' IFTIKHAR MUHAMMAD CHAUDHRY, ACTG. C.J.---In Civil Petitions Nos. 1574-L and 1651-L of 2002, instituted by both the rival parties, the impugned judgment, dated 11th March, 2002 passed by Lahore High Court, Lahore has been assailed, therefore, we propose to dispose them of jointly, by means of instant common order.
2. These cases have chequered history, spread over about a period of more than two decades, during which the case is coming up for 3rd time before this Court but so far it has not been decided that amongst the parties at variance who is eligible to hold the office of Lambardar of Chak No,119/12-AL, Tehsil Chicha Watni, District Sahiwal. Previously, Wajid Ali father of Noor Muhammad was permanent Lambardar but on his demise on 19th November 1983, he was not appointed as Lambardar by the Assistant Commissioner/Collector because he was minor at that time. However, vide order, dated 19th August, 1984 Subedar Asghar Ali predecessor-in-interest of respondents Nos.5---7 [hereinafter referred to as 'private respondents] was appointed as Lambardar, statedly on account of his meritorious services rendered by him in the Pak Army. The order of Assistant Commissioner/Collector depriving the petitioner Noor Muhammad from appointing him as Lambardar was assailed before Commissioner who accepted the appeal on 3rd November, 1985, in pursuance whereof petitioner was appointed as Lambardar in place of his deceased father Wajid Ali Khan. The order of the Commissioner was assailed by Subedar Asghar Ali predecessor-in- interest of private respondents before the Board of Revenue by invoking its revisional jurisdiction which was allowed on 12th March, 1986. Relevant para. From the judgment is reproduced hereinbelow:--- ' "On this point, I would, follow the ruling of the Lahore High Court that the preference on ground of primogeniture is only directory and cannot operate to the exclusion of other considerations. Since the purpose of appointing a Lambardar is to secure the services of the best available candidate to discharge the mandatory functions and against the landowners, obviously such purpose would not be fulfilled by appointing a minor who will have to operate through a Sarbrah which may not be as qualified as other available candidates. The conclusion which follows is that in case of a minor, the choice has to be made from amongst other eligible candidates."
' The petitioners preferred review petition before the Member, Board of Revenue against above order but without any success as the same was dismissed on 7th May, 1986. Under these circumstances, he invoked the Constitutional jurisdiction of Lahore High Court. The writ was accordingly issued and the petitioner's appointment as Lambardar in pursuance of the order of the Commissioner, dated 3rd November, 1985 was restored. The predecessor in-interest of private respondents assailed the judgment of the High Court before this Court which has been decided vide judgment reported in the case of Haji Noorwar Jan v. Member, Board of Revenue, N.-W.F.P. And others (PLD 1991 SC 531) alongwith other connected cases, pertaining to the Province of Punjab as well as N.W.F.P. However, relating to the appeal arising out of the judgment of the High Court, dated 28th October, 1987, following observations were made:--- '"Similarly in the third case (Civil Appeal No,28 of 1988), by making the broad observation that 'in case of a minor, the choice has to be made from amongst other eligible candidates; the entire principle of primogeniture has been ignored and the. Rule applicable overridden and that too while deciding an individual case."
' As a result of above observation, the appeal filed by Subedar Asghar Ali was partially allowed and case was remanded to the Board of Revenue with direction to decide afresh the revision petition brought before it in accordance with law. Concluding para. From the said judgment is reproduced hereinbelow:--- ' "In view of the discussion above, Civil Appeal No,10 of 1986 is dismissed, but the other, two appeals (Civil Appeals No,458 of 1987 and 28 of 1998) are partly allowed insofar as after declaring the other Member, Board of Revenue to be illegal and without lawful authority the High Court has blessed with finality the order of the Commissioner, which it could not do. As pointed out, the selection of the Lambardar is the executive responsibility of the Revenue has been corrected, it will be for the Board of Revenue to decide afresh the revisions brought before it in accordance with the law.
Hence, these two appeals (C.As. Nos. 458 of 1987 and 28 of 1988) are remanded to the Board of Revenue for decision afresh."
' After the remand of the case by this Court to the Member, Board of Revenue, Subedar Asghar Ali passed away on 7th January, 1992 as such the Member, Board of Revenue impleaded them as respondent in the proceedings pending before him and ultimately vide order, dated 14th June, 1992 terminated the proceedings with the observation that Subedar Asghar Ali had died and since this right was personal, therefore, his appeal stands abated. It was also observed that the petitioner was entitled to be appointed as Lumbardar and the decision of the Commissioner was upheld.
Against this order the successor-in-interest of Subedar Asghar Ali i.e, private respondents filed Writ Petition No,2117 of 1992 before Lahore High Court, Multan Bench, Multan, which was issued vide order, dated 20th October, 1993 with the direction that the matter should be deemed to be pending with the Member, Board of Revenue for decision afresh in accordance with law, after hearing the parties, keeping in view the observation made by the learned Single Judge.
' It may be noted that learned High Court instead of directing to the Member, Board of Revenue to decide the appeal filed by the predecessor-in-interest of private respondents, in view of the observation made by this Court in the case of Haji Noorwar Jan (ibid), directed to decide the case keeping in view the observation of the learned Single Judge. As such petitioner preferred appeal being No,642 of 1995 before this Court, which was allowed on 22nd May, 1995. Relevant para. Therefrom is reproduced hereinbelow:--- ' "It was contended before us that the observation by the learned High Court in the impugned judgment is contradictory to the earlier order of this Court inasmuch as practically the learned High Court has ousted the petitioner from considering him as Lambardar on the touchstone of Rule 19(2). No doubt, it was contended by the learned counsel, that Supreme Court has made some observation with regard to the application under section 19(2) but did not discard its operational value rather it appears that suggestion had been made to consider the value of such provision appointing a Lambardar on the death of a permanent Lambardar. However, the learned counsel did not challenge the order of remand but stated that the observation of the learned High Court regarding merits of the case in view of the earlier observation of this Court shall be set aside and the matter shall be left open for consideration by the Board of Revenue on merits in accordance with law applicable to the case. To this suggestion learned counsel for the respondents agreed.
Accordingly, this petition is converted into appeal which is allowed and the judgment of the learned High Court is modified to the effect that the matter which is deemed to be pending before Board of Revenue shall be decided on merits in accordance with law applicable to the case and in such case the learned Member of the Board of Revenue shall not to be influenced by any observation made by the learned High Court in the impugned judgment on merits. The parties are directed to bear their own costs."
' On the remand of the case Member, Board of Revenue vide judgment, dated 28th October, 1996 dismissed the Revision Petition No,55 of 1985. Concluding paras. From the said judgment read as under:--- "5. It has also been repeatedly held that being a minor is no bar to the appointment as a Lambardar. Minority is not mentioned in rule 19(2) as a disqualification or a vitiating consideration adversely affecting the entitlement of an heir for the appointment of Lambardar. The Courts cannot provide what the Legislature chooses to ignore. That a minor is eligible for the appointment as Lambardar is supported by rule 26 of the West Pakistan Land Revenue Rules, 1968 which provides inter alia that where by reason of being a minor a headman is unable to perform the duties of his office in person, a substitute may be appointed for the purpose. This provision would not have existed if the Legislature had decided to declare that minors were ineligible for appointment as Lambardar. The ruling in PLD 1989 SC 344 is also not relevant to the matter before this Court. It only kept open for the Board of Revenue and other authorities to remove considerations relatable to Customary Law and legal practices from their directions, rules and other legal instruments. It did not hold any revision or ruled ultra vires.
' The copies of Register Haqdaran Zamin submitted by the respondents clearly show that he owns sufficient land to stand as security for Government dues. The petitioner has also not produced any evidence in support of his contention that the respondent is not a resident of village. He also does not suffer from any disqualification listed in rule 19(2)."
' The private respondents being aggrieved from the order of the Board of Revenue preferred a writ petition before Lahore High Court which has been allowed while impugned judgment, dated 1 1 th March, 2002. It is interesting to note that the learned High Court ignored the observation of this Court in the case of Haji Noorwar Jan (ibid), noted in its paras. Which have been reproduced hereinabove, relied upon the earlier view of this Court in the case of Ghulam Hussain v. Ghulam Muhammad and another (1976 SCMR 75), and thereafter, remanded the case to the Member, Board of Revenue to consider academic qualification of the respondent Muhammad Aqeel @ Muhammad Khalil qua the petitioner Noor Muhammad, Concluding para from the judgment reads as under:--- "5. Now coming to the merits of the case, the point, whether provisions of Rule 19 are directory, issue has been conclusively clinched by the Honourable Supreme Court in the case reported as 1976 SCMR 75. In this behalf, following paragraph is reproduced:--- ' "The argument of the learned counsel was that the petitioner being nearer consanguine compared to the respondent was 'nearest eligible heir' and as such had the right to be appointed Lambardar in competition with the respondent. The argument in our opinion is misconceived. On its proper construction far from conferring any right much less a legal right, the rule at the best in directory which provides, a guideline for the choice of the successor Lambardar, the whole object being to appoint a person in the opinion of the appointing authority the most fit person from among eligible under Rules. It would be wrong to impart greater efficacy to the above rule."
' Therefore, while disposing of the matter, it was incumbent upon the Board of Revenue not to consider the rule of primogeniture as main reason for appointing Noor Muhammad as Lambardar, rather the qualification both the rival contestant i.e, Aqeel Ahmed son of Subedar Asghar Ali, should have been kept in view. I have been apprised in the Court today that, Noor Muhammad is only matriculate and holds about 27 Kanals and 9 Marlas in the Patti, whereas Aqeel Ahmed is graduate and is owner to the extent of 19 Kanals. The Member, Board of Revenue has not considered the qualification of Aqeel Ahmed, but has only kept in view the rule of primogeniture and also that there is no disqualification imputed to Noor Muhammad. This approach is absolutely not in consonance with the law because the appointment of Lambardar is with an object that more fit candidate may be appointed, therefore, it was necessary for the purpose of comparison about the fitness, that the qualification of both the candidates must be considered and kept in view. As the Boar& of Revenue has failed to. Consider Aqeel Ahmed's qualification, therefore, such order cannot be sustained in law."
' As such instant petitions for leave to appeal have been filed.
3. Mr. Muhammad Akram Sheikh, Sr. ASC argued the case on behalf of petitioner Noor Muhammad that under Rule 19, sub-Rule (2) of the West Pakistan Land Revenue Rules, 1968 (hereinafter referred to as `the Rules, 1968') the petitioner being son of permanent Lambardar Wajid Ali Khan was eligible to be appointed as Lambardar according to rules of primogeniture even during the days of his minority according to rule 26 of the Rules, 1968 comparing to late Subedar Asghar Ali, who was not eligible for the appointment as Lambardar under Rule 19(2) of the Rules, 1968, in view of the judgment of this Court in the case of Noorwar Jan (ibid). He further contended that cause of action had accrued to the petitioner against Subedar Asghar Ali and not against his son Aqeel Ahmed who had joined the proceedings alongwith others being the legal heir of Subedar. Asghar Ali, after his death on 7th January, 1992. He also pointed out that as far as Aqeel Ahmed son of Subedar Asghar Ali is concerned, he has never made an independent application for his appointment as Lambardar on the groundof being academically more qualified than the petitioner, therefore, on joining proceedings, which were of civil nature on account of his personal academic qualification, he could not improve the case of late Subedar Asghar Ali.
4. On the other hand Mr. Hassan Ahmed Kanwar, learned counsel for private respondents stated that instant petition is incompetent as it has been filed against the interim order, in view of the judgment reported as Habib Bank Ltd. And others v. Syed Zia-ul-Hassan Kazmi (1998 SCMR 60) and United Bank Ltd. v. Ahsan Akhtar and others (1998 SCMR 68). In addition to it, he stated that this Court has declared the rule of primogeniture contrary to the Injunctions of Islam in the case of Maqbool Ahmed Qureshi v. The Islamic Republic of Pakistan (PLD 1999 SC 484), therefore, the petitioner had no lawful right to claim his appointment as Lambardar being the successor-in- interest of Wajid Ali Khan. According to him the petitioner as per his conduct was stopped to challenge the locus standi of respondent-Aqeel Ahmed to claim the appointment of Lambardar, in view of the fact that after the death of Subedar Asghar Ali on 17th January 1992 the matter was pending on the file of Member, Board of Revenue, where the respondents were impleaded as party and petitioner contested the matter with them and ultimately before this Court at the time of decision of Civil Appeal No,642 of 1995, dated 27th May, 1995, he conceded for decision of the matter by the Member, Board of Revenue on merits, in accordance with law, therefore, according to him as respondent Aqeel Ahmed son of Subedar Asghar Ali was a party before this Court, as such when the case will be examined on merits, then a competition will take place between petitioner and respondent Aqeel Ahmed and not between petitioner and late Subedar Asghar Ali. He stated that in such-like situation, the parties are bound by their admissions. He further argued that in the cases pertaining to appointment of Lambardar, the legal heirs of one of the parties are always deemed to be necessary party before making any observation against them, in view of the judgment in the case of Raja Irshadul Haq Kayani v. Member Board of Revenue West Pakistan, Lahore and another (PLD 1974 Lah. 114).
5. We have heard the learned counsel for the parties at length and have considered their arguments carefully.
6. It would be appropriate to first of all deal with the objection raised by the learned counsel for private respondents, relating to maintainability of petition filed by Noor Muhammad, challenging the impugned order passed by High Court whereby the case has been remanded to the Member, Board of Revenue. In our opinion, this objection is not available to him for the reason that learned counsel on behalf of legal heirs of Subedar Asghar Ali had also filed a separate petition being No,1651-L of 2002, assailing the same order, therefore, he cannot be allowed to blow hot and cold in one breath. Besides it as it has been pointed out in paras. supra that the litigation between the parties is spread over a period of about two decades and so far it has not been decided by any of the forum that amongst both the parties, which one is eligible for the post of Lambardar, therefore, examining the impugned order in the light of the objection of the learned counsel from this angle, one can hold that the interference by the High Court in the judgment of Member, Board of Revenue, dated 28th October 1996 tantamounts to reopen the case with the directions to him to decide the same afresh, keeping in view the observation made therein, namely as to whether who amongst both the candidates i.e, petitioner Noor Muhammad and respondent Aqeel Ahmed is eligible on the basis of their academic qualification, to hold the post of Lambardar. Therefore, remand of the case with such observation would not debar this Court to entertain petition for leave to appeal. It is to be noted that interlocutory order is an order in which no final verdict is pronounced but an ancillary order is passed with the intention to keep it operative till final decision but here in instant case learned High Court by means of impugned judgment on setting aside the order of the Member, Board of Revenue, dated 28th October 1996, had finally remanded the case to the Member, Board of Revenue for fresh decision keeping in view certain observations made therein. Such order was passed by the High Court in exercise of its writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, where perhaps for the first time, it was argued that respondent Aqeel Ahmed possesses qualification of graduation which is higher than the qualification of petitioner, knowing well that actually dispute is between the petitioner and Subedar Asghar Ali, predecessor- in-interest of private respondent on the basis of cause of action which accrued to them in 1982/1984 when permanent Lambardar i.e, father of petitioner Wajid Ali passed away and respondents had only stepped into the shoes of their predecessor-ininterest, therefore, they cannot put up their own case. As such the judgment of the High Court on the face of it was against the settled proposition of the law namely that the matters are required to be c decided between the parties on the basis of cause of action, which has accrued to the aggrieved party at the time when the action was initiated. Thus the judgments relied upon by the learned counsel i.e, ' Habib Bank Ltd. (ibid) and United Bank Ltd. (ibid) have not advanced his case in any manner.
7. Now turning towards the objection of the respondent that the rule of primogeniture has been declared contrary to Injunctions of Islam, in view of the judgment of the Shariat Appellate Bench of this Court in the case of Maqbool Ahmed Qureshi (ibid). In this behalf it is noteworthy that as per the Court's order the provisions of section 19(2) of the Rules, 1968 has been declared repugnant to Injunctions if Islam. Consequently, Rules 25 and 26 of the Rules, 1968 were also held to be repugnant to the Injunction of Islam only to the extent they recognize the appointment of a minor or an incapable person as a Lambardar, therefore, said provision shall cease to have effect with effect from 1st September, 1999 on which date the decision of Shariat Appellate Bench of Supreme Court shall take effect. Admittedly cause of action has accrued to the petitioner with effect from 19th November, 1983, when his father had died, therefore, his case is ought to be decided as per the Rule 19(2) of the Rules, 1968 as it was existing at that time. Thus objection raised by the learned counsel for private respondent in this behalf is repelled being without force.
8. It is important to note that this Court in first round of litigation with reference to the case of petitioner, specifically observed that in case of a minor a choice has to be made from amongst other eligible candidates, the entire principle of primogeniture has been ignored and the rule applicable overridden and that too while deciding an individual case. It was further observed by this Court that any error on the part of Board of Revenue in understating the law, in applying it or in laying down the law can and must be corrected in the Constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law, and after making such observation the judgment of the High Court, dated 28th October 1987 was set aside with the observation that after the error of law in the judgment of the Member, Board of Revenue has been correct, it will be for the Board of Revenue to decide afresh the revisions brought before it in accordance with the law.
Undoubtedly, after passing of this order, the respondents have joined the proceedings as successor-in-interest and they were not contesting the proceedings in their own rights independently. As far as, Member, Board of Revenue is concerned, he has decided the case vide judgment, dated 28th October, 1996, after the death of Subedar Ashgar Ali, considering the respondents to be suitable person for the appointment of Lambardar, qua the petitioner. The conduct of petitioner namely he had conceded before this Court in the judgment, dated 22nd May 1995 passed in Civil Appeal No,642 of 1995 to decide the case on merits cannot be objected to because by making such concession he had not conceded independent right of the private respondent to claim that one of them i.e, Aqeel Ahmed is eligible for the appointment of Lambardar. Contrary to it, his view point was that the case should be decided on merits in accordance with law i.e, law which was prevailing at the time when cause of action has accrued to him. In our considered opinion, the learned High Court had fallen into error in remanding the case to the Member, Board of Revenue to reconsider the case of petitioner Noor Muhammad with the case of one of the legal heirs of Subedar Asghar Ali i.e, Aqeel Ahmed, because the petitioner Noor Muhammad has challenged the appointment of Subedar Asghar Ali, predecessor-in-interest of respondents as back as in the year of 1984 by filing appeal before the Commissioner against the order of the Assistant Commissioner/Collector, dated 19th August, 1984. Undoubtedly, respondent Muhammad Aqeel could have claimed his appointment independent to the claim of petitioner, if Member, Board of Revenue being an Apex Court on the Revenue side had recorded findings against him holding that he is not eligible for the post of Lamberdar and in that case then the Revenue Authorities had invited applications from the eligible candidates to fill up the vacancy of Lambardar in accordance with rules. But in instant case petitioner Noor Muhammad has not been found ineligible to hold the post of Lambardar, therefore, learned High Court may have not observed that as one of the legal heirs of Subedar Asghar Ali is more qualified academically than the petitioner, therefore, he is eligible to hold this post.
' Thus in view of above discussion, we are of the opinion that for the above reasons, impugned judgment of the High Court is not sustainable in the eye of law. Civil Petition No,1651-L of 2002.--- Since hereinabove the impugned judgment has been found not sustainable in the eye of law, therefore, there is no necessity to dilate upon the merits of this petition.
' In instant case, official respondents have not filed caveat. However, learned counsel for the parties informed that official respondents had never contested the proceedings. Even otherwise, the Member, Board of Revenue, who is Apex Authority in the hierarchy of Revenue Law, would have not opposed the petition because the order passed by him was interfered by the High Court by means of impugned judgment and against that order petitioner Noor Muhammad had approached this Court with the prayer to restore the same. In addition to it the cases pertaining to the appointment of Lambardar are always contested by the private parties, inter se on account of their respective rights and for such reason the official respondents try to keep themselves away from the legal proceedings.
' Thus for the foregoing reasons, Civil Petition No,1574-L of 2002 is converted into appeal and allowed whereas Civil Petition No,1651-L of 2002 is dismissed. Parties are left to bear their own costs.