MUHAMMAD BIBI Versus ADDITIONAL SETTLEMENT COMMISSIONER KHAIRPUR

This is an application seeking by way of interim relief appointment of receiver of the land in dispute and temporary injunction to restrain the third respondent from transferring the land pending the decision of this constitutional petition.

2. By this petition the petitioner challenges the validity of the orders passed by various settlement officers rejecting the claim of the petitioner, to the transfer of agriculture lands situated at Tando Mir Ali, Taluka Mir Wah in the District of Khairpur, which were settled in lieu of claim in favour of Chiraghuddin. The dispute between the petitioner and the third respondent is with regard to the identity of the claimant in whose favour the disputed lands were settled. That is, if the claimant/displaced person was Chiraghdin son of Leekal then the petitioner would be entitled to the transfer of the lands whereas if the claimant displaced person was Chiraghdiny son of Saigol or Saikal, then the third respondent would be entitled to the transfer of the lands. To be precise, the controversy between the parties concerns the correct name of the father of the displaced person/claimant.

3. Now to resume the narration of facts which are disputed, the contention of the petitioner is that Chiraghdin came over to Pakistan and died' here. The respondent on the other hand alleges that Chiraghdin never came to Pakistan but had died in India. Be that as it may, on 11-4-1957, the claim was verified in the name of Chiraghdin and lands were settled in has name in 1960. The case of the petitioner is that, on his death Chiraghdin left hire, surviving a widow Mst. Fazal Bibi and a daughter, the present petitioner. Mst. Fazal Bibi died subsequently and thus the petitioner is the only surviving legal heir of Chiraghdin son of Leekal. It is further alleged, by then petitioner that the third respondent was an employee of the deceased and thus taking undue advantage of the ignorance of the petitioner and her mother, fraudulently represented before the authorities that the Fard-i-Haqiat was of Chiraghdin son of Saigol, whose grandson he claimed to be. Thus he obtained the transfer of the lands in his own name. It is then further alleged that the allotment of the lands was made without notice to the petitioner, and that when she and her mother filed their claim in the year 1962 they learnt of the fraud committed by the third respondent. They, then, filed an application before the Mukhtiarkar, Mir Wah, who was the Assistant Rehabilitation Commissioner. The matter was also referred to Enforcement Police, but the report of the enquiry conducted by them was untraceable on record. Eventually the Additional Settlement Commissioner, Khairpur, dismissed the application of the petitioner by his order dated 21-10-1970, inter alia, on the ground that the claim of the third respondent having become final by order of Mukhtiarkar, it could not be reopened. The petitioner, then took the matter before the civil Court but the plaint was rejected on the view that the suit was barred under the provisions of Displaced Persons (Land Settlement) Act, 1958. An appeal filed against the order was also dismissed. Accordingly, the petitioner filed another application before the Additional Settlement Commissioner (Lands). Khairpur, but this application was also dismissed by order dated 18-6-1975 as barred by res judicata. The petitioner therefore challenges the above said orders of the three settlement officers by this constitutional petition.

4. By the present application the petitioner seeks an order for' appointment of Receiver to take over and manage the disputed lands and for, an injunction restraining the third respondent from transferring the lands.

5. Mr. Sadik, the learned counsel for the petitioner, in support of the prayer for the above said interim relief, submitted that the order of the Additional Settlement Commissioner (Annexure D) shows that the Central Record Room, Lahore in its report dated 13-6-1975 certified that the Fard-i-Haqiat was issued in the name of Chiraghdin sin of Leekal. Accor dingly, he contends that the petitioner has a strong prima facie case and if' the third respondent, pending the decision of this petition appropriates the produce of the lands or alienates the same, the petitioner shall suffer irreparable injury. On the other hand, Mr. S. Zaheer Husain, learned, counsel for the third respondent, vehemently contended that the petitioner bas no case to claim the lands. He has supported the impugned orders by' submitting that essentially the dispute raised by the petitioner pertains to inheritance of deceased Chiraghdin. It is further argued by the learned counsel for the third respondent that the proper remedy for the petitioner was under the Registration of Claims Act, 1957 and not an application for cancellation of allotment under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958. He relies on 1971 Law Notes (Lahore) 741 in support of the contention that disputes about inheritance are not covered by the above said provisions of the Displaced Persons (Land Settlement) Act, 1958. The counsel further argues that the third respondent has remained in peaceful possession of the lands for the last 18 years and has invested enormous amount on the reclamation of the lands. Therefore, he argues, it would not be just and proper to deprive the respondent of the fruits of this labour.

6. Now there are two prayers in this application. I shall first take up the consideration of the question of the receivership. The object for the interference by the Court in a case, by appointment of receiver by inter locutory order is to prevent the ends of justice from being defeated and therefore in taking action in that direction the Court has to see that the rights of the parties are not jeopardised. The rule in such a case is that a receiver is appointed whenever it appears to the Court to be just and convenient to do so. The object and purpose of appointment of a receiver can generally be stated to be the preservation of the subject-matter of the litigation pending judicial determination of the rights of the parties thereto. Besides it is not sufficient for the applicant to show prima facie case but further it must be shown that the property in the hands of the opposite-party is in danger, of being wasted.

7. It will be premature at this stage to decide the contentions of law raised by the counsel on behalf of the parties. But assuming the petitioner has raised serious questions to be adjudicated at the hearing of the petition, it is quite obvious that no allegation of waste or malversation has been made against the respondent in possession. There is no denying of the fact that the respondent has remained in possession of the lands for long 18 years. The only ground urged is that it will be difficult to recover the profits of the property in the event of success in this petition. But in my opinion this can hardly be a ground for dispossessing the respondent of the lands in dispute. I am, therefore, not pursuaded to appoint a receiver to take over the lands and would reject the prayer.

8. Turning to the prayer regarding injunction, I find the case of the petitioner on a much sounder basis. The injunction is sought to restrain the third respondent from transferring or alienating the lands in any manner. I the injunction as prayed is not issued, obviously, the petitioner is exposed to a grave injury, for, if pending the disposal of the main petition, the third respondent disposes of the property, the object of the petition may be frustrated or it may result in multiplicity of proceedings. I am quite clearly of the view, therefore, that this is a fit case for an injunction.

9. In the result I would dismiss the application with regard to the prayer of receivership but grant the prayer of the petitioner for injunction. The third respondent be restrained from transferring the lands in dispute in this petition in any manner until the disposal thereof.

10. In the circumstances of the case I would make no order as to costs.

S. A. H Orders accordingly.