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Petitioner: ABDUL MAJID and others VS Respondent: ADDITIONAL SETTLEMENT COMMISSIONER and JUDGMENT
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan Title:ABDUL MAJID and others vs ADDITIONAL SETTLEMENT COMMISSIONER and
JUDGMENT
Reported As: 1993 CLC 665 Result: Order accordingly Judgment JUDGMENT ' By this judgment I propose to dispose of W.P.No, 31-R/1986, W.P.No, 111-R/1986, W.P.No,213-R/1986, W.P.No, 214-R/1986 and W.P.No, 215R/1986, as the questions of fact and law involved in all these petitions are one and the same and also as the main order under challenge is the order dated 29- 12-1985 passed by the Additional Commissioner/Chief Settlement Commissioner. It may be added that though `mukhbari' application, subject-matter of W.P.No, 215-R/1986 was disposed of by the Additional Commissioner (Rev.)/S.C.(L)/Chief Settlement Commissioner, Gujranwala Division, Gujranwala, vide order dated 29-12-1985, impugned in the petition, but this order is also based on the order dated 29-12-1985 impugned in other writ petitions. This petition, therefore, is also being disposed of alongwith other petitions. 2. There are four sets of parties in these petitions Abdul Majid, etc., the petitioners in W.P.No, 31- R/1986 are statedly the legal heirs of Mst. Chand Bibi daughter of Alaf Khan, allottee. Muhammad Siddique and others, the petitioners are one set of informers who statedly submitted application under section 10/11 of the Act laying information against the allotment of land obtained in the name of Chando in various villages. The second set of informers comprises of Muhammad Jamil and others, petitioners in W.P.No, 213-R/1986. The fourth set comprises of the Additional Settlement Commissioner/Settlement Commissioner (Land) who passed the impugned orders disposing of these `mukhbarf applications. 3. The relevant facts are that Abdul Majid, petitioner claiming to be the son of Chand Bibi filed a Claim Form No, 29223, in the name of Chand Bibi widow of Amrao Khan in respect of land situated in village Ferozepur Jirka, District Gurgaon (India) and another Claim Form No, 14429 was filed in the
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name of Chand Bibi by Kamal Khan acting as her `Mukhtar' in respect of land abandoned in India by Chando widow of Amrao Khan. The rural claim was verified for 6060 P.I. Units which on re- calculation were increased to 7474 P.I. Units. It appears that Revenue Officer Narowal Tehsil passed an order dated 5-10-1957 deciding Mutation No, 5 of refugees of village Loban H.B.No, 246, Tehsil Narowal relating to the inheritance of Mst. Chando. This order was appealed against by Mst. Chand Bibi daughter of Alaf Khan against Jaggu and Rahim Bux presumably claiming to be the sole heir of Mst. Chando. This appeal was accepted by D.R.C. (Land), Narowal vide order dated 14-4-1958 with the following observations:-- "There is nothing on record to prove Jaggu and Rahim Bux as the grandsons of Alaf Khan whereas Mst. Chand Bibi the appellant is proved to be the only daughter of Alaf Khan. None of the two respondents has come to Pakistan. I am therefore of the opinion that the appellant would inherit the entire property in question. The respondents if any can claim their share if and when they happen to come to Pakistan at any time and become the citizens of this country. I, therefore, accept the appeal, set aside the order under appeal and direct that the mutation be given effect to as observed above." ' The claini with respect to the urban land abandoned in India was verified by the Claims Officer (Land), Lahore, for 17 Bighas and 17 Biswas of agricultural land within the urban limits of Ferozepur Jhirka, H.B.No, 73 of Tehsil Ferozepur Jhirka, District Gurgaon and the entire land was verified in the name of Chand Bibi as sole heir of Amrao Khan deceased. Abdul Majeed and others claiming to be the legal representatives of Chand Bibi obtained allotment of land in various villages. 4. One Malik Muhammad Hussain filed `Mukhbari' application under section 10/11 of the Displaced Persons (Land Settlement) Act, 1958 on 14-9-1967 which was disposed of by Sardar Hidayat Ullah Khan Mokal, Settlement Commissioner (L) vide order dated 1-8-1970, holding that Chand Bibi was entitled to receive 1/5th share from the inheritance of Amrao Khan and as such the allotments obtained in excess of the said 1/5th share were cancelled and the excess land was resumed. Abdul Majeed, etc. Challenged this order in the High Court by filing Settlement Revision No, 203/70. In the year 1978, Muhammad Siddique and others, one set of informers, got themselves impleaded in the Settlement Revision on the plea that they had filed `Mukhbari' application dated 30-3-1974 against the claim of Chand Bibi and allotments obtained by her legal representatives. In the proceedings of `Mukhbari' application, Muhammad Siddique submitted another application on 13-6-1974 saying that Chand Bibi has died and Abdul Majid her heir has secured allotment against her claim in certain other villages as well and that all such allotments of urban and rural land having been obtained fraudulently are liable to be cancelled. The proceedings held on this `Mukhbari' application were stayed on 18-10-1976 as stay order dated 29-9-1970 passed by the High Court in Settlement Revision No, 203/70 was produced. The Settlement Revision was accepted by this Court vide order dated 27-1-1979 and the case was remanded for fresh decision. 5. During the post-remand proceedings Abdul Majid, etc. Raised objection to the maintainability of the petition filed by Muhammad Siddique and otheRs, It is also pertinent to note here that Malik Muhammad Hussain who had submitted `Mukhbari' application on 14-9-1967 on which order dated 1-8-1970 was passed by thy- then Settlement Commissioner, (L) under section 10/11 of the Act and out of which Settlement Revision No, 203/70 had arisen, did not prosecute the proceedings any further and in his place Malik Muhammad Siddique, etc., the other set of `Mukhbars' pursued the proceedings and prosecuted the `Mukhbari' application. The learned Additional Commissioner exercising powers of Chief Settlement Commissioner passed an order dated 4-6-1981 to the effect that as the matter was already pending with him in view of remand order dated 27-1-1979 of the High Court, the second `Mukhbari' application of Muhammad Siddique and others was not maintainable and as such the same be filed. This order was challenged by Muhammad Siddique and others by filing W.P.No, 23-R/82, and the same was dismissed by learned Judge of this Court
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vide order dated 16-5-1982. Muhammad Siddique and others, petitioneri challenged this order before the Supreme Court through Civil Petition for Special Leave to Appeal No, 674 of 1982. They also filed Civil Misc. Petition No, 567/82 seeking stay of the proceedings being held on another `Mukhbari' application filed by the third set of `Mukhbars' i,e, Muhammad Jamil and otheRs, This application was disposed of with the following order:-- "Heard. The petitioner is permitted to lead evidence before the authority concerned with regard to the allotment against which he made the Mukhbari. This is subject to all just exceptions and without prejudice to the right of any other person including the other Mukhbars and the allottees. The remaining prayer in the petition is refused." 6. Now the proceeding held on the Mukhbari application of Muhammad Jamil and others be noted so as to complete the factual history of the case. This application was dismissed by the Notified Officer vide order dated 22-6-1981 which order was challenged in this Court by filing Writ Petition No, 531-R/1981. This petition was accepted and the matter was remanded vide order dated 2-2- 1982 for further proceedings to the Notified Officer, already seized of the Mukhbari application dated 15-8-1967 filed by Malik Muhammad Hussain. 7. The Additional Commissioner (Rev.) with the powers of Chief Settlement Commissioner held further proceedings in the `Mukhbari' applications and after recording the necessary evidence and perusal of the record disposed of the same vide order dated 29-12-1985, impugned in these petitions. The findings recorded in respect of each of the parties are as under:- Abdul Majeed and otheRs, L.Rs of Chand Bibi 8. They are entitled to retain land to the extent of 1/5th share of Chand Bibi i,e, to the extent of 1212 Units of rural land and 170 Units of Urban' land only and the remaining areas so got allotted was cancelled and resumed being in excess of their entitlement. It was further held that as the allotment of Kot Lakha Singh is prior in date, therefore, the allotment to the extent of 1212 Units out of total allotment of 4192 Units shall remain intact, but the land already sold to bona fide vendees to the said extent is to remain intact so that the innocent vendees may not suffer. Similarly, the urban allotment to the extent of 170 PIUs out of 230 allotted units was allowed to remain intact in village Amar Sindhu (Urban), Lahore. The remaining land so held in excess of their entitlement in villages Kot Lakha Singh, Bhedankhani, Mull Bajwa, Siraj, Khanowal, Lohan, Pakhoki, Ghusa, Narowal Khas, Negwal (Teh. Shakargarh), Marlwar, Mahmood Booti, Amar Sidhu (Teh. Lahore), Chakwal and Bhera (Teh. Bhalwal), as detailed in the order were cancelled. It was further observed that as the vendees purchased the land during the status quo orders, at their own risk, they are not entitled to any relief under the law. Muhammad Jamil and others 9. The `Mukhbari' application filed by them was held to be bogus one. The plea that their case has also been remanded by the High Court vide judgment dated 2-2-1982 passed in W.P:No, 531/R/81, was noticed and it was observed that it has been clarified in the judgment itself that Settlement Commissioner will not be debarred from rejecting the `Mukhbari' application on grounds permissible under law. The Njtified Officer holding that `Mukhbari' application was not maintainable in 'aw being bogus one rejected the same. Muhammad Siddique and others: ' After cancelling and resuming the land from Abdul Majid and others, the L.Rs, of Chand Bibi, The said land be allotted to Muhammad Siddique and others, informers in view of section 14(1-A) of the Displaced Persons (Land Settlement) Act, 1958, because the area in dispute has been cancelled on their Mukhbari petition. 10. The Mukhbari application of Muhammad Jamil and others was against many persons. This application in so far as it related to land subject-matter of other Mukhbari applications was rejected vide order dated 29-121985 impugned in W.P. No, 213-R/1986 but so far as it related to
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Hashmat and others was rejected vide order dated 29-12-1985 and despite the fact that allotment obtained by Hashmat and others was cancelled still the Mukhbari application was dismissed being bogus one. This order was assailed in W.P. No, 215-R/1986. 11. The stage is now set to examine the pleas of the parties on merit. Muhammad Siddique. Etc. (W.P. No, 111-R/86) Mukhbars in their writ petition claimed that the Additional Commissioner/Chief Settlement Commissioner has acted illegally in holding that heirs of Abdul Majid or Chand Bibi were entitled to receive 1/5th share from the inheritance of Chando widow of Amrao Khan. In fact they could not claim the land abandoned by Amrao statedly owned by him in rural and urban area of Ferozepur Jucka as Mst. Chando admittedly died in India after partition and mutation of inheritance was sanctioned on 22-9-1947 and the said Chando stayed behind in India, so no legal representative could file any claim in Pakistan to receive any share and that the conduct of respondents 2 to 5 also disentitles them from any equitable relief as despite the status quo order issued by this Court in Settlement Revision they sold the land to different vendees and that Mst. Chand Bibi on the one side has been shown to have died in May, 1967 but in Mutations Nos, 7553, 7436-M, 7429-M, 7410-09 pertaining to Bhalwal, District Sargodha, decided in 1977-78, Chand Bibi is shown to have sold the land herself. Again in Mutation No, 1120 sanctioned on 25-4-1974 in a statement the position taken was that Mst. Chand was still alive and that Jaggu and Rahim co- sharers of Mst. Chand have gone back to India. It was further asserted that they could not have filed a claim in respect of land as legal heirs of Amrao Khan. Muhammad Siddique and others therefore, seek quashment of the impugned judgment even to the extent that it allowed retention of 1/5th share of the allotted land by Abdul Majid and otheRs, They further seek a direction regarding resumption of the said land and allotment of same to them as informer. The petitioners also support the impugned order dated 29-12-1985 to the extent of Muhammad Jamil and others and the order dated 29-12-1985 impugned in W.P. No, 215-R/86 fully for the reasons included in the two ordeRs, It was argued that the Mukhbari application statedly filed by Muhammad Jamil and others is bogus one and was so held rightly. Muhammad Jamil. Etc. (W.P. No, 213-R/1986. W.P. NO, 214-R/1986 and W.P. No, 215-R/1986) ' They seek modification of the two orders in the manner that the entire land in dispute be resumed by cancelling the allotments obtained by Abdul Majid and others and the same be allotted to them treating them as the only informers in the field. They claim that petition for leave to appeal filed by Muhammad Siddique and others against the judgment dated 16-5-1982 of the High Court dismissing the writ petition, was got dismissed as infructuous vide order dated 19th July, 1988 of the Supreme Court with the result that the order of the High Court dated 16-5-1982 dismissing the writ petition holds the field and consequently the order dated 4-6-1981 of the Additional Settlement Commissioner dismissing Mukhbari application of Muhammad Siddique and others not only holds the field but has also become final. They oppose the writ petition of Abdul Majid, etc. As well on the grounds urged by Muhammad Siddique and others in their petition. They also seek cancellation of alleged excess land in the Khata of Sadaqat All Khan and allotment of land resumed from Jasmal and otheRs, ' I have considered the respective submissions of the parties and have also gone through the documents placed on record of these petitions. The merits of each set of petitioners may now be examined. W.P. No, 111-R/1986 ' The undeniable fact emerging from the record is that the proceedings were commenced against Abdul Majeed and others in Mukhbari application filed on 14-9-1967 by Muhammad Hussain. This application succeeded vide order dated 1-8-1970 of the then Settlement Officer exercising powers of Chief Settlement Commissioner, which order was then set aside by High Court in Settlement Revision No, 203/70 and the matter was remanded by the High Court for fresh decision vide
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judgment dated 27-1-1979. Malik Muhammad Hussain abandoned these proceedings which were then carried on by Muhammad Siddique, etc., who got themselves impleaded as a party in the Settlement Revision by moving an application for the said purpose in the year 1978, on the plea that they too had filed Mukhbari application against these very allotments. This Mukhbari application of Muhammad Siddique and others was admittedly filed on 30-3-1974 i,e, three years after the application dated 14-9-1967 of Malik Muhammad Hussain. Thus Muhammad Siddique and others cannot claim status of informers though they had been prosecuting the post-remand proceedings held since remand order dated 27-1-1979 of the High Court while Malik Muhammad Hussain had abandoned these proceedings. It was for this reason that their Mukhbari application was dismissed vide order dated 4-6-1981 by the Notified Officer and the said order holds the field in view of dismissal of the writ petition filed by them by the High Court vide order dated 16-5-1982. Though they filed a petition for special leave to appeal before the Supreme Court assailing the order of dismissal of writ petition, but that appeal was then got dismissed on the representation that the same has been rendered infructuous. During the pendency of the petition for special leave to appeal, on their application to stay the proceedings being held by Notified Officer on the application of Muhammad Jamil and in pursuance to the remand order dated 27-1-1979 and on the Mukhbari application of Muhammad Hussain, they were allowed to participate in the proceedings and to lead evidence but this was subject to all just exceptions and without prejudice to the rights of any person including other Mukhbars and the allottees. The opportunity to raise objection did not accrue to the Mukhbars and the allottees as the appeal was got dismissed as infructuous. It will be noticed that the petition for special leave to appeal had not been rendered infructuous as far as Muhammad Siddique and others were concerned merely for the reason that the Notified Officer had directed that after cancelling and resuming the land to the extent ordered the same be allotted to Muhammad Siddique, etc., vide order dated 29-12-1985 as the said order was under challenge in these writ petitions and secondly Muhammad Siddique stood ousted from the arena on account of dismissal of their Mukhbari application. The Notified Officer failed to notice this aspect of the matter and as such impugned order in so far as it recognises Muhammad Siddique and others as informers and directs allotment of the cancelled and resumed land in their favour is illegal, without lawful authority. Even on other score they could not claim status of an informer as their petition was incompetent having been filed against Mst. Chand Bibi, a dead person and the legal representatives of Chand Bibi, namely Abdul Majid, etc., were impleaded in these proceedings much after the repeal of Displaced Persons (Land Settlement) Act, 1958. It may be noted that plea of the learned counsel for Muhammad Siddique and others that legal representatives of Chand Bibi should be considered to have been impleaded vide application dated 13-6-1974, has no merit. The reference to this application (Annexure C/1 of W.P.No, 111/86) would show that the said application was moved for placing a copy of Register RL-II on record and the averments contained were to the effect that Mst. Chand Bibi has died and Abdul Majid son of Kanwal Bibi d/o Amir Caste Meo, resident of Kot Lakha Singh Wala has obtained allotment in different villages i,e, Amar Sandhu, Mehmood Booti, Mull Wala and other villages of District Sialkot, showing bogus heirs against Claim Form No, 29223, respecting land abandoned in Ferozepur Jhirka District, Ghargaun. This application cannot be treated as an application for impleading legal heirs of deceased Chand Bibi in the pending proceedings. It has been held repeatedly by this Court that Mukhbari application against a dead person is incompetent and legal heirs sought to be made party to the proceedings by moving application long after the repeal of the Displaced Persons (Land Settlement) Act, 1958 is not to be allowed to the prejudice of such legal heiRs, On this very score as well as for the reason that Mukhbari application against the allotments having been filed in 1967, the second application dated 30-3-1974 of these petitioners was not competent, the petition of Muhammad Siddique and others (W.P. No, 23/R/82) was dismissed by a learned Judge
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of this Court vide judgment dated 16-5-1982. (See also 1986 M LD 552, 1983 CLC 2459 and 1986 M LD 2435). Muhammad Siddique, etc., as such cannot seek the status of informer and are not entitled to any allotment in the said capacity. The impugned order allotting land to them cannot, therefore, be sustained. The petition filed by them is without merit and is dismissed. 12. Now the petitions (W.P.No, 213-R/1986, W.P.No, 214-R/1986 and W.P.No, 215-R/1986) of Muhammad Jamil and others, another set of Mukhbars may be taken up. The Mukhbari application filed by them has been held to be bogus one. This petition, according to the version of these Mukhbars, was filed on 30-3-1974 in the Court of Deputy Commissioner, Gujranwala admittedly against Mst. Chando, a dead person. They did not implead the legal heirs of Mst. Chando admittedly before the repeal of the Displaced Persons (Land Settlement) Act. The impleadment of the legal heirs many years after the repeal of the law, is inconsequential. For this reason alone the application filed by them being incompetent could not be proceeded with and as such no jurisdiction existed in the Notified Officer to cancel the allotments of land obtained by the heirs of deceased claimant. The other reasons recorded'by the Notified Officer for holding this Mukhbari application as bogus, are that this application was statedly filed in Gujranwala when the allotments involved were obtained in different districts, rather in different Provinces, Punjab, Sindh and N.-W.F.P. The Deputy Commissioner, Gujranwala did not have the jurisdiction to entertain such a petition as it was only the Chief Settlement Commissioner who could entertain such a petition; that so many petitioners have been mentioned in this petition, but in the proceedings sheet while noting the presence of parties, the words used are ' L t.o l.N " which is indicative of the fact that petition on which the proceedings were initiated was only one and single. This fact further stands supported from the entries of the Fard Talbana as well as Vakalatnama as the title of the case noted therein is "Zubaida Begum v. Hashmal etc." which cannot admittedly be the title of the petition as we find it presently. It will be noted that allotment in the name of Hashmal, etc. And two others is subject- matter of other petition i,e, Petition No, 215/R/86 and that order was also passed on the basis of this very Mukhbari application. The Notified Officer on the basis of these features emerging from the record, held the view that the Mukhbari petition was fabricated and Fard Talbana and Vakalatnama were removed from some other case and were inserted in this case and that perusal of the Mukhbari application itself shows that the same is bogus one. It was observed that how it could be possible that the petitioners pertaining to different districts managed to file a joint petition in District Gujranwala. The thumb-impression or signatures of most of the petitioners are not to be found on the petition, although their names have been given in the petition. Similarly, no Power of Attorneys executed by the petitioners as mentioned in the petition, have been attached. The Notified Officer further observed that there is another interesting thing of this case to be noted that although the proceedings are shown to have been continued from 1974 on this petition, but till 1979 the petitioners did not bother to furnish any proof in support of their alleged Mukhbari petition. He was further of the view that this petition was prepared and ante-dated somewhere in 1979 and it was got transferred to Lahore and later on it was linked with the case of Muhammad Siddique, etc. Mentioned above. Muhammad Siddique, etc., also produced a report of Ahlmad of D.C. Office, Gujranwala according to which the said Mukhbari application does not stand entered in the relevant Register. This report was not challenged in the petition as filed, but later on, an application was submitted by Muhammad Hamid in their petition seeking permission to produce certified copy of the entry of relevant register regarding institution of Mukhbari application in the D.C. Office, Gujranwala. This copy was obtained on 3rd of March, 1988. The authenticity and genuineness of this copy was challenged by the opposite parties on the plea that this entry must have been manipulated later on, otherwise, Muhammad Jamil and others would have produced this register before the Notified Officer in order to controvert the report of Ahlmad of D.C. Office produced during the proceedings. There is much weight in this submission. The report of the Ahlmad produced
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during the proceedings was neither challenged then nor the said report was controverted in the writ petition filed in 1986. The copy procured in the year 1988 as such cannot be allowed to be relied upon in the circumstances noted above. The perusal of the order sheet shows that one Mukhbari application was presented to D.C./Additional Settlement Commissioner, Gujranwala on 30-3-1974 on which office report was called for on 16th of May, 1974. On 16th May, 1974, the order passed was that "Case called. Out. Petitioner is present who is directed to file copy of RL-II by the next date of hearing and matter is adjourned to 27-6-1974". The appearance of single petitioner was noted also for the next two dates i,e, 27-6-1974 and 31-6-1974 and thereafter on various dates none appeared when ultimately the application was consigned to record for want of appearance and…
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