Mst. REHMAT BIBI And Others vs PUNNU KHAN And Other

ORDER

1. ANWARUL HAQ, C.J.--By the order of this Court, dated the 9th of October, 1974, the hearing of this petition for special leave to appeal was adjourned to await the outcome of the review petition filed by the petitioners in the High Court. It appears that even after the lapse of nearly six years the review petition has not yet been disposed of, or, at any rate, the learned counsel for the petitioners is not aware of its result. In the circumstances, we have decided to proceed with the hearing of this petition on merits.

2. The relevant facts are that the evacuee land in dispute, measuring 48 Kanals 17 Marlas and 6 Sarsahis situate in village Meteki Mehtab R.I in Tehsil Depalpur of district Sahiwal, was allotted to petitioners 1 and 2, namely, Rehmat Bibi and Safia Begum on the 11th of June, 1964. They sold the same to petitioners 3, 4 and 5. On 3-11-1967, respondent Punnu Khan preferred an appeal against this allotment on the ground that although he was the sitting allottee of the Chak, and his units were still pending satisfaction, he was not considered for this land and instead the same was allotted to Mst. Rehmat Bibi and Mat. Safia Begum.

3. This appeal was allowed by the learned Additional Settlement Commissioner by his order, dated the 19th of December, 1967, in spite of the fact that the petitioners had contended that it was barred by limitation, having been filed after more than three years of the initial order of allotment in favour of the petitioners. This officer found that two out of the four Khasra numbers in dispute could not be allotted, at all, to the petitioners, as Killa No. 26/2 of Square No. 83 was Ghair. Mumkin Hindu graveyard, and Killa No. 18 of Square No. 98 was Muslim property. He expressed the view that this glaring irregularity had to be rectified. He, therefore, set aside the allotment in favour of the petitioners, and directed that the matter be decided afresh between the contending parties with regard to the remaining two Khasra numbers. He did not express any opinion as to the respective merits of the petitioners and the respondent.

4. Aggrieved by this order, the petitioners preferred a revision petition, which was dismissed by the learned Settlement Commissioner by his order, dated the 15th of March, 1968. The petitioners challenged this order by filing a writ petition in the High Court, which was dismissed by a learned Judge on the 12th of December, 1973. The petitioners later filed a review petition, which has apparently remained pending since the 21st of December, 1973.

5. Leave to appeal is sought on the ground that as section 5 of the Limitation Act did not apply to the proceedings under the Settlement Law, there was no power in the Additional Settlement Commissioner to condone the delay, and interfere with the petitioners allotment after the lapse of more than three years. The learned counsel submits that the Additional Settlement Commissioner is in error in observing that the allotment order was made in the absence of the respondent, as he has placed on the record an affidavit, dated the 21st of February, 1974, sworn by Niaz Ahmad, Mukhtar of the petitioners, to the effect that the respondent was present at the time of the allotment in his capacity as Lamberdar. Mr. Abdur Rashid also draws our attention to the parawise comments furnished by the Deputy Settlement Commissioner in the High Court in which it was stated, inter alia that no other sitting allottee of the village had any pending units requiring satisfaction. On the basis of these comments, the learned counsel submits that the respondent had no locus standi whatsoever to challenge the allotment obtained by the petitioners.

6. We find that in the High Court the learned Judge has placed reliance on a number of precedent cases, including Allah Dino v. Faqir Muhammad and another PLD 1969 SC 582, for the proposition that if an impugned order has been passed without hearing and notice to a party whose presence is otherwise necessary before the authorities concerned, then the order will be a nullity in the eye of law, and no question of limitation would arise. Mr. Abdur Rashid was not in a position to controvert this proposition of law by reference to any authority or pronouncement of this Court or even of the High Court. It would appear, therefore, that the Court below were justified in deciding the question of limitation in favour of the respondent. The affidavit filed in this Court is an after-thought.

7. It will be seen that the learned Additional Settlement Commissioner has not decided the dispute between the parties on merits, but has directed that the respective claims of the parties be examined afresh after excluding two Khasra numbers, which could not be allotted as available evacuee property. We do not see on what ground any exception can be taken to this order, which aims to secure a proper adjudication of the respective entitlements of the parties.

8. In the circumstances, the petition fails and is hereby dismissed.