' MIAN SHAKIRULLAH JAN, J.--- This judgment shall dispose of Writ Petition No,1683 of 1991 (Haji Sarir Ahmad v. Nawabzada Shahabuddin and others) Writ Petition No,610 of 1992 (Nawaz Muhammad Shah Jehan Khan was deposed and his son Muhammad Shah Khisro v. Government and others) and C.M. No,486 of 1991 (Shahzada Hisamuddin v. Nawab Muhammad Shah Khisro), as in all the matters the question of devolution and distribution of the properties of the Ex-Nawab of Dir amongst his legal heirs or transferee therefrom is involved.
2. Dir, a Princely State, was incorporated as one of the "Specified areas" into Province of West Pakistan on 14th October, 1955 by the provisions of clause (iv) of subsection (1) of section 2 of the Establishment of West Pakistan Act, 1959. In the Constitution of Islamic Republic of Pakistan, 1956, vide Article 218 Dir was included in the definition of "Special areas". In October, 1960 the then Nawab of Dir Sir Muhammad Shah Jehan Khan was deposed and his son Muhammad Shah Khisro Khan had taken over as Nawab in his place. Through Regulation 1 of 1960, Dir (Advisory Council)
Regulation of 1960, a Council of Advisors was constituted comprising of Chief Advisor, who is to be the Chairman of the Council and was to be appointed by the Ruler with the concurrence of Government, and twenty elected members. This Regulation has also prescribed the territories of the State of Dir. In the Constitution of Republic of Pakistan, 1962 vide Article 242, Dir was included within the definition of "Tribal Areas". Regulation II of 1967, Dir (Administration) Regulation, .1967 was promulgated vide which Nawab Muhammad Shah Khisro ceased to exercise and powers or perform any function with respect to the matter falling within the Legislative competence of the Provincial Legislature and relating to the administration of such territories and such powers and functions were directed to be exercised and performed by Political Agent, Dir, or any other person or authority empowered by the Provincial Government, subject to the general supervision and direction of the Government. Dir Advisory Council Regulation, 1960 was repealed and the Dir Advisory Council established under the latter Regulation was abolished. Regulation of 1967 was repealed by a Regulation I of 1969, Dir Chitral and Swat (Administration) Regulation, 1969. This Regulation comparatively a comprehensive one providing for other matters incidental or consequential accruing from the promulgation of the Regulation and was made applicable to the other two States i.e, Chitral and Swat with some modification e.g. The person exercising the powers and perform the function on behalf of the Government was not confined only to the Political Agent.
3. There was an uprising in Dir, somewhere in the year 1962, which resulted from the abolition of a system called Bigar. In this system the original owners or Daftrees were liable to military service to the State/Nawab at the time of need. Since the owners, considered themselves as men of Status and could not perform the services themselves, they earmarked large portion of lands for other people who were required to perform these services for the State and they either paid no rent to the landlord or paid only nominal rent in the shape of Ghee, goat, chicken and rendered small service for harvesting and sowing for some time in a year. Thus, these persons were given the lands to utilize its produce mainly for the purpose of performing these services for the State in place of their landlords. As a result of the abolition of Bigar, the landlords demanded rent from their tenants, as they were no more rendering the military services to the State, or to vacate the land which was refused by the tenants. This lead to land dispute and resulted in the unrest and arm clashes.
4. Some attempts were made by the Government in order to put an end to the trouble and ultimately a Commission was appointed called the Dir Swat 'Land Dispute Enquiry Commission on 8th October, 1970, with the following terms of reference:--
(1) To enquire into and identify the nature and extent of the agrarian problem Dir District with special "reference to the property disputes between--
(a) the Nawab and the ousted claimant-owners and
(b) the land owners and the tenants.
(2) To enquire into and identify the causes which led to the non-implementation and failure of the decisions made by the Government in August, 1963, and the recommendations of the Land Commission in September, 1965.
(3) To make recommendations and suggest measures how best to solve this problem not only with a view to putting an end to the present conflict but also laying down a sound and firm basis for the ultimate land settlement operations at an early date.
(4) To determine what is the State property and what is the private property of the late Nawab Shah Jehan Khan.
(5) To determine who are the legitimate shareholders in the private property of the said late Nawab and what is the extent of their share in each case, and
(6) To determine the manner in which to distribute the various items of private property of the late Nawab amongst his shareholders."
5. The Enquiry Commission so constituted has carried out a detailed enquiry in accordance with the terms of reference, as mentioned above, and submitted its report to the Provincial Government.
6. Since in all cases the matters pertain to the property to which the Commission held Muhammad Nawaz, one of the four owners of exNawab to be entitled. Nawabzada Muhammad Nawaz Khan was not given any share in the immovable property situated in Dir as he had been disinherited by his father late Nawab Shah Jehan Khan and similarly he was also not given any share in the movable property but was given some properties located outside Dir and the relevant portion of the said report which is on page 68 reads as follows:-- ' "Having determined the rights and shares of three of the sons of the Nawab we now come to the question of determination of the rights and share of Muhammad Nawaz Khan, the eldest son. The present Nawab and the Khan of Hayaseri are of the opinion that Muhammad Nawaz is not entitled to any share as he was disinherited by the late Nawab Shahabuddin Khan Jandul, however, says that he is a son of the late Nawab and is entitled to a share; but his share should be out of the property of the present Nawab Muhammad Shah Khisro Khan. I do not think that this statement is based on good motives and is intended not so much to benefit Muhammad Nawaz as to harm the present Nawab. As already stated, the late Nawab fixed shares in his property for the three sons. If Muhammad Nawaz is held to be entitled to any share his share should be found out of the properties of all the other 3 brothers. It is true that by his actions the late Nawab Shah Jehan Khan had clearly indicated that he had disinherited Muhammad Nawaz Khan, but since the late Nawab did not clearly express his decision in writing and did not disown Muhammad Nawaz as a son, we think that on grounds of equity he may be given some share, though it is not necessary that this share should bear any relation to the extent of the share of his 3 brothers. Another point worth considering in this connection is that Muhammad Nawaz is permanently settled at Mardan and has no roots in the former Dir State. We think that he may get his share out of the properties of the other 3 brothers situated outside Dir District. We recommended that he may be given the following properties:--
(1) 10 shops in Katra Domen Ganj, Mardan belonging to Muhammad Shah Khisro Khan (vide item 280 of List "A", Appendix "A").
(2) The 1/4th share of the Khan of Hayaseri in the Bungalow at Gulberg (Lahore) bought by the Nawab Shah Jehan Khan. This is shown as hereditary property in the lists of properties of Shahabud Din Khan of Jandul filed by him. Signed by him and admitted by him to be correct. Thus the four sons of the late Nawab have equal shares in it. In list "B" appended to this report this property is shown at No,2. The Khan of Hayaseri has already transferred all his properties in the Settled Districts outside Dir and his I/4th share in the hereditary Bungalow at Gulberg is the only property outside Dir which he has not transferred, therefore, this 1/4th share should go to Muhammad Nawaz Khan's own 1/4th share will bring Muhammad Nawaz's share to 1/2 in the bungalow. The remaining 1/2 will be shared equally by Nawab Muhammad Shah Khisro Khan and the Khan of Jandul. Each getting 1/4th. The Khan of Hayaseri will not get any share in this Bungalow. It is stated that somehow the Khan of Jandul has already managed to transfer half of this Bungalow in his own name. This cannot be permitted. He is entitled to 1/4th share only.
(3) One Sarai (Mandi) and 5 garages situated on Shahi Bagh Road at Peshawar in possession of Shahab-ud-Din Khan of Jandul (vide Item 3 of List B').
' In addition to this, the Nawab should continue to pay Rs,1,000 per mensem to Muhammad Nawaz out of his privy purse. Muhammad Nawaz should be satisfied with this and may not get any share in cash or movables.
' So much for the immovable property."
7. In order to give a statutory recognition to the report of the Commission two Martial Law Regulations were promulgated:--
(i) Regulation No,122 which called the Devolution and Distribution of Property (Dir and Swat)
Regulation, and
(ii) Regulation No,123 called the Settlement of Immovable Property Disputes (Dir and Swat)
Regulation.
For the purpose of the instant cases Regulation No,122 is relevant. Under para. 3 of Regulation No,122 it is Provincial Government, which on the basis of recommendations of the Commission to be notified in the official Gazette to determine-- (a)
(b)
(c) the respective shares of heirs of the two Ex-Rulers in their personal or private property.
' Vide para. 4(b), on the issue of an order under paragraph 3--
(b) the private or personal property of the two ex-Rulers referred to in paragraph 3 would evolve upon and be distributed among their respective heirs in accordance with the said order.
8. In pursuance of the Commission Report and also on the enforcement of Regulation No,122, the Provincial Government through a Notification No,10/16-SO. T.A.-II/72-1520, dated 15th September, 1972, while exercising powers under clauses (a) and (b) of paragraph 3 of Martial Law Regulation No,122 and on the basis of recommendations of the Commission, determined, inter alia, the respective shares of the heirs of the late Nawab Shah Jehan Khan. This is a little background of the case history.
9. Writ Petition No,1683 of 1991 pertains to the properties at S.No,3 of the report i.e, one Serai (Mandi) and five garages situated at Shahi Bagh, Peshawar.
10. Nawabzada Muhammad Nawaz felt aggrieved of the report of the Commission and also of the Notification of the Government as he was not given his alleged proper share of the inheritance but was given little property here and there, filed a revision petition against the aforesaid Notification before the Federal Land Commission. One of his complaints was that he was not heard and no opportunity of hearing had been afforded to him, on which ground the revision was accepted vide order, dated 12-2-1976 and the case was sent to the Provincial Government for giving him an opportunity of hearing which was done accordingly and ultimately the Provincial Government vide its order, dated 20-6-1977 upheld the previous order and Notification of the Provincial Government against which again a revision petition was filed which was later on decided by Mr. Justice (Rtd.)
Qaiser Khan, Chairman, Tribunal Land Dispute Dir Swat and Chitral vide his order, dated 17-4-1982.
11. Nawabzada Muhammad Nawaz Khan after having been failed in his attempts to get his alleged due shares in the inheritance, ultimately approached the concerned forums for the implementation of the report/order in respect of the properties of which he was held entitled. The matter was pending for a long time and ultimately, after getting the opinion of the Law Department Additional Secretary-II (Home) vide his order, dated 23-9-1986 directed Deputy Commissioner, Peshawar to deliver possession of the property, subject-matter of the writ petition to Muhammad Nawaz Khan in accordance with the recommendations of the Commission as carried on page 68 of the report and upheld in the decision dated 20-6-1977 by the Court of Deputy Secretary-III.
Despite sufficient correspondence between Deputy Commissioner, Peshawar and Deputy Commissioner, Dir at Timergara and with no result, the petitioner approached this Court in a Writ Petition No,127 of 1988 with a prayer to issue directions to Deputy Commissioner, Peshawar to perform his legal duties and enforce the law/decision of the Commission/Courts. This writ petition culminated into a short order passed on the basis of an agreement between the parties and which order is reproduced for the sake of convenience:-- ' "The learned counsel for the parties agree that respondent No,2, Deputy Commissioner, Peshawar be directed to implement the orders of Land Dispute Commission in favour of the petitioners in letter and spirit as ordered by the Provincial Government on 23-9-1986 (Annexure `P'). Order accordingly.
(2) In view of the statement of the counsel for the parties the writ petition is disposed of."
12. The petitioners getting knowledge of the order passed by the Courts with regard to the delivery of possession has filed the present writ petition challenging all the orders/decisions passed by the forums/Courts in respect of the title and delivery of possession qua the disputed property.
13. Acceding to the petitioners the land comprising the said property was originally owned by Dewan -Chander Bal. He sold the same to one Haji Abdul Qayum through sale-deed dated 4-6- 1943 registered on 26-6-1943. The latter constructed a Serai over the said land, but later on sold to Nawabzada Muhammad Shahabuddin Khan, one of the sons of Nawab Shah Jehan Khan, through a registered sale-deed, dated 16-2-1950. It was given by him on rent to late Haji Taj Muhammad and Haji Atta Muhammad some time in the year 1958. Since then the petitioners have continued in its possession undisturbed, first as tenants under Nawabzada Shahabuddin Khan and then as owner in their own right under the sale-deed, dated 16-10-1975. The petitioner came to know of the proceedings and orders when they were, at the behest of legal heirs of Muhammad Nawaz Khan, were asked to vacate the premises and to deliver the possession. On inquiry it was found that the property being treated as that of late Nawab Shah Jehan Khan and was a heriditary one by the Commission and was given to Muhammad Nawaz.
14. Though no written statement/comments have been filed by the respondents, however, the writ petition was contested vehemently.
15. The learned counsel for the petitioners has contended:--
(i) That the property in question was exclusively/solely owned by Shahabuddin on the basis of registered sale-deed dated 16-2-1950. It was not his ancestral property and has not devolved on him on the demise of his father late Nawab Shah Jehan Khan. Hence any recommendations made by the Enquiry Commission of the assumption that it was his hereditary property are incorrect and resultantly the order was invalid; that the recommendations are collusive, mala fide and the result of concealment and misstatement of facts;
(ii) that all the proceedings have been taken on the back of the petitioners without any notice to them and without affording an opportunity of hearing which is in violation of the principles of natural justice. Reliance was placed on a number of judgments, where an order, without affording an opportunity of hearing/ without issuance of notice has been passed;
(iii) that the order, dated 23-9-1986 passed by Additional Secretary-II (Mr. Taj Muhammad Khan) is illegal as the aforesaid order has been passed wrongly treating the case as one under Martial Law Regulation 123 while in MLR 122, Dir Swat (Devolution and Distribution of Properties) Regulation, 1972 no such provision regarding delivery of possession exist;
(iv) that it has been specifically mentioned in the writ petition that the order has been obtained surreptitiously, collusively by concealing the true facts but no written statement/counter-affidavit has been filed refuting the averments made in the writ petition and in the absence of which what has been stated in the writ petition would be taken as correct and on which score the writ petition is to be accepted. In this respect reliance was placed on Muhammad Gul Kakar v. Province of Balochistan 1986 PLC (C.S.) 560, Muhammad Farooq M. Memon v. Government of Sindh through its Chief Secretary 1986 CLC 1408 and Mst. Chuni Begum v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and others PLD 1965 (W.P.) Pesh. 112;
(v) that it is not only the recommendations of the Commission which confer the title on a person but it is the determination by the Government under Martial Law Regulation 122 which vest a person with a title of the property and in the instant case, to the knowledge of the petitioner, there is no such determination qua the disputed property as nothing to that effect is found in the Notification dated 15th September, 1972.
16. The learned counsel for the respondents while refuting the allegations of the petitioner, has contended that even irrespective of the merits of the case, the writ petition is incompetent in view of Article 199(v) whereby the High Court has been excluded from the definition of person and a writ cannot be issued to the High Court, while in the instant case a Writ Petition No,127 of 1988 in respect of the same property and the same dispute i.e, delivery of possession/implementation of the order of the Commission passed in favour of the then petitioner and in view of which the subsequent writ petition is not maintainable. The resulted consequences of the acceptance of the present writ petition is to nullify the effect of the order already passed by this Court. In this respect reliance was placed on Gohar Aman Khan v. Malik Aman and 3 others 1989 CLC 2032, Muhammad Ashraf and another v. Union Bank of Middle East Ltd. 1991 MLR 2037, Messrs Nusrat Elahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others 1991 MLD 2546, Shaikh Guizar Ali & Co. Ltd. And others v. Special Judge, Special Court of Banking and another 1991 SCMR 590, Zulfiqar Ali Bhutto v.
The Federation of Pakistan PLD 1980 Kar. 113, Mumtaz Ali Bhutto v. Mr. Justice Anwarul Haq and 2 others PLD 1979 Kar. 524, M.R. Najmi v. The Registrar, Federal Shariat Court, Islamabad PLD 1992 Lah.
302 and Oriental Fashions Ltd. And 4 others v. National Bank of Pakistan PLD 1985 Kar. 178
17. The learned counsel for the petitioners while replying the submissions made by the learned counsel for the respondents has contended that the aforesaid writ petition has not been decided on merits but on the basis of an agreement between the parties to which the petitioners were not party. They have not been impleaded in the writ petition as party and which order has been passed on their back without providing an opportunity of hearing. In addition to the judgments qua the violation of the principle of natural justice, as stated earlier to have been cited, the learned counsel for the petitioners has emphatically made a reference to the judgment in case of Grindlay's Bank Limited v. Murree Brewrry Company Limited and another PLD 1954 Lah. 745, wherein it was held that when an order has been obtained on the basis of fraud, collusion or on the back of a person then even a Single Judge can set aside the judgment of the High Court passed by a Division Bench.
18. Before going to the merits of the case on the various issues raised, the foremost question in the case is the competence of the writ petition in the wake of a judgment/order of this Court passed in the Writ Petition No,127 of 1988, whereby an order with regard to delivery of possession of the property/implementation of the orders of the forums below has been passed and while the petitioners prayed otherwise i.e, the order may not be implemented and the possession may not be delivered to the respondents or may not be taken from the petitioners.
19. The judgment cited by the learned counsel for the petitioners i.e, PLD 1954 Lah. 745 arising out of the Company case, which was originally taken before the learned Company Judge. The Central Government under sections 138 of the Companies Act, 1913 has appointed Inspectors to examine the affairs of the Company, the Murree Brewery Company Limited. On the strength of the Inspector's report the Company presented to the Company Judge a petition under section 38 of the Companies Act for rectification of the register of the members by substituting it is the name of Ganga Saran for that of Grindlays Bank. An application for interim relief under Order 39, Rule 2 and section 151, C.P.C. Alongwith the main petition under section 38 of the Companies Act was also submitted with a prayer that the Grindlays Bank be restrained from exercising rights as a shareholder of the Company till the decision of the petition which application was granted against which the Bank filed an appeal under clause (10) of the Latters Patent. The Bank also, alongwith appeal, filed an application for interim relief that the Company be restrained from holding any general meeting which application was also allowed by a D.B. The other party then moved an application to the Court for calling of the general meeting under sections 76(3) and 79(3) of the Companies Act. The application was referred to a D.B. For hearing. During the pendency of the latter application the parties settled the matter through an agreement, whereby in accordance with the terms of the petition, a meeting of the Company was to be called and to that effect an order was passed by the Court. An application under section 151 read with Order 47, Rule 1 of the C.P.C. Was filed by the other party asking for the review of the order passed by the Court for calling of the meeting of the Company on the ground that the same has been obtained through fraud and misrepresentation and concealment of facts. This application came up for hearing again before the same D.B. One of the Honourable Judges expressed his disinclination to sit on the Bench and consequently that application was heard by a Single Bench considering the same as an application for review and could be heard by a Single Bench. The Honourable Judge reached a conclusion that the order for calling of the meeting was obtained by fraud and thus void and of no effect. Against this order a Letters Patent Appeal was filed. The appeal was heard and it was held that an order which has been passed by a D.B. Can be set aside ever, by a Single Bench after the same has been found to have been obtained through fraud/misrepresentation.
20. By going through the said judgment, the gist of which has been reproduced above, is of no help to the petitioners. The judgment in the said case was delivered even before coming into force of the Constitution of Islamic Republic of Pakistan, 1956 and particularly when the order was reviewed by the same Court under section 151 and Order 47, rule 1 of the C.P.C. And not through any Constitutional provision like the one in hand embodying in it a bar precluding the Court to entertain a writ petition against an order passed by the High Court. The petitioners could have availed the same remedy by having a recourse to file a review petition or by filing an application under section 12(2), C.P.C. Available to the petitioners for challenging the orders obtained from a Court by a party through a collusion, misrepresentation which is also the case of the petitioners. The question involved is not that an order passed by a Court, cannot be reviewed, but the real question, is what procedure to be adopted and which would be one of the two i.e, review or application under section 12(2), P.P.C. In a case reported as Secretary, Ministry of Religious Affairs and others v. S. Abdul Majid 1993 SCMR 1171 the Honourable Supreme Court has held that the provisions of the C.P.C.
Are applicable and a person can competently file an application under section 12(2) in respect of an order passed by the High Court while exercising the writ jurisdiction. In view of the Constitutional provisions providing a bar for filing a writ petition against the issuance of writ to the High Court and the judgments referred to by the learned counsel for the respondents on the point, we hold that this writ petition is not maintainable. As we held that the writ petition is not maintainable, we need not to go into merits of the case or dilate upon other points agitated before us. The learned counsel for the petitioners was asked about filing of the review petition or application under section 12(2), C.P.C. But he was still insisting upon the acceptance of the writ petition on the grounds agitated by him without making any oral or written request for the conversion of the writ petition into such an application, hence that course was also not adopted. Resultantly, this writ petition is dismissed, with no order as to costs.
21. Writ Petition No,610 of 1992 relates to the payment of Rs,1,000 p.m. By the petitioner to Muhammad Nawaz or his legal heirs. According-to the recommendations of the Land Dispute Enquiry Commission, Muhammad Nawaz was held entitled to the payment of Rs,1,000 p.m. Referred to in para. 6 above. The Government of N.-W.F.P. Incorporated the said recommendations in pursuance of Martial Law Regulation 122, in Notification, dated 15-9-1972.
22. It is pertinent to note that Muhammad Nawaz was also receiving an allowance (as termed maintenance allowance, in teleprinter message No,F.G.(G)-SSEC/VII/81-1591, dated 21-12-1981 referred to in para. 8 of the writ petition), at the rate of Rs,1,500 p.m. It was paid to him. Till his demise on 5-1-1977 and its payment was continued to his legal heirs up to 31-12-1981.
23. The legal heirs of Muhammad Nawaz have filed an application to the Local Administration for the compliance/implementation of the order for the payment of Rs,1,000 p.m. As recommended by the Commission and endorsed by the Government. On the basis of aforesaid application a letter was sent on 18-4-1984 from the Government of N.-W.F.P. Home and Tribal Affairs Department addressed to the Commissioner, Malakand Division, Saidu Sharif, Swat whereby instructions were issued for the payment of Rs,1,000 p.m. As recommended by the Commission in lieu of share of Muhammad Nawaz in the immovable property of Ex-Nawab of Dir and to persuade the Ex-Nawab of Dir to pay "this pittance to the unfortunate claimants". On the basis of the afore-mentioned letter the Deputy Commissioner, Dir has directed Assistant Commissioner, Dir vide his letter, dated 14-6- 1984 for the implementation of the decision with regard to the payment of Rs,1,000 p.m. From 15-6- 1972 to June, 1984 and the current amount also be recovered subject to proof if any with the Ex- Nawab with regard to the payment of any amount towards the satisfaction of the afore-quoted amount.
24. The petitioner felt aggrieved of the aforesaid two memos./letters filed a review petition before the Secretary to Government of N.-W.F.P. Home and Tribal Affairs Department for withdrawal/revision of the orders/instructions in the two said memos. The petitioner did not wait for the decision of his review petition, approached this Court by filing a Constitutional petition vide Writ Petition No,320 of 1984 on 22-7-1984 challenging the two letters mentioned above. The ground taken by the petitioner in the said writ petition was that Rs,1,500 p.m. Which have already been paid by the Central Government and the one which has been recommended by the Commission and later on affirmed by the Government through a Notification is the same amount and not a different one. However, the writ petition was dismissed on 20-6-1989 by not affirming the submissions of the petitioner and held that Rs,1,000 p.m. As recommended by the Commission and Rs,1,500 p.m., maintenance allowance which was regularly paid even before the report of the Inquiry Commission are not the same but different amounts.
25. It is to be noted that the review petition was also disposed of on 1-11-1984 with the following observations:- ' "It has been decided that the petitioner may be directed to seek remedy in the competent Court of law if he desires so."
26. After the dismissal of the writ petition, the petitioner challenged the same in the Supreme Court through a petition for leave to appeal which came up for hearing before the Honourable Supreme Court, finally on 24-9-1990, on which date the appeal was allowed and it was directed, in view of the stand taken by the learned counsel for 'the petitioner that the petitioner has not been afforded an opportunity of hearing of the review petition pending before the Home Secretary, that review petition already filed shall be deemed to be pending and shall be disposed of after hearing the parties.
27. In the light of the directions of the Honourable Supreme Court, parties were heard by the Home Secretary, N.-W.F.P. On the review petition and it was dismissed. The Home Secretary while repelling contentions of the learned counsel for the petitioner, held that both the allowances are not one and the same as the one has been fixed in lieu of share ' in immovable property while the other is the maintenance allowance already being paid by the Central Government.
28. It is now this order which has been challenged in the present writ petition. The learned counsel for the petitioner has taken the same stand as already taken in the previous writ petition that both the amounts are one and the same and which has already been paid to the respondents.
29. The respondent, Home Secretary, has filed a detailed parawise comments to the writ petition and in paras. 6 and 7 it has been mentioned, which reads:-- "6. Contention of the petitioner is not correct. In fact the Federal Government had determined, after the deposition of ex-Nawab Dir, Maintenance allowance for the Nawab and his family members.
Out of which an amount of Rs,600 p.m. Was fixed vide Letter No,1859/SC-1/60, dated 22-11-1960 for, late Muhammad Nawaz Khan as his share. It was subsequently raised to Rs,1,500 p.m. Vide Letter No,F.41-FI(SO-I)/63 dated 8-4-1963, which used to be paid to late Muhammad Nawaz Khan regularly, while the said order No,1 under MLR 122 for implementation of the recommendation of Land Dispute Enquiry Commission, was made in 1972. However, Rs,1,000 p.m. As recommended by the Commission to be paid to Muhammad Nawaz Khan in lieu of his share in cash and movable property of his father was never paid to him.
7. Amount of Rs,1,500 to. Muhammad Nawaz Khan as his share out of the maintenance allowance determined by the Federal Government for ex-Nawab and his family, continued to be paid to him till his death, on 5-1-1977 and to his heirs up to 31-12-1981. However, it was discontinued after realization that it was a personal allowance meant to be paid to Muhammad Nawaz Khan during his lifetime only. In this regard Federal Government teleprinter Message No,F.G.(G)/Sec/VII/81-1591, dated 21-12-1981 is annexed as Annexure `A'."
30. The aforesaid facts indicate that the payment of Rs,1,500 p.m. Since the year 1963 which was enhanced. From Rs,600 as fixed in the year 1960, as a pocket money/maintenance allowance was being regularly paid to Muhammad Nawaz Khan sufficiently long before the recommendation of the Commission in the year 1972 and which was also in lieu of the share in the immovable property, as Muhammad Nawaz being a son of the late Nawab was disinherited by him and on his father's death, he received nothing in the immovable property in Dir. However, the Commission has recommended some portion in the property outside Dir, which are situated in Mardan, Peshawar and Lahore and all of them were not endorsed by the Provincial Government as in the case of property in Mardan and he also received nothing in the movable property both cash and kind while his other three brothers were held entitled both to the movable and immovable property worth million of rupees. The petitioners are still insisting that even his nominal amount which is a token of his heirship not be given to him and which was very rightly described in the memo. Dated 18-4- 1984 as "pittance of the unfortunate claimants". The question as to whether both the amounts are the same or different, their inequality, as one is Rs,1,500 p.m. And the. Other is Rs,1,000 p.m. Is by itself sufficient to hold them distinct and different one and not the same. The earlier was paid by the Central Government since the year 1960 as Rs,600 p.m. And then as Rs,1,500 p.m. Since 1963 while the latter was ordered to be paid in the year 1972 and for consideration of his share in the immovable property. In para.6 of the review petition filed before the Secretary to Government of N.- W.F.P. Home and Tribal Affairs Department by the petitioner in a way has considered the two amounts as different by mentioning "it is pertinent to point out that not only Rs,1,000 was being paid to the said Muhammad Nawaz but he was being paid Rs,1,500 p.m. Regularly during his lifetime..:."
Nothing was pointed out to treat both the amounts as one and the same and by mere drawing of inferences it cannot be held as such particularly when the forums below and specifically the Home Secretary, after the remand of the case by the Supreme Court for the decision of the review petition filed by the petitioners, held the same as different. There is nothing to justify interference in the impugned orders in the Constitutional jurisdiction of this Court and resultantly his writ petition is dismissed with no order as to costs.
31. C.M. No,486 of 1991 relates to the property situated in Mardan and which has been recommended by the Commission to be given to Muhammad Nawaz, predecessor-in-interest of be petitioners. Hisamuddin, one of the legal heirs, son of Muhammad Nawaz, claiming to be owner of the said property asked the tenants to pay him the rent instead to respondent No,1 and who (respondent No,1), constrained to file a suit for declaration and permanent injunction claiming to be owner of the property and restraining Hisamuddin to demand rent from the tenants, in the Court of Civil Judge, Mardan. As a contest several issues were framed, one relating to the compromise dated 12-7-1977 on the basis of which Hisamuddin was claiming. To be the owner. The learned trial Court decreed the suit with the same result in appeal and also in revision petition, which Civil Revision was decided on 26-1-1985. The petitioners, who are the other L.Rs, of Muhammad Nawaz have filed the instant application on 23-11-1991 under section 12(2), C.P.C.
Challenging the judgment and decree of this Court passed in revision petition and also that of the Courts below on the grounds of collusion between ,the parties i.e, the plaintiff and defendants by excluding the other .Rs,, the petitioners.
32. The stand of Hisamuddin in his written statement in the trial Court is that he is the owner on the basis of compromise between him and the respondent No,1 and the judgment of this Court reveals that Muhammad Nawaz, predecessor-in-interest of the petitioner was held entitled to the disputed property by the Commission, but the same was not endorsed by the Government of N.-W.F.P. In its notification dated 15th September, 1972 qua the disputed property and which is the determining factor for the title of a person in pursuance of M.L.R. 122 of 1972 and in the absence of which Muhammad Nawaz cannot be held to be owner of the property. This position even today could not have been controverted before us. Moreover, the petition has been filed after the lapse of about seven years, long after the period of limitation and it has not been mentioned specifically that on what dace or time the petitioner got the knowledge of the passing of the decree. In addition, the petitioners are brothers and sisters of Hisamuddin, who was a party in the suit who contested it.
This application has got no force and is dismissed alongwith C.Ms.