DILDAR KHAN and 5 others vs HAMID ALI KHAN and 22 others

1. ' SALEEM AKHTAR, J---The appellants by the leave of this Court challenge the judgment passed by the learned Judge in Chamber of the Lahore High Court whereby the appellate order setting aside the judgment and decree passed by the learned Trial Court was upheld and the Constitution petition filed againt the said judgment was dismissed.

2. ' The appellants claimed that their predecessor-in-interest Shadi Khan owned land in India who died there. The petitioners filed Claim Form No.1288 from Chak No.60/RB, Tehsil Jaranwala, District Faisalabad. After verification about 300 units were settled in Chak No.60/RB. The rest of the units were utilised for allotment obtained by other legal heirs of Shadi Khan in Tehsil Pakpattan, District Sahiwal. Respondent No.22 claiming to be the son of Shadi Khan filed Claim Form No.6050 from Chak No.57 GB, Tehsil Jaranwala, District Faisalabad and obtained allotment on that basis. The appellants filed suit challenging the allotment obtained by respondent No.22 as fraudulent. The suit was decreed but in appeal filed by respondent No.22 it was held that as interest in evacuee property was involved, the suit filed by the appellants was not competent before the Civil Court.

3. Respondents No.1 to 21 filed application under section 10/11 of the D.P. Settlement Act alleging that Ghulam Qadir and others (claiming to be heirs of Shadi Khan) have obtained allotment of land on the basis of claim in Chak No.57/GB RL-II No.96 Form No.6050 in respect of the abandoned property of Shadi Khan. In fact they have misdeclared the parentage as Shadi Khan instead of Bhorey Khan.

4. It further alleged that Dildar Khan and others claiming to be heirs of Shadi Khan have obtained allotment on the basis of their Claim No.1288 in Chak No.60/RB RL-II No.275. The complaint in a nut shell was that two groups of persons claiming to be heirs of Shadi Khan have obtained allotment independently in respect of the abandoned property of Shadi Khan.

5. ' The Additional Settlement Commissioner on the basis of the report of Central Record Office that 'Claim Form No.6050 was verified first and later on the entry of verification in the central record of Claim Form No.1288 has been made and is interpolated', came to the conclusion that area verified on appellants Claim No.1288 is fictitious and the same has been obtained by misrepresentation and fraud. Consequently, he resumed the area in Chak No.60/RB allotted to Dildar on the basis of Claim Form No.1288. It was further held that as regards area attotted on Claim Form No.6050 in favour of Ghulam Qadir and others, it shall stand confirmed in their favour.

6. ' The learned counsel for the appellants contended that the main question, namely, who is the legal heir of Shadi Khan was not decided and without deciding this question no proper and legal order could be passed. It was further contended that the claim of the appellants was cancelled merely on a report which should have been verified and checked from the record. The main question agitated throughout was that on the basis of the abandoned property of Shadi Khan two persons namely, appellants and respondent No.22 have obtained claim forms for allotment of land. In the wake of this controversy the central question was to first adjudicate who is the legal heir of A Shadi Khan. On the basis of report of the Central Record Office, this question cannot be decided as on the basis of document pointed out the claim of respondent No.22 seems to be conflicting. In these circumstances we set aside the judgment and the order passed by the Additional Settlement Commissioner and remand the case to the Notified Officer to consider the question pointed out above and other issues involved in the case. The appeal is allowed.