Find a Lawyer

Civil Appeal No. 1 of 1974, decided on 23rd January 1976.

(On appeal from the judgment and order of the Lahore High Court. dated the 16th of September 1971, in Settlement Revision No. 164 of 1971).

------S. 11‑‑Res judicata‑‑Impugned order is nature of an administrative Order passed as result of complaint mad; to Martial Law Administration‑Collector, passing order, also not going into merits of cast and merely asking complainant‑respondent to seek his remedy in civil Court‑Respondent's application under S. 10, Displaced Persons (Land Settlement) Act, 1958 requesting for cancellation of allotment in favour of appellant on ground of same being obtained after concealment of facts in order to deprive respondent of his right to inherit property, hold, not hit by principle of res judicata‑‑(Displaced Persons (Land Settlement) Act, (XLVII of 1958), S. l0‑‑[Res Judicata].

-----S, 10‑Cancellation of allotment‑‑Respondent minor at time of allotment of land to appellant‑-Application under S. 10 filed by minor when apprised of fraud committed by appellant in respect of mutation of land in his favour‑Impugned mutation being obtained by fraud and concealment of facts, no appeal from such order necessary and order, held, could be impugned under S. 10.

----S. 10 read with S. 19‑Cancellation of allotment‑Limitation Section 10‑‑A Code by itself and not subject to any other provisions of Act XLVII of 1958‑Hence, not subject to any period of limitation. [Limitation].

Muhammad Latif & Co. v. Chief Settlement and Rehabilitation Commissioner P L D 1974 S C 130 ref.

Muhammad Hussain, Advocate Supreme Court instructed by Maqbool Ahmad Qadri, Advocate‑on‑Record for Appellant.

Respondents Nos. 1 and 2 : Ex parte.

Khalilur Rahman, Advocate‑on‑Record for Respondent No. 3.

Date of hearing : 23rd January 1976.

This is an appeal by special have of this Court. The appellant has been aggrieved by an order of a Division Bench of the Lahore High Court dated the 16th of September 1971, dismissing in limine Settlement Revision No. 164 of 1971, filed by the appellant.

The appellant claimed to be the sole surviving heir of the deceased right‑holder, Mustaqeem, who had abandoned agricultural land in a village in the District of Ferozepur, India. He filed a claim form Chak No. 1, Rosa Tibba, Tehsil Chunian. District Lahore, for the verifica tion of the property abandoned by his father. Eventually a Fard‑e‑Haqiyyat was issued and mutation of inheritance was sanctioned in favour of the appellant in March 1953, by the Assistant Commissioner‑II/Assistant Rehabilitation Commissioner, Pattoki, as the sole heir of Mustaqeent Respondent No. 3 Nazir Ahmad, who claims to be the son of Mst. Begurn Bibi sister of the appellant, was minor at the time. In the year 1969 the respondent having come to know of the aforesaid mutation complained to the Martial Law Administrator, Lahore, that his uncle, appellant Hidayat Ullah, had got the impugned mutation sanctioned in his sole name fraudulently on a falser statement that the said Mustaqeem had only one son as hits sole surviving heir. This application can by no stretch of imagination be said to be one made under section 10 of the Displaced Persons (Laced Settlement) Act, 1958, hereinafter called the Act, inasmuch as the power under section 10 of the Act is exercisable only by the Chief Settlement Commissioner. On the 14th of January 1970, the Collector. Lahore, asked the respondent to seek remedy in the civil Court. In the meantime on the 27th of September 1969, the respondent filed a regular application under section 10 of the Act before the Additional Settlement Commissioner, who by his order dated the lit of June 1970, sent it to a Magistrate for inquiry and report. Ill the Meantime the appellant filed a Settlement Revision in the Lahore High Court under section 21 of the Act from the order dated the 1^st of June 1970, and it was dismissed on the 8th of September 1970, on the ground that it was, Premature Inasmuch as no final order had been against the appellant.

The said Magistrate examined witnesses on behalf of the two parties and on a consideration of the evidence came to the finding that respondent Nazir Ahmad was the son of Ali Muhammad by his wife Mst. Begun Bibi, who was the real sister of appellant Hidayat Ullah, and a report dated the 20th of January 1971, was accordingly submitted to the Deputy Commis sioner/Additional Settlement Commissioner, Lahore, with powers of the Chief Settlement Commissioner. Among the witnesses examined by the Magistrate was the appellant's nephew respondent Nazir Ahmad who stated that AN. Begun Bibi was the true sister of appellant Hidayat Ullah and that Nazir Ahmed was her son. Even D. W. Abdul Aziz examined on behalf of the appellant stated that Mst. Begun Bibi was the sister of Hidayat Ullah and that she had a son, but added that he died in India. The Deputy Commissioner/Additional Settlement Commissioner on a con sideration of the report and examination of the record by his order dated the 27th of July 1971, accepted the application arid allowed the review of the impugned mutation. It appears from this order that the appellant who was the respondent before the Deputy Commissioner/Additional Settlement Commissioner had admitted that Mst. Begun Bibi was the daughter of Mustaqeem and Nazir Ahmad was her son.

The appellant felt aggrieved by the order dated the 27th of July 1971, and he accordingly filed Settlement Revision No. 164 of 1971 before the Lahore High Court, but it was dismissed in limine as stated already.

Leave, was granted to consider whether the principles of res judicata applied to the case whether no appeal having been filed by the respondent against the order of mutation the order became final and could not be re‑agitated and whether section 10 of the Displaced Persons (Land Settlement Act, 1958, empowered the Chief Settlement Commissioner to cancel the allotment of agricultural land on the grounds specified therein was controlled by section 19 of the Act which provided a time limit for the exercise of revisional jurisdiction by the Chief . Settlement Commissioner.

On behalf of the appellant it has been contended that the order dated the 14th of January 1970, passed by the Collector, Lahore, operated as a res judicata and the respondent, therefore, could not re‑agitate the matter on his application filed on the 27th of September 1969, for reviewing the mutation. This contention has no substance because the order dated the 14th of January 1970, was in the nature of an administrative order passed as a result of complaint made by the respondent to the Martial Law Administrator. Lahore. In any event the Collector, Lahore, did not go into the merits of the case and merely asked the respondent to seek his remedy in the 64,11 Court. The application filed by the respondent on the 27th of A September 1969, was under section 10 of the Act, and it was alleged therein that the appellant had fraudulently obtained the transfer after having concealed the material facts in order to deprive the respondent of his right to inherit the property under law. The jurisdiction to deal with such fraudulent 'transfer Jay exclusively with the Chief Settlement Commissioner, and there was no time limit for it.

It has next been contended that no appeal having been filed against the order of mutation sanctioned in March 1953, the impugned order of mutation wane final and could not be re‑agitated. As may have been noticed already the respondent was minor at that tune and it was only whets he came to know of the fraud committed by rites appellant to respect of the said mutation that the former made the said application under section 10 of the Act. The impugned mutation having been obtained by fraud and concealment of material facts no appeal from such an order was at all necessary, and the only correct procedure was to impugn the order under section 10 of the Act.

Lastly it has been contended that auction 10 of the Act is controlled by section 19 of the Act and, therefore, the respondent's application under section 10 is barred by limitation. A similar point was raised in the case of Muhammad Latif & Co. v. Chief Settlement and Rehabilitation Commissioner (P L D 1974 S C 130) and this Court observed as follows :-

"It rests on the erroneous assumption that the jurisdiction of the Chief Settlement Commissioner under section 11 is assimilable to his revisional jurisdiction under section 19(P L D 1974 1974 S C 130) of the Act. Section 1 l occurs in Chapter IV of the Act, beginning with section 9 which creates a hierarchy of various settlement authorities with the Chief Settlement Commissioner at the apex. Section 10 gives plenary power to the Chief Settlement Commissioner to cancel or to reduce an allotment when he is satisfied that the allotment has been obtained by 'fraud or false representation. Exercise of power under this section is not subject to any period of limitation. Section 11; gives analogous but wider power to cancel or terminate an allotment, or a lease made under a Scheme or under This, Act . . . . . . . . . . . .

Section 19 on the other hand occurs in Chapter VI which curtains provisions relating to appeals, revision and review including the a power of revision by the High Court under section 21 of the Act, which like the suo motu revisional power of the Chief Settlement Commissioner lies on a law point only. There is no such qualifica tion or limitation in respect of cases failing to be dealt with under section 11 . . . . . . . . . . . . . . . . . . .

Sections 10 and 11 are in pari materia and having regard to the it provisions, in our opinion: the Legislature advisedly did not make their operation subject to any period of limitation."

The reasons given in the case under report applied with greater force to section 10 inasmuch as unlike section 11, the power exerciseable under section 10 is not subject to any other provisions of the Act.

It is, thus, evident that section 10 is a Code by itself, and is not Subject to any period of limitation.

There is no substance in this appeal, and it is, accordingly, Dismissed without any order as to costs.

Appeal dismissed,

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.