DEWAN ALI AND 7 Other vs BARKAT ALI AND 10 Other

Pira son of Faqir caste Dogar, resident of village Bhagran, Tehsd Dasuha, District Hoshiarpur (India) was deceased right-holder who died in India in 1945. He left behind for sons, namely, (1) Dewan Ali ;

(2) Mehr Ali; (3) Muhammad Chiragh and (4) Subhan Ali; and a daughter Mst. Ghulam Fatima who was married to one Barkat Ali. From a perusal of Annexure 'A' which is a copy of it appears that the estate of the deceased was verified against claim forma Nos. 2645, 18153, 13158, 13125 and 3155 on the basis of which a Khata bearing Nos. 195 was opened in the name of Pira son of Faqir. The afore- -said document further shows that mutation bearing No. 1. Pertaining to the inheritance of Pira was attested. It is further to be noticed that Mehr Ali had also died in India and Mutation No. 2 of his inheritance was also similarly finalised. Subban died in 1958 and mutation bearing No. 3 of his (inheritance was prepared and attested. Mst. Ghulam Fatima daughter of Pira died in 1967 and Mutation No. 4 of her inheritance was also similarly pre--pared and attested. The following pedigree-table will explain the relation--ship of the parties :- PIRA (died in 1945)

Dewan Ali Mehr Ali Mst. Ghulam Muhammad Subhan Ali (died in 1947 Fatima (she Chiragh (still,-(died in in India)married alive not a1958) respondent party did Mst. Nasreen Javaid Ali No. 1 and riot contest) died in 1967)

Ghulam Mustafa Mst. Bashiran Muhammad Jamil

2. In the inheritance left by Pira. Mst. Ghulam Fatima was also given due share to the extent of 1/9th (as stated by the learned counsel for the petitioner at the bar). In the inheritance of Mehr Ali who had died in India similarly in Mutation No. 2 share was given to his daughter Mst. Bashiran as well. It has not been disputed before me that Mst. Ghulam Fatima was not entitled to any share in the inheritance of her late father Pira.

3. The case before me Js confined merely to examine the question that when on the basis of the aforesaid claims allotment was made at Khata No. 195 in Chak No. 325/EB and at Khata No. 2 in village Gahi Shah in the name of the deceased right-holder then whether the benefit of that allotment is to be reaped solely by the petitioners to the exclusion of the heirs of Mst. Ghulam Fatima or should it enure for their benefit also. As a matter of fact, when such a dispute was raised the heirs of Mst. Ghulam Fatima filed an application before the learned Deputy Settlement Commis--sioner for declaration of her or their rights in the allotment of the land presently in dispute. This was accepted by the learned Deputy Settlement Commissioner by means of his order dated 3-5-1969 and he held that the allotment of the land in dispute could enure for the benefit of the heirs of Mst. Ghulam Fatima to the extent of bar or their proportionate share. It appears that in this application the heirs of Mst. Ghulam Fatima had also made a complaint that they were not being given the share of the produce to the extent of their share and the learned Deputy Settlement Commissioner in consequence of the declaration granted by him cave a further direction to the petitioners to give the share to them. A copy of that order has, however, not been filed by any of the parties in this Court.

4. Feeling aggrieved Dewan Ali and others filed an appeal but without any success as the same was dismissed by the learned Additional Settlement Commissioner on 9-3-1970. He maintained the finding of the learned Deputy Settlement Commissioner that the allotment of the land in dispute could enure for the benefit of heirs of Mst. Ghulam Fatima to the extent of their proportionate share.

The petitioners then filed a revision which also was dismissed by the learned Settlement Commissioner on 10-12-1970. The petitioners have come up in writ petition against the aforesaid proceedings and orders to this Court.

5. It may be clarified at the outset that the learned counsel for the petitioners has not disputed the entitlement of Mst. Ghulam Fatima and her heirs in the inheritance left by Pira propositus in this case. The only question (to excuse repetition)-in issue is whether in the allotment made to two villages, namely, Chak No. 325/EB, and Mauza Gahi Shah, can enure for the benefit of Mst. Ghulam Fatima and her heirs or not. Since the allotment had been made on the basis of the claim and in the name of the propositus, therefore, there can be no doubt that it will enure for the benefit of all the heirs including Mst. Ghulam Fatima and the plea of the petitioners that Mst. Ghulam Fatima should secure an independent allotment somewhere cannot deprive her from her share in the allotment which so far has been obtained on the basis of a common claim. The orders of the Settlement and Rehabilitation authorities on the facts and in the peculiar circumstances of this case are quite just and fair. They did not suffer from any legal infirmity and there is no scope to interfere with them in the course of writ jurisdiction. When confronted with the above situation, the learned counsel for the petitioners argued that even though the Deputy Settlement Commissioner was competent to give a declaration with regard to the entitlement of Mst. Ghulam Fatima and her heirs in the land in dispute be possessed no jurisdiction to direct the petitioners to hand over the share of the produce to them and for that relief the heirs of Mst. Ghulam Fatima could have gone to other forum of competent jurisdiction in accordance with law. Whatever the technical defect in this respect there may be, however, in the exercise of my discre--tionary jurisdiction under Article 98 of the 1962 Constitution (now correspond--ing to Article 199 of the 1973 Constitution)-I am not inclined in interfere with a just and fair order which purports to do substantial justice between the parties, and as such, I cannot give protection to the petitioners in the exercise of that jurisdiction to usurp the shares of others which obviously they have no right to do. If any interference in that respect is made in the impugned orders that will tantamount to conferring such benefits on the petitioners to which they are not entitled under the law of the land. It is well settled that a writ cannot be issued in aid of injustice. See Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD1973SC236 , and Tufail Muhammad and others v. Raja Muhammad Ziaullah Khan and another PLD1965SC269 .

6. For the reasons aforesaid the present writ petition has no merit and is dismissed with no order as to costs.