The petitioners challenge the orders, dated 27th December 1968 of the Deputy Settlement Commissioner, dated 15th October 1976 passed by the Settlement Commissioner and dated 13th December 1976 of the Deputy Settlement Commissioner, on , the ground that as they or their predecessors-in-interest, had been brought on the record, as legal heirs of Mst. Zainab Begum, vide order dated 29th November 1961 of the Settlement Commissioner and were being treated as such subsequently, before the High Court and the Supreme Court, the respondents 3 and 4 could not refuse to implead and hear them as such.
2. Brief facts of the case are that Property No. 154-B, Model Town, Lahore, was in possession of Mian Muhammad Sharif, Nur Din and Haji Muhammad Hussain. Haji Muhammad Hussain died issueless and was survived by two widows Mst. Zainab Begum and Mst. Iqbal Begum. On the enforcement of Settlement Scheme No. I under the Displaced Persons (Compensation and Rehabilitation) Act, the two widows submitted a joint CH form. Muhammad Sharif and Nur Din also submitted their NCH forms. The Deputy Settlement Commissioner however, transferred the entire property to the two widows but rejected the other forms. Nur Din continued his proceedings by way of appeal and revision. During the pendency of his revision petition, Mst. Zainab Bibi died on 15th July 1961.
Consequently, the Settlement Commissioner passed an order dated the 16th August 1961 directing that her legal representatives be brought on the record. Nur Din, who was petitioner before him, submitted an application with a prayer to bring on record Muhammad Ramzan, Muhammad .
Munir and Mst. Bashir Begum as legal representatives of Mst. Zainab Begum. It was supported with an affidavit. Nur Din is also stated to have deposited the process fee and notice dated 12th September 1961 was issued. Mr. Nasarullah Qureshi, Advocate then appeared on behalf of the legal representatives. The application came up before the Settlement Commissioner on 29th November 1961 when the legal representatives were impleaded and the revision petition accepted.
3. Muhammad Sharif continued his proceedings by way of appeal and revision and went up to the Supreme Court without any success. It appears from Annexure 'A' a copy of the Writ Petition No. 1429-R-63 filed by Muhammad Sharif that petitioners 1 and 2 had been joined as respondents 3 and 4 alongwith Mst. 1qbal Begum, Muhammad Munir petitioner had also filed a written statement and while defending the order of the Settlement Commissioner he prayed for dismissal of the writ petition. It is contended by the learned counsel that Mst. 1qbal Begum never took any objection to the status of the petitioners or their predecessor-in-interest as heirs of Mst. Zainab Aegum. Writ Petition No. 1009-R-65 was then filed but Mst. 1qbal Begum and Zainab Begum were shown as respondents at Serial No. 4. Annexure `D' on that petition which is the order dated 29th November 1961 passed by Raja Ziaullah Khan, however, shows that legal heirs of Mst. Zainab Begum had been brought on the record. C. M. 2074 of 1969 on the same file by Muhammad Sharif for being implpaded as a party included Annexure R/A, a copy of an application addressed to the President of Pakistan, which also bears names of petitioners as respondents.
4. In 1968, Mst.Iqbal Begum filed a petition before the Deputy Settlement Commissioner praying that she be treated as the sole owner in view of the death of Mst. Zainab Begum without disclosing that petitioners and Mst. Bashir Begum had already been impleaded as such as far back as 1961.
She also filed a false affidavit alongwith it. Agha Babar Shah, the Deputy Settlement Commissioner is stated to have recorded her statement and passed an order on 27th December 1968 that she was the legal heir of Mst. Zainab Begum. He also directed that name of Mst. Zainab Begum be deleted from the P. T. O. Mst. 1qbal Begum then entered into an agreement of association with Muhammad Arshad respondent No. 1 and surrendered all her rights in his favour. A P. T. O. Was, therefore, issued to him for the entire property.
5. On 9th of August 1971, Mr. Muqarrab Khan, Settlement Commissioner reviewed the order dated 29th of November 1961 of his predecessor in-office and directed that the word `garrage' as occurring in that order be substituted by the word "outhouses". Consequently, Writ Petition No. 928- R-71 was filed by Muhammad Arshad and Mst. Iqbal Begum respondent against Nur Din challenging the correction. It came up before this Court on 23rd April 1975 when it was accepted and the case remanded. The petitioners were not impleaded a party in that case also and they deny even its knowledge. The case in remand was taken up by Syed Walayat Hussain Bokhari, Settlement Commissioner, on an application filed by respondent No. 1. On coming to know of it the petitioners also made an application for being impleaded but their application was rejected on 29th October 1976 mainly on the reason that as they were not party before the High Court they could not be allowed to join. The Settlement Commissioner, however, decided the case an 29th October 1976 and sent it back to the Deputy Settlement Commissioner for implementation. There also the petitioners applied to be impleaded as party but their application was finally rejected on 30th November 1976. It is stated by the learned counsel that the implementation of the order of the Settlement Commissioner has not as yet been made and the matter is still awaiting consideration.
6. The learned counsel for the petitioners contended that the order dated 27th December 1968 passed by the Deputy Settlement Commissioner holding Mst. 1qbal Begum as the heir of Mst.
Zainab Begum and exclusive owner of the property was void and inoperative being ex parte and in violation of the order dated 29th November 1961 passed by the Settlement Commissioner. It was submitted by him that not only had the petitioners or their predecessors-in-interest been impleaded as legal heirs in the proceedings taken by Muhammad Sharif but also those taken by Nur Din. Reference has already been made to Writ Petition No. 1429-R-63 and 1009-R-65 and the attached documents referred to above.
7. It was further submitted that Mst. Iqbal Begum played a fraud on the Deputy Settlement Commissioner, the High Court and respondent No. 1 in concealing the fact that Mst. Zainab Begum left behind her legal representatives who had in fact been impleaded as party in the earlier proceedings. Objection was also taken against the refusal on the part of the Deputy Settlement Commissioner and Settlement Commissioner to consider the previous record and to allow the petitioners to join as party with respondent No. 1.
8. The learned counsel for respondent No. 1 raised the objection of laches. According to him the order had been passed in 1968 whereas the petitioners were seeking the same to be set aside after 9 years. He further submitted . That precisely the same matter is pending before Mr. Gulzar Ahmad But, Civil Judge, Lahore and the petition before this Court should not be entertained. Correctness of the certified copy of the P. T. O. Annexure `J' placed on the record was also questioned. The learned counsel pleaded that there is no order on the record showing that the petitioners or their predecessors-in-interest had been impleaded as party by the Settlement Commissioner.
9. The record before me particularly, the copy of the Writ Petition No. 1429-R-63 (checked with the original in this Court) shows that Muhammad Munir and Muhammad Ramzan has been impleaded as party alongwith Mst. Iqbal Begum in that case. Annexure `B' also shows that a notice by the Attorney while filing a petition before the Supreme Court bad been issued at the instance of Muhammad Sharif against Muhammad Ramzan and Muhammad Munir petitioners. Annexure R/A addressed to the President of Pakistan alongwith C. M. 2074 of 1969 in Writ Petition No. 1009-R-65 also shows that the petitioners had been impleaded as parties. The order of Settlement Commissioner dated 16th August 1961 (Annexure `C') shows that Mst. Iqbal Begum was present when the petitioner was directed to bring on record the legal representatives of Mst. Zainab Begum.
A certified copy of the affidavit of Nur Din filed alongwith the application to implead the legal representatives is to the effect that according to him Muhammad Munir, Muhammad .Ramzan and Mst. Bashir Begum were the legal representatives. Annexure `F' a certified copy of the notice sent to the present petitioners by the Settlement Commissioner also proves the same situation. Annexure `G' is the power of attorney on behalf of Muhammad Munir in favour of Mr. M. Nasarullah Qureshi, Advocate.
10. Certified copy of the order dated 29th November 1961 (Annexure `H') of the learned Settlement Commissioner also shows that legal representatives of Mst. Zainab Begum and Iqbal Begum were represented by their counsel. An application dated 19th December 1964 by Muhammad Munir and Muhammad Ramzan to include their names in the P. T. O. As. They were the legal representatives of Mst. Zainab Begum shows that they had been adjudged as the legal heirs vide order dated 29th November 1961 of the Additional Settlement Commissioner. Annexure `J' is the P. T. O. With the names of the. Petitioners. From all these documents it is quite clear that the names of the petitioners had been entered in the various records of the Settlement Department, the High Court and the Supreme Court, as the legal heirs of Mst. Zainab Begum. Prima facie, therefore, the order of the Deputy Settlement Commissioner dated 27th December 1968, had been procured by misrepresentation.
11. It is correct that the Settlement Commissioner was implementing the order of the High Court passed in Writ Petition No. 928-R-71 wherein the petitioners had not been impleaded as party. The Settlement Commissioner, however, ought to have considered the application of the petitioners on merits to see if they were an interested party alongwith respondent No. 1. But as the petitioners have not now impleaded Nur Din as a party, they cannot challenge the final order passed in his favour by the Settlement Commissioner. The interim order of the Settlement Commissioner refusing to implead petitioners as party, however, can be objected to. The same is the position with the order of the Deputy Settlement Commissioner wherein he refused to consider the petitioners as party. He also does not seem to have applied his mind to the record referred to above.
12. For the reasons given above, I am quite clear on the basis of the record, referred to above that the petitioners had been impleaded as party. The fact that respondent No. 1 had sworn a false affidavit before Deputy Settlement Commissioner should not penalize the petitioners. The omission to implead them as party in Writ Petition No. 928-R-71 also cannot take away their right in the property. In the circumstances, .No question of laches arose. The Deputy Settlement Commissioner could go into this fraudulent misrepresentation even in view of Raja Muhammad Fazil's case (PLD 1975SC331). The petitioners thus had a right to be beard by the Settlement Commissioner and later by the Deputy Settlement Commissioner as any order passed by them could directly affect their rights. The objection that as the matter is before the civil Court, this jurisdiction should not be exercised is not valid as the civil Court shall not be able to vary the order of the Deputy Settlement Commissioner to be passed in implementing the order of the Settlement Commissioner.
The impugned orders are, therefore, declared to be without lawful authority and of no legal effect.
The Deputy Settlement Commissioner shall, therefore, implead the petitioners as party and hear them also before passing his final order. As the question raised was not free from difficulty, the parties shall bear their own costs.