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Civil Petition No. 43‑R of 1983, decided on 24th October, 1983.

(On appeal from; the judgment and order dated 22‑12‑1982 of the Peshawar High Court, Circuit Abbottabad in Writ Petition No. 47 of 1977).

--Art. 185(3)‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 11‑Civil Procedure Code (V of 190b), S. 11‑Allotment of agricultural property‑Orders of Acting Custodian in favour of respon dent‑Deputy Custodian in course of implementation of said order pass ing order against respondent which was impugned by respondent through writ petition‑Petitioner also filing a separate petition with grievance that being a claimant refugee his produce index units had remained unsatisfied although he had applied for allotment of land comprising Khasra numbers which formed part of same property and was subject matter of other writ petition (filed by respondent) and with request to be impleaded as party to other writ petition‑Petitioner had earlier also filed a writ petition against rejection of his application for allot ment of same property impleading respondent which was dismissed Deputy Custodian, in the meantime denied to respondent his share of agricultural land‑High Court by a common judgment holding orders of Acting Custodian to be still holding field as legality 4f same was not challenged and respondent to .be entitled to his share of property as petitioner could not claim any property unless respondent was given his due share‑Held, there was no justification to interfere with conclusion of High Court as to finality of order of Acting Custo dian‑Subordinate authorities were not permitted to hold against order of Acting Custodian‑Petitioner having earlier filed another writ petition while impleading respondent against order of rejection of his application for allotment of land comprised in same Khasra numbers which was dismissed. The question of allotment was not only con cluded but also that same question could not be adjudicated in sub sequent petition on principles of constructive res judicata‑Petitioner had therefore, no locus standi to challenge either status of respondent or his share in property having no vested right in such property Petition dismissed.

Moulvi Sirajul Haq, Advocate Supreme Court, instructed by M. Afzal Siddiqi, Advocate‑on‑Record for Petitioner.

M. Kowkab Iqbal, Advocate‑on‑Record for Respondent No. 4.

Date of hearing : 24th October, 1983.

In this case the pivotal order is that of the Acting Custodian, N.‑W. F. P., dated the 13th of February, 1950, in favour of Salahuddin Iqbal, the fourth respondent. It was in the course of its implementation that the Deputy Custodian by his order dated 14th of December, 1976, held him as an evacuee which was impugned by him through a Writ Petition No. 47 of 1977. The petitioner also filed a writ petition bearing No. 75 of 1980 after the institution of the earlier petition and also applied for being impleaded in that petition. His grievance was that being a claimant refugee from India, his produce‑index units bad remained un satisfied although he had applied for allotment of land comprised in Khasras Nos. 1149, 1150, 1151, 1152, 1153, 1154, 1156 and 1157, measuring 75 Kanals and 8 Marlas, situate in Tehsil Havelian, District Abbottabad, but it was not allotted to him as it formed part of the property, which was the subject‑matter of the writ petition filed by Salah‑ud‑Din Iqbal. His allotment application was rejected on 14th of July, 1976, and in the meantime, the impugned order of the Deputy Custodian was passed denying to the fourth respondent his share of agricultural land.

The High Court by a common judgment held that the order of the Additional Custodian dated 27th of December, 1975 and the subsequent order dated 14th of December, 1976 were without any legal basis in view of the order of the Acting Custodian dated 13th of February, 1950, which held the filed as at no time its legality was challenged. Having held so, the High Court further held that the order of the Acting Custodian has not been implemented with the result that the fourth respondent was not able to get his due share in the property. In this connection, it would be necessary to refer to the reasons given by the High Court while dismissing the writ petition filed by the petitioner, Dolu. These are :

"We have noticed that this land is a part of the agricultural property which is the subject matter of Writ Petition No. 47 of 1977 filed by Sh. Salahuddin lqbal petitioner. I have already held hint entitled to his share in the said agricultural property. In view of this, the peti tioner Dolu cannot claim any land in the said property unless Sh. Salahuddin Iqbal petitioner is given his due share therein. It may, however be observed that after determining the share of Sh. Salahuddaa Iqbal, if the rest of the land in the said agricultural property is found to have been allotted to other claimant‑refugee and petitioner Dolu cannot be accommodated in satisfaction of his claim in that land, he may move the authorities for the allotment of other available land."

Having examined the reasons given by the High Court, we find no justification to interfere with its conclusion as to the finality of the order of the Acting Custodian, and ought it be said that in the face of that order, it was not permissible for the subordinate authorities to hold against it. The learned counsel was not able to show that the lands claimed for allotment Dolu were treated as evacuee property and what is more is that he h earlier filed a Petition No. 208 of 1976, impleading the fourth responder against the order rejecting his application for allotment of the land comprised in these Khasras numbers, which was dismissed. Therefore, not only was t question of allotment concluded, but also that this question could not ha been adjudicated in the subsequent petition on the principle of construct res judicata. He cannot, accordingly, be said to have any locus standi challenge either his status or that of his share in the property, the more when he has no vested right in it. In our view the order of the High Court un-exceptionable.

There is, therefore, no merit in this petition, which is dismissed.

M. Z. M.

Petition dismissed.

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