act of 1958 and could not be disturbed subsequently by the first two respondents. In any case the appeal filed on 6-9-62 was beyond time and therefore not competent; secondly that the third respondent while representing the case of Hafiz Masher Hussain as attorney had never disclosed that the Survey No. 409/2 bad at any time been allotted to the 4th respondent or that it was ever purchased by him and lastly that there had been no valid allotment of Survey No. 409/2 in favour of the 4th respondent Ruknuddin, with the result that no transaction of sale between him and 3rd respondent could take place so as to confer any valid title on the 3rd respondent at all.
4. It appears on record that the 3rd respondent died on 14-1-1967, during the pendency of this petition, and his legal heirs respondents 3-A to 3-1 were brought on record as parties who represent his interest.
5. On 20-8-1971 the petitioner moved an application 'under Order XXII, rule 4, Cr. P. C. As he learnt that the 4th respondent, Ruknuddin also had died, although the date of his death had not been ascertained. He therefore prayed that his widow, his only legal heir may be joined as party in the proceedings. A further prayer was subsequently made for substituted service on the 'said widow of Ruknuddin. However, a counter affidavit was filed by Mohammad Khalid s/o deceased 3rd respondent Faair Mohammed, on behalf of the legal representatives of the 4th respondent wherein it was stated that Ruknuddin had died on 2- 10-1968 leaving behind a widow and two daughters as his heirs. It was stated that the petitioner and respondent No. 4 both lived in Tando Adam which was a small town and as the application was made after more than three years of the death of the 4th respondent, it was submitted that the petition had already abated, and the application under Order XXII, rule 4 of the C. P. C. Was also liahle to be dismissed. Obviously the facts stated in this affidavit were not challenged by the petitioner as no reply had been filed. The application for joining the L. Ra, of respondent No. 4 was thereafter dismissed on 26-1-1976 after hearing the parties, and the learned Single Judge bad passed the said ordeip in these terms :- "Mr. Maroof A.I Khan, Advocate for the petitioner.
This is an application for bringing the L. Rs. Of respondent No. 4, Ruknuddin, The application was filed in the year, 1971. Counter No. 1 stating that respondent No. 4 has died in the year, 1968 and a Certificate of death has also been filed. This fact is not contested by Mr. Maroof A.I Khan. The limitation for bringing the L. Re. Is 90 days under Article 177 of Limitation Act.
No rejoinder has been filed. Application is dismissed."
5. In view of the dismissal of the above application, learned counsel for respondent No. 3 Mr. Shaikh Hyder stated at the very outset that the question whether the main Petition itself abated on that account may first be considered. In his submission the claim of Fakir Mohammad 3rd respondent and thereafter of his L. Re. Was based on the purchase of the Survey No. 4!'9/2 from Ruknuddin the 4th respondent. Of necessity therefore the petitioner had first to get the entitlement of the 4th respondent set aside. Even on the facts stated by the petitioner himself the 3rd respondent had only represented the case of one Hafiz Mazhar Hussain filed against the petitioner. His own claim before any authority was not based on any allotment or transfer made in his own favour by the Department but it was on the basis that he had purchased the said survey number from Ruknuddin the 4th respondent who had an allotment in his favour and which was dated as far back a4 24-12- 1958. The circumstances that this fact was not disclosed in proceedings taken by Hafiz Mazhar Hussain would not in any way come in the way of the 3rd respondent. In the order passed by the Deputy Rehabilitation Commissioner Sanghar on 16.1-1963 which was ultimately upheld in the impugned order he stated :- "From the original record . . . . . . . . . Appellant during the could . . . ' . . . Before me, I find that . . . . . . w allotted to Ruicnuddin son of Amiro Khan Shaikh by the Rehabilitation Commissioner Shahdadpur on 14-12-1959. According to the report of the Mukhtiar kar Shahdadpur dated 13-10-1Y62 (on the original Kbatoni however, I find that no year has boon mentioned) Ruknuddin after completing the formalities as provided by law, applied to the Deputy Commissioner Sanghan for permission of the sale of this survey number under the Sind Rural Credit and Land Transfer Act. The said post facto permission was granted by the Deputy Commissioner Sangbar on 2-1-1961. 1n the meantime the said survey number was sold by Ruknuddin to Pagir Mohammad son of Malang Khan by a registered deed executed on 27-12-1960", and further, that, "Faqir Mohammad has been in possession of the survey number since then and has also paid all the land revenue dues outstanding against it by a Certificate issued by the Mukhtiar kar, Shahdadpur dated 5-9-1962. In view of all the above facts the ownership of the survey number in question belongs to Faqir Mohammad and it cannot be allotted to any body else."
6. On the basis of the above facts the.Eimple contention raised was that in view of purchase by a registered sale? Deed from the 4th respondent, the 3rd respondent had become the legal owner of the said survey number and unless, the entitlement of the 4th Respondent was held to be invalid no relief against the 3rd respondent could be given to the petitioner, in the present petition.
Indeed the contention of the learned counsel finds support from the very prayer clause In this petition which is to seek a declaration that two orders dated 16-1-1963 and 15-11-1965 which are based on the title of Ruknuddin the 4th respondent, are of no legal effect and also that the allotment of Survey No. 409/2 in favour of that respondent was illegal and void. Mr. Maroof A.I Khan learned counsel for the respondent therefore very candidly agreed that the 4th respondent Ruknuddin was a necessary party whose presence was essential for the decision of this petition. In the case of Abdul Ghanl v. Settlement Commissioner and others (1) also it was observed at p. 1 7 0 t-- "In absence of a person to be adversely affected by granting an order in a proceeding under Article 98 of the Constitution of 1962, no effective order of quashment could be made, for that would not bind the person who had been benefited by the impugned order, and it was a well settled principle that in such circumstances a Court would not make an ineffective order, or an order which could be flouted in a proceeding under Article 98 of the Constitution. In this view the persons to be adversely affected are necessary parties."
7. Mr. Maroof A.I Khan, however, raised the contention that by the amendment of Order XXII of the C.
P. C., the mere fact that the 4th respondent had died and that his L. Re. Had not been brought on record, would not in the circumstances of this case come in the way of the petitioner and a decision adverse to the defendants could still be operative. He relied on a division bench decision of this Court in the case of Rashid Rayon Mills v. Amin Yusuf Nfzam!(2), wherein it had been observed in pare. 6 that abatement being a mattetr of procedure the new law (as laid by the Law Reforms Ordinance, 1972) would apply to pending matters.
The effect of this, in the submission of the learned counsel was that this being $ pending matter, the provisions of the Law Reforms Ordinance, 1972, were applicable to the case of the 4th respondent, against whom the matter could be proceeded with and orders passed in spite of his earlier death.
"A plea raised on behalf of the petitioner that because of the amendmenof O. XXII of the C. P. C. By the Law Reforms Ordinance, 1972 the[-
(1) 1971 SCMR 98(2) PLD 1975 Kar. 96 (3)1976SCMR12 Mr. Maroof A.I Khan. The limitation for bringing the L. Re. Is 90 days under Article 177 of Limitation Act.
No rejoinder has been filed. Application is dismissed."
5. In view of the dismissal of the above application, learned counsel for respondent No. 3 Mr. Shaikh Hyder stated at the very outset that the question whether the main Petition itself abated on that account may first be considered. In his submission the claim of Fakir Mohammad 3rd respondent and thereafter of his L. Re. Was based on the purchase of the Survey No. 4!'9/2 from Ruknuddin the 4th respondent. Of necessity therefore the petitioner had first to get the entitlement of the 4th respondent set aside. Even on the facts stated by the petitioner himself the 3rd respondent had only represented the case of one Hafiz Mazhar Hussain filed against the petitioner. His own claim before any authority was not based on any allotment or transfer made in his own favour by the Department but it was on the basis that he had purchased the said survey number from Ruknuddin the 4th respondent who had an allotment in his favour and which was dated as far back a4 24-12- 1958. The circumstances that this fact was not disclosed in proceedings taken by Hafiz Mazhar Hussain would not in any way come in the way of the 3rd respondent. In the order passed by the Deputy Rehabilitation Commissioner Sanghar on 16.1-1963 which was ultimately upheld in the impugned order he stated :- "From the original record . . . . . . . . . Appellant during the could . . . ' . . . Before me, I find that . . . . . . w allotted to Ruicnuddin son of Amiro Khan Shaikh by the Rehabilitation Commissioner Shahdadpur on 14-12-1959. According to the report of the Mukhtiar kar Shahdadpur dated 13-10-1Y62 (on the original Kbatoni however, I find that no year has boon mentioned) Ruknuddin after completing the formalities as provided by law, applied to the Deputy Commissioner Sanghan for permission of the sale of this survey number under the Sind Rural Credit and Land Transfer Act. The said post facto permission was granted by the Deputy Commissioner Sangbar on 2-1-1961. 1n the meantime the said survey number was sold by Ruknuddin to Pagir Mohammad son of Malang Khan by a registered deed executed on 27-12-1960", and further, that, "Faqir Mohammad has been in possession of the survey number since then and has also paid all the land revenue dues outstanding against it by a Certificate issued by the Mukhtiar kar, Shahdadpur dated 5-9-1962. In view of all the above facts the ownership of the survey number in question belongs to Faqir Mohammad and it cannot be allotted to any body else."
6. On the basis of the above facts the.Eimple contention raised was that in view of purchase by a registered sale? Deed from the 4th respondent, the 3rd respondent had become the legal owner of the said survey number and unless, the entitlement of the 4th Respondent was held to be invalid no relief against the 3rd respondent could be given to the petitioner, in the present petition.
Indeed the contention of the learned counsel finds support from the very prayer clause In this petition which is to seek a declaration that two orders dated 16-1-1963 and 15-11-1965 which are based on the title of Ruknuddin the 4th respondent, are of no legal effect and also that the allotment of Survey No. 409/2 in favour of that respondent was illegal and void. Mr. Maroof A.I Khan learned counsel for the respondent therefore very candidly agreed that the 4th respondent Ruknuddin was a necessary party whose presence was essential for the decision of this petition. In the case of Abdul Ghanl v. Settlement Commissioner and others (1) also it was observed at p. 1 7 0 t-- "In absence of a person to be adversely affected by granting an order in a proceeding under Article 98 of the Constitution of 1962, no effective order of quashment could be made, for that would not bind the person who had been benefited by the impugned order, and it was a well settled principle that in such circumstances a Court would not make an ineffective order, or an order which could be flouted in a proceeding under Article 98 of the Constitution. In this view the persons to be adversely affected are necessary parties."
7. Mr. Maroof A.I Khan, however, raised the contention that by the amendment of Order XXII of the C.
P. C., the mere fact that the 4th respondent had died and that his L. Re. Had not been brought on record, would not in the circumstances of this case come in the way of the petitioner and a decision adverse to the defendants could still be operative. He relied on a division bench decision of this Court in the case of Rashid Rayon Mills v. Amin Yusuf Nfzam!(2), wherein it had been observed in pare. 6 that abatement being a mattetr of procedure the new law (as laid by the Law Reforms Ordinance, 1972) would apply to pending matters.
The effect of this, in the submission of the learned counsel was that this being $ pending matter, the provisions of the Law Reforms Ordinance, 1972, were applicable to the case of the 4th respondent, against whom the matter could be proceeded with and orders passed in spite of his earlier death.
"A plea raised on behalf of the petitioner that because of the amendmenof O. XXII of the C. P. C. By the Law Reforms Ordinance, 1972 the[-
(1) 1971 SCMR 98(2) PLD 1975 Kar. 96 (3)1976SCMR12 abatement of two appeals is saved, was also repelled on the short around that the Law Reforms Ordinance did not operate retrospectively so as to undo the effect of abatement happening prior to the coming in force by the Ordinance as in the two instant cases."
8. The above observation of their Lordships of the Supreme Court fully supports the contention raised by the learned counqel for respondent No. 3, as in the present case also the petition had already abated against the respondent No. 4, who again admittedly was a necessary party. The claim of respondent No. 3 wholly depended on the entitlement of the respondent No. 4. The position emanated from the above circumstances have the effect that the main petition itself abated and the preliminary objection has got to b upheld.
The over all effect of the above position is that the petition cannot proceed and as such it is dismissed but with no orders as to costs.