1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal by leave of the Court has been directed against the order of the High Court, dated 3-4-1998 whereby the writ petition tiled by Faza1 Ahrnad, predecessor-in-interest of the appellants, was dismissed.
2. ' Brief facts of the case are that land measuring 26 Kanals and 19 Marlas comprising Survey No,2000, situate in village Dhanna, Tehsil and District Kotli, was allotted to respondent No,2 by Assistant Rehabilitation Commissioner and the application for allotment made by Fazal Allinad, the father of the present appellants, was dismissed holding that he was not entitled to any allotment.
3. On appeal to the Deputy Rehabilitation Commissioner, the appeal filed by Fazal Ahmad was partly accepted and the land measuring 10 kanals out of aforesaid piece of land was allotted to him while remaining allotment remained intact in favour of respondent No,2. Both the parties filed revision petitions to the Rehabilitation Commissioner against the order of the Deputy Rehabilitation.
4. Commissioner. The revision petition filed by Fazal Ahmad, the father of the appellants, was accepted while that of respondent No,2 was dismissed and the whole piece of land was allotted to Fazal Ahmad. A revision petition was filed by respondent No,2 before the Custodian who accepted the same and set-aside the order of the Rehabilitation Commissioner and restorted that of the Deputy Rehabilitation Commissioner Kotli whereby land measuring 10 kanals was allotted to Fazal Ahmad while remaining land remained allotted to respondent No,2. Fazal Ahmad, deceased, whose representatives are the appellants herein, filed a writ petition in the High Court which has been dismissed holding that order of the Custodian does not suffer from any legal infirmity.
5. The learned counsel for the appellant has contended that he has specifically raised the point before the High Court that respondent No,2 was included in the family of his father and produced documentary proof in support of his contention but the High Court did not give any finding as to whether the aforesaid contention raised by the appellant was correct or not. He has further contended that it is well-settled principle of law that allotment of the evacuee property can only be made in favour of the head of the family; members of same family cannot hold more than one allotments. But the High Court has expressed the view that it is for the Rehabilitation Authorities to make an allotment in view of the circumstances of a case and the appellant had no locus standi to assail the allotment made in favour of respondent No,2. The learned counsel for the appellant has further submitted that the appellant has also raised the aforesaid point before the Rehabilitation Authorities and the Custodian but they failed to give finding on the point. The learned counsel has strenuously argued that Constitutional jurisdiction vested in the High Court can legally be invoked for the redressal of a grievance if an order, judicial or executive, is found to be in violation of law.
6. Thus, he submitted, the view taken by the High Court that the order assailed in the writ petition, cannot be interfered with is not correct.
7. ' In reply Raja Muhammad Siddique, the learned counsel for the respondents, has argued that the question whether respondent No,2 was a separate family or not or whether he was entitled to allotment is a question which falls within the jurisdiction of Rehabilitation Authorities and, thus, the impugned order is not open to challenge in the writ jurisdiction of the High Court. He further argued that in fact predecessor of the appellant's father was not entitled to any allotment as is evident from the finding of the Assistant Rehabilitation Commissioner, according to which he had obtained compensation for property which he had left in Indian held Kashmir; he has also inherited 4 kanals of land from his father; which shows that in fact the predecessor-in-interest of the appellant was included in the family of his father. However, the learned counsel for the respondent frankly conceded that there is no finding by the High Court or the Custodian on the point as to whether respondent No,2 was a member of a separate family or not and what was the effect of the documentary evidence relied upon by appellant in support of the aforesaid contention.
8. We have given our due consideration to the arguments raised at bar. There is no finding by the High Court on the moot point as to whether respondent No,2 was disentitled to any allotment because he was member of "another family" and had no independent family of his own; the said findings are necessary for the just decision of the writ petition because in the case it is found that he had no separate family of his own, his allotment may be adversely affected. It may be stated that without finding of the High Court on the said point, it is not possible for this Court to decide the appeal on merits. Therefore, we accept the appeal, set aside the impugned judgment of the High Court and remand the case with the direction that it shall rehear the arguments in the writ petition in the light of above observations and decide the same afresh according to law. In the circumstances of the case we make no order as to the costs.
9. Appeal accepted/