SHAH IQBAL Versus STATE
This civil appeal arises from a dispute regarding the allotment of agricultural land measuring 91 kanals and 11 marlas in Tehsil Chunian, District Lahore, involving competing claims of inheritance, consolidation proceedings, and subsequent allotments by settlement authorities. The core legal question concerned whether the High Court committed a factual error apparent on the face of the record by observing in its judgment that a necessary party, Mst. Mehmoodi Begum, had not been impleaded or claimed relief against, despite being formally added as a co-respondent during the writ proceedings, thereby prejudicing the scope of the remand order. The Supreme Court of Pakistan held that the High Court's observation was indeed factually incorrect and partially negated the remand order. Consequently, the Court allowed the appeal, maintaining the order of remand while clarifying that the earlier order of the Chief Settlement Commissioner in favour of Mst. Mehmoodi Begum would not remain protected from re-examination, and directed that she be included as a party in the fresh proceedings before the Chief Settlement Commissioner for a comprehensive determination.
- Does an observation by the High Court that a co-respondent was not impleaded constitute an error apparent on the face of the record when records show the party was formally added?
- Can a remand order by the High Court operate against a party who was duly impleaded as a co-respondent in the writ petition?
- Whether settlement authorities must re-examine claims in their entirety when a remand order affects the underlying allotment rights of all contesting parties?
1. MUHAMMAD AFZAL CHEEMA, J . The dispute in this civil appeal relates to allotment of agricultural land measuring 91 kanals and 11 marlas in village Chakkokey, Tehsil Chunian, District Lahore which was proposed in the first instance in the name of Mst. Rehman appellant herein on 12‑2‑60 on the basis of the claim of her mother Mihali widow of Imam Khan. One Fajre Khan a reversioner of Imam Khan filed a separate claim for the same land for Chak No. 44, Tehsil Chunian. Two separate mutations of the inheritance of Mst. Nihali, one in favour of the appellant and the other in favour of Fajre Khan were sanctioned which were later cancelled but ultimately the mutation in favour of the appellant was restored on 29‑3‑63. In the meantime, however, consolidation proceedings had started in the village and the land proposed in the name of the appellant on being treated as State land was allotted to one Mst. Ejaz Fatima on 24‑7‑62, on the transfer of her claim to this village, who in turn sold the land to respondents 2 to 7. This led to litigation between the parties. Mst. Mehmoodi Begum respondent No. 1 herein also joined issues with them as a sitting allottee who was ultimately held by the Chief Settlement Commissioner as the senior allottee with a preferential right. Accordingly she was allotted 43 kanals and 16 marlas while the balance of about 48 kanals was allotted to respondents Subhan Khan etc. This order of the Chief Settlement Commissioner dated 28‑1‑64 was passed in second revision during the pendency of write petition filed by Rehman Begum appellant herein in which she had not impleaded Mst. Mehmoodi Begum presumably for the reason that at that time there was no order in her favour. However learning about the acceptance of Mehmoodi Begum's revision petition by the Chief Settlement Commissioner the appellant impleaded her as a co‑respondent in the writ petition with the permission of the Court whereupon notice was also issued to Mehmoodi Begum.
2. It appears that while impleading Mst. Mehmoodi Begum as a correspondent the appellant had not specifically prayed for quashing the order dated 28‑1‑64 made in the latter's favour. The learned Judges while disposing of the writ petition and remanding the case for fresh decision vide impugned judgment dated 1‑11‑68 made the following observation in para. 16 thereof:‑
3. "It may be clarified at the very outset that the present petitioner Mst. Rehman Begum has not claimed any relief in the petition filed by her against Mst. Mehmoodi Begum nor has she been made a party to this case. The orders passed by us therefore shall not affect the rights or allotment of Mst. Mehmoodi Begum, at all."
4. Since Mehmoodi Begum stood already impleaded vide High Court's order dated 30‑7‑64, this observation of the learned Judges was not only factually incorrect but also rendered nugatory at least partially, the order of remand inasmuch as about half of the land in question stood already allotted In favour of Mehmoodi Begum. It was on account of this error apparent on the face of the proceedings that leave to appeal was granted vide this Court's order dated 23‑10‑69.
5. It has been frankly conceded by the learned counsel for respondents 1 to 7 that on an application submitted by the appellant herein that Mehmoodi Begum was impleaded by the High Court as co‑respondent in the writ petition, that notice was also issued to her in those proceedings and that the order of remand equally operated against her as well as respondents 2 to 7, this concession has clinched the issue. Since leave was not granted to consider' the validity of the remand order but was confined only to the consider ation of the error apparent on the face of the proceedings referred to earlier learned counsel for the appellant cannot be permitted to challenge that part of the impugned judgment. Even otherwise unless the case goes back to the Settlement authorities for fresh determination of the entitlement and relative merit of the respective claims of the parties the appellant does not stand to gain by this wild goose chase. On being explained the position learned counsel for the appellant has felt satisfied and does not press the point.
6. In view of the above position we allow the appeal, maintain the order of remand with the clarification that the order of the Chief Settlement Commissioner dated 28‑1‑64 made in favour of Mst. Mehmoodi Begum shall no longer be deemed to be in the field and that she will also be a party to the proceedings before the Chief Settlement Commissioner who shall hear the case in its entirety so as to eliminate further appeals and revisions. There shall, however, be no order as to costs.
7. Appeal allowed.