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Civil Petition for Special Leave to Appeal No. 71 of 1970, decided on 13th April 1970.

(On appeal from the judgment ‑and order of the High Court of West Pakistan, Lahore, dated the 12th January 1970, in Letters Patent Appeal No. 419 of 1969).

Art. 58(3)‑Petitioners' agree ment wholly without merit on findings of Rehabilitation Authorities as confirmed by High Court‑Petition for leave to appeal dismissed as without any substance.

Abid Ali Buttar, Advocate‑on‑Record Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing : 13th April 1970.

The dispute in this petition for special leave to appeal relates to the partition of a joint khata held by locals and evacuees in village Channah, Tehsil Rahim yarkhan, in 3/4th and 1/4th shares, respectively. The Assistant Rehabilitation Commissioner by his order dated the 28th August 1916, separated 74 kanals of land which fell to the share of the evacuees and which had been allotted to refugees, leaving the balance to the locals. In the process of separation, he followed the principle of consolidation which caused the dispossession of some of the local Muslims, including the peti tioners, from the fields of which they were in physical occupation. His order shows that he had made two proposals to the shareholders, one being that a separate block be reserved for evacuees to eliminate friction between their successors‑in‑interest, i.e., the refugee‑allottees and the locals, and also to avoid dispossession of the Muslim co‑owners from the fields in their occupation to the extent of their shares as far as possible. The other was that the land of the evacuees be separated from each khatauni according to the extent of their shares. The local co‑sharers did not agree to either of these suggestions and the Assistant Rehabilitation Commissioner, therefore, adopted a method whereby the land in excess of the shares of the (different local co‑owners was taken away from them and following the principle of consolidation a separate block of the evacuee shares of the land was .formed amounting to 74 kanals. The petitioners challenged this order in appeal unsuccessfully before the Deputy Rehabilitation Commissioner but in revision filed by them, the Rehabilitation Commissioner came to the conclusion that all the 74 kanals of land which had been given to the non‑Muslims was cultivated area and that the whole lot of the uncultivated area in the khata had been included in the share of the Muslim owners, which was not fair. Consequently, he made an amendment in the mode of partition and directed that the non‑Muslims should be given 10 kanals of uncultivated land in one compact block, thus reducing the cultivable area given to them initially, by 10 kanals. Correspondingly, ten kanals of cultivated area was given to the petitioners for the loss of the uncultivated area of 10 kanals which they were made to surrender. The petitioners then moved the High Court in writ jurisdiction, seeking reversal of the order of partition on the main ground that since they were in Hissadari Qabza of the lands in their possession, the Settlement and Rehabilitation Authority had no jurisdiction to order partition under para. 15, part 11, of the instructions of the West Pakistan Rehabilitation Scheme. The writ petition was dismissed in the High Court and so was a letters patent appeal, on the ground that the question of jurisdiction of the Settlement Authorities had not been raised before the relevant authorities, although the dispute had remained pending before them for almost 10 years. The learned Single Judge in the High Court has referred to the fact that the Assistant Rehabilitation Commissioner has taken due note of this objection and pointed out that the evacuees were not in cultivating possession of the land but they had given it to the Muslim share‑holders for cultivation which shows that there was no Hissadari Qabza of the land in dispute. The learned Single Judge also examined the special jamabandis for the years 1945‑46 and found that the petitioners were shown in possession of Khata No. 13, Khatauni No. 37 on certain areas of land which were Ghair Mumkin and Banjar Qadim. Similarly, in Khataunf No. 90, petitioner Ghulam Muhammad was shown in self‑cultivation in column No. 4 of his own share as well as the share Ghariba Ram, an evacuee. His conclusion, there fore, was that in the various khatauni numbers, there was no Hissadari Qabza and the land was being held jointly by Ghulam Muhammad with all the evacuees. It was further found by him that the petitioners who were locals, should not be allowed to take undue advantage of their unauthorized occupation of better pieces of lands which they had taken hold of after partition of the country, taking benefit from the absence of the evacuee owners and that if some land of inferior quality has now been given to them in partition of the khata they should feel contented as they have already reaped enough benefit by retaining posses sion of better pieces of the land for the last 22 years.

We consider that the argument based on the Hissadari Qabza of the petitioners to resist partition was wholly without any merit on the findings as reached by the Rehabilitation" Authorities and confirmed by the High Court. This petitioner which is without any substance, is dismissed.

Petition dismissed.

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