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Civil Petition for Special Leave to Appeal No. 53 of 1970, decided on 8th April 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 20th November 1969, in Review Application No. 6 of 1969, in Letters Patent Appeal No. 444 of 1966).

Art. 98‑Remand of cases Settlement Authority cancelling allotment of land on ground of its having been obtained through fraud and getting claim transferred through back door‑Both findings found erroneous‑High Court, held, in circumstances properly, justified in remanding case to Settlement Authority for examination‑Special Leave to Appeal refused by Supreme Court.

S. M. Zafar, Advocate Supreme Court instructed by Yaqub Hussain Zaidi, Advocate‑ on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 8th April 1970.

‑The dispute between the parties is in respect of 305 kanals, 17 marlas in Chak No. 127/G. B., Tehsil Jaranwala, allotted to the respondents who are heirs of one Niaz Din. The claim of one Niaz Din was received in the above Chak. Sometime, thereafter, the authorities came to the conclusion that Niaz Din, had died and inheritance mutation was sanctioned in favour of the respondents on the 29th December 1953. It was alleged that this was done in view of the Government instructions that widows and orphans may be treated as special class allottees and may be allotted lands in the Chak for which they have registered their claim forms. These lands were allotted to the respondents from 3rd August 1954 to 20th of January 1957. The allotments of these lands were challenged by Sardar Muhammad Khan Alvi and Faqir Khan petitioners on the allegation that Bashir Ahmad etc., heirs of Niaz Din had fraudulently secured allotments in Chak No. 127/G. B. as special class allottees by falsely alleging that they were orphans and widow of right‑holder Niaz Din. The Settlement authorities found these allegations to be correct. They held that Niaz Din died on the 5th November 1958, long after the inheritance mutation was sanctioned and the transfer of Niaz Din's claim from Chak No. 362/J. B. to Chak No. 127/G. B. was irregular and not in pursuance of any valid order. On this finding the allotments obtained by heirs of Niaz Din in Chak No. 127/G. B. were cancelled and the petitioners were held entitled to the said lands as informers. These orders were passed by the Rehabilitation authorities on the 2^nd November 1961 and 15th June 1962. Respondents challenged this order in Writ Petition No. 1373/R of 1962, which was dismissed by a learned Single Judge of the High Court on the 21^st September 1965. Letters Patent Appeal No. 444 of 1966 was also dismissed on the 22nd November 1968. It was held by the Letters Patent Bench that it was established that Niaz Din was alive when the respondent put forward the claim that he was dead. That there was no doubt that the inheritance mutation was procured by false representation and, therefore, any benefit arrived under it cannot be upheld.

The case of respondents throughout was that they did not secure the inheritance mutation of Niaz Din by any misrepresenta tion or fraud. They, therefore, filed Review Application No. 6 of 1.969 on the basis of some fresh documentary evidence which supported their case. A Division Bench of the West Pakistan High Court, by judgment dated the 22nd November 1969, on the fresh evidence produced by the respondents, has come to the conclusion that no fraud has been committed by Bashir Ahmad in order to get the inheritance mutation sanctioned. According to the evidence produced before the High Court, it was revealed that it was on account of the sympathetic consideration of the Department and the disappearance of NiazDin that the inheritance mutation was sanctioned in favour of Bashir Ahmad and others. The High Court, therefore, has remanded the case to the Settle ment authorities for consideration of the question whether the petitioners have preferential rights for the allotment of the land in dispute. This order is being challenged in this petition for special leave to appeal.

In support of the petition, Mr. S. M. Zafar, learned counsel for the petitioner, has contended that the petitioners have a superior right of allotment under the Scheme. Niaz Din was non‑allottee and, therefore, not entitled to the allotment of any land in the said Chak. According to the learned counsel this point should have been decided by the High Court itself and should not have been left to the decision of the Settlement Authorities. The contention of the learned counsel has no force.1 As pointed out by the High Court, the allotments of the respondents were cancelled on the ground that fraud had been committed and they had got their claim transferred through the back door Both these findings have been found to be erroneous. In these circumstances, the High Court was perfectly justified in sending back the case to the Settlement authorities for examination in the first instance. It was contended by Mr. S. M. Zafar that the High Court has made certain observation which may prejudice the case of the petitioner. This apprehension is unfounded. The High Court has not expressed any firm opinion on any point. The matter is entirely within the discretion and decision of the Rehabilitation authorities. The High Court has remanded the case to determine the dispute between the parties in accordance with the order of remand passed by Sardar Ata Muhammad Khan, Additional Rehabilitation Commissioner, Multan Division, dated the 3rd November 1959. It is expected that the Rehabilita tion authorities will dispose of the dispute between, the parties on merits. There is no force in the petition which is dismissed.

Petition dismissed.

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