JUDGMENT SYED JAMSHED ALI-, J.- Order dated 14.6.1999 passed by the learned Member, Board of Revenue is the subject-matter of this Constitutional petition which arises out of the following Circumstances.
2. Land of Khata No. 1165 the total area of which is 53 kanals and 18 marlas was jointly owned by the muslims and the non-muslims evacuees at the time of the partition of the Sub-Continent. The non-evacuee portion of the land" of the said khata measuring 17 kanals and 19 marlas was allotted to the predecessor-in-interest of respondents Nos. 2 to 12 and one Rukan Din. The petitioners claim an allotment of land measuring 9 kanals and 16 marlas comprising khasra No. 671 (3 kanals) and khasra No. 678 (6 kanals 7 and 16 marlas). The allotments of the non-evacuee portion of the land were assailed by Muhammad Hussain, a Muslim owner, the predecessor-in-interest of respondent No. 13. The' appeal was, however, dismissed by the learned. Settlement Commissioner (L) vide his order dated 16.5.1968. A' revision petition filed by said Muhammad Hussain was dismissed by the learned Settlement and Rehabilitation Commissioner vide order dated 23.2.1970. Thereafter he sought partition of the khata through an application before the learned Asstt. Collector Grade-I who allowed the said application vide his order dated 10.6.1970 and mutation No. 5990 was attested on 15.6.1971. This order, according to the learned counsel lor the petitioner, was ex-parte qua the petitioners. He, along with other allottees, filed appeals before the learned Collector against the said order dated .10.6.1970 which were dismissed vide order dated 21.7.1979. He, however, directed that the aforesaid mutation No. 5990 attested on 15,6.1971 should be reviewed.
And, on 26.9.1979 mutation No. 12819 was attested whereby khasra Nos. 671 and 678 were allocated to the petitioners.
3. On 21.3.1994, respondent No. 13, made an application to the learned Collector seeking implementation of the order of the Collector dated 21.7.19 79 (wrongly described in the application as order dated 11.7.1979). This application was allowed by the learned Collector vide his order dated: 1.1.1995. Respondents Nos. 2 to 12 took a revision petition before the learned Commissioner, Gujranwala Division which was dismissed vide order dated 20.2.1995. The said order was challenged by respondents Nos. 2 to 12 in -a revision petition before the Board of Revenue.
Muhammad Malik, respondent No. 13, alone was party to this revision petition. A compromise was submitted before the learned Member, Board of Revenue by the parties to the revision petition before him on the basis of which the said revision petition was disposed of by the learned Member, Board of Revenue vide his order dated 21.1.1996. The petitioner sought review of this order (Review Petition No. 54 of 1996) which was however, dismissed on 14.6.1999. This order" is the subject-matter of this Constitutional petition.
4. The principal grievance of the learned counsel is the the petitioners were not party to the compromise or to the revision petition filed before the Board of Revenue and, therefore, the order dated 21.1.1996 of the learned Member, Board of Revenue had no effect on their entitlement in the joint khata. His further grievance is that while implementing the order passed by the learned Member, Board of Revenue mutation No. 34001 was sanctioned on 18.2.. 1996 and the disputed land which stood allocated to the petitioners through mutation No. 12819 has been allocated to respondent -No. 13. It was further contended that the order dated 1:1.1995 of the learned District Collector was never implemented.
5. On the other had, the learned counsel tor respondents Nos. 2 to 13 contend that against the order dated 18,2,1996 sanctioning mutation No. 34001 the appeal filed by the petitioners before the learned Collector is already pending. The petitioners having availed of an alternate remedy the present writ petition is not competent. This is not denied by the learned counsel tor the petitioners.
6. It was further contended that the total evacuee area available in the khata was 17 kanals and 19 marlas and an area measuring 16 kanals was confirmed in favour of Amin-ud-Din, the predecessor-in-interest of respondents Nos. 2 to 12 on 11.7.1950 while an area measuring 12 kanals was confirmed in favour of one Rukan-ud-Din on 10.3.1957 which was in excess of the evacuee area available in the said khata and an area measuring 9 kanals, 16 marlas of the said khata was allegedly confirmed in favour of the petitioners on 20.1.1958. This allotment was a nullity according to the learned counsel for the respondents as no evacuee area was available in the said khata.
7. I have considered the submissions made by the learned counsel for the parties. The first grievance of the petitioners is that while implementing the order passed by the learned Member, Board of Revenue mutation No. 34001 has wrongly been attested inasmuch that the area which stood allocated to the petitioners has been given to respondent No. 13. Suffice is to say that they have already availed the remedy of appeal against the order passed by the Assistant Commissioner on mutation No. 34001 and the issue being sub-judice before a competent forum, no interference is called for in exercise of extraordinary jurisdiction of this Court. From the perusal of the record and the submissions made by the learned counsel for the parties, it is clear that against the evacuee area measuring 17 kanals and 19 marlas in khata No. 1165, allotments to the extent of 37 kanals, 16 marlas have been made. To succeed, the petitioners have to establish that they could maintain their allotment in its entirety or partially against the evacuee portion of the land available in the khata in dispute. The ^Collector, before whom, the appeal is pending is the proper authority to determine this question.
8. It may, however, be observed that the appeal of the petitioners pending before the learned Collector shall be decided on its on merits in accordance with law uninfluenced by the order dated 21.1.1996 passed in .ROR No. 564 of 1995 tor the reason that the petitioners were not party to the revision petition before the learned Member, Board of Revenue. The writ petition is, accordingly, dismissed with the above observations. There shall, however, be no order as to costs.