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Civil Petition for Special Leave to Appeal No. 219 of 1974, decided on 22nd October 1974.

(On appeal from the judgment and order of the Lahore High Court made on the 5th of November 1973 in Writ Petition No. 1602‑R of 1965).

---Art. 185(3)‑Leave to appeal to Supreme Court‑Contentions that High Court's order could not operate to petitioner's prejudice, they not having been parties to proceedings culminating in High Court's order, and that lower tribunal acted contrary to documentary evidence and such objection was specifically raised yet it was not examined by High Court‑Contention, held, needed examination Leave to appeal granted.

Munir A. Sheikh, Advocate instructed by Syed Wajid Hussain, Advocate -on‑Record for Petitioners.

Nemo for Respondents.

Dates of hearing : 21st and 22nd October 1974.

The dispute in this case concerns Killa Nos. 10, 11 and 20 of Sq. No. 24 situate in Chak No. 147/13 Bin Tehsil Pakpattan of the Sahiwal district. According to the petitioners, these Killa numbers were in the temporary allotment of their predecessor‑in‑interest, Muhammad Nawaz, since 1947, but they were wrongly proposed and confirmed in the names of respondents Nos. 4 and 5, namely Muhammad Aslam Khan and his brother Muhammad Akram Khan in 1951. As this confirmation took place in the absence of the petitioners and was not acted upon by delivery of possession, the petitioners did not become aware of the same until 1956, when they filed a general representation before the Rehabilitation Commissioner of the Province. Mr. I. U. Khan set aside all the allotments of this Chak and of some other villages by an order made on the 11th of November 1956.

Several writ petitions, including Writ Petition No. 175 of 1957 instituted by the respondents, were taken up together by the High Court and accepted on 15‑11‑1957. The order of Mr. 1. U. Khan was set aside. As a result, the confirmations made in favour of the respondents stood restored. By an order made on 13‑9‑1963, formal effect was given by the Rehabilitation authorities to this position. The petitioners thereupon filed an appeal which was dismissed by the Additional Settlement Commissioner on 15‑3‑65, and their revision petition was dismissed by the Settlement Commissioner on 19‑8‑65.

In the meantime, several appeals were filed by the interested parties against the decision of the High Court dated the 15th of November 1957, but there was no appeal arising out of Writ Petition No. 175 of 1957. Those appeals were accepted by the Supreme Court by the judgment reported as Abdul Hafiz v. Rehabilitation Commissioner (P L 1) 1966 S C 483) and the order of Mr. I. U. Khan was restored. At one stage, a learned Single Judge of the High Court had made an order on 4‑12‑62 that even though there was no appeal arising out of Writ Petition No. 175 of 1957, yet the Supreme Court order should apply even to the lands forming the subject‑matter of this petition. But, as already stated, the Rehabilitation authorities gave effect to the order of the High Court dated the 15th of November 1957 as it had not been specifically reversed in appeal by the Supreme Court.

Aggrieved by the refusal of the Rehabilitation authorities to give them the benefit of the Supreme Court judgment mentioned above, the petitioners invoked the writ jurisdiction of the High Court, but their petition has been dismissed by a learned Single Judge.

Special leave to appeal is now sought on the following grounds ‑

(a) That Mr. I. U. Khan's order being for the benefit of the petitioner, the High Court's order in Writ Petition No. 175 of 1957 instituted by the respondents could not operate to their prejudice, as they were not made parties to that writ petition ; and

(b) That the Rehabilitation authorities had acted contrary to the documentary evidence in holding that the Killa numbers in dispute were not in the temporary allotment of the petitioners since 1947, and this contention had not at all been examined by the High Court although it was specifically raised in the writ petition. It was also raised in the grounds of appeal and revision before the Rehabilitation authorities.

The contentions urged on behalf of the petitioners need examination' We would accordingly grant leave to appeal. Security for costs shall be furnished in the sum of Rs. 1,000.

In the meantime, status quo as to possession of these three Killas numbers shall be maintained.

Leave granted.

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