HURMAT and others vs MUHAMMAD KHAN and others

' SAAD SAOOD JAN, J.---This is an appeal by special leave from the judgment dated 19-5-1975 of the Lahore High Court whereby the Constitution petition of the appellants was dismissed.

2. The dispute in this appeal relates to the legality of the allotment obtained by Muhammad Hanif, respondent No,4, in Village Fateh Jhang Singhwala of Tehsil Lahore, against the land abandoned in India by Nawab and Sardar who died during the disturbances in 1947. After obtaining the allotment Muhammad Hanif sold the land to Muhammad Ishaq, respondent No,5, who subsequently sold the same to the appellants. It may be mentioned that on his own showing Muhammad Hanif was a fifth degree collateral of Nawab and Sardar.

3. Respondents No,1 to 3 who were collaterals of Nawab and Sardar in the third degree, after migration from India, settled in Faisalabad District. They also filed claims in respect of the land abandoned by Nawab and Sardar. Somehow these were misplaced. In 1971 they filed an appeal against the mutation sanctioned on 17-1-1956 by which Muhammad Hanif was declared to be the sole heir of Nawab and Sardar. The Deputy Settlement Commissioner dismissed it on the ground of limitation as well as on the ground that his was not the proper forum for determining intricate questions of inheritance. They then filed a revision petition before the Settlement Commissioner but it too was dismissed. On 12-7-1972 they filed an application under sections 10 and 11, Displaced Persons (Land Settlement) Act, before the Chief Settlement Commissioner alleging that Muhammad Hanif had obtained allotment through fraud by misrepresenting that he was the sole heir of Nawab and Sardar. The Chief Settlement Commissioner entrusted the application to the Additional Settlement Commissioner who also enjoyed the powers of the Chief Settlement Commissioner. The appellants raised an objection before the Additional Settlement Commissioner to the competency of the proceedings before him. The Additional Settlement Commissioner overruled their objection whereupon they filed a Constitution petition in the High Court. It was dismissed. They heave now come in appeal to this Court.

4. It is contended on behalf of the appellants that after respondents No,1 to 3 had failed before the Deputy Settlement Commissioner and the Additional Settlement Commissioner in getting the mutation of 17-1-1956 reviewed, fresh proceedings under sections 10 and 11, could not be initiated as the matter of inheritance stood finally decided. It is difficult to accept this contention. It is true that if a party has exhausted its remedies through appeal and revision and failed to get an allotment set aside it would not be ordinarily permitted to start another round of litigation to agitate the matter (sic) by, invoking the provisions of sections 10 and 11 of the Act, but in this case there has never been any real contest between the parties with regard to the true heirs of Nawab and Sardar.

As mentioned above the appeal and revision preferred by respondents No,1 to 3 were disposed of entirely on technical grounds. The case of respondents No,1 to 3 was that Ali Muhammad through whom Muhammad Hanif claimed inheritance had died issueless; if the assertion made by respondents No,1 to 3 was correct, then quite clearly Muhammad Hanif had obtained the allotment through misrepresentation and fraud. Neither the Deputy Settlement Commissioner who dismissed the appeal nor the Additional Settlement Commissioner who dismissed the revision petition examined the assertion made by them. We are, therefore, unable to accept the contention that the application made by respondents No,1 to 3 before the Chief Settlement Commissioner was not maintainable as the matter stood finally decided by the orders of the Deputy Settlement Commissioner and the Additional Settlement Commissioner. This appeal is without any merit and is hereby dismissed with no order as to costs.