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Writ Petition No.825/R of 1977, decided on 6th May, 1986.

‑‑‑Art.199‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)‑‑Allotment of land, cancellation of‑ Constitutional jurisdiction, exercise of‑‑Disputed land allotted and confirmed in favour of allottee/respondent after having been cancelled from names of petitioners or their own motion‑‑Such land being not available for allotment, held, could not have been proposed in favour of petitioners on whose motion same was cancelled in spite of their possession of land in dispute as tenants‑at‑will under allottee‑‑Allotment order passed concurrently by Authorities in favour of allottee/respondent who had been pursuing, matter for number of years, could not be interfered with in exercise of constitutional jurisdiction.

‑‑‑Art.199‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2 (2)‑‑Allotment of land, cancellation of‑ Petitioners, losing allotment of land in dispute because of action or misleading proposal of Settlement Authorities admittedly had pending units which could be met from available area for allotment‑‑High Court directed Settlement Authorities that as 'pending case' units should be satisfied from any area in estate or in district.

M. Iqbal for Petitioners.

Ch. Muhammad Abdullah for Respondent No.1.

Sardar Roshan Ali Sindu for Respondents Nos.2 to 4.

The dispute relates to Khasra No.152 measuring 3 Kanals 1 Marla situated in village Kanpur, Tehsil and District Sialkot. It was proposed for allotment in favour of the respondent No.1 on 2‑6‑1970. On 3‑7‑1970 it was confirmed in favour of the respondent and also proposed in favour of the petitioners. The petitioners alongwith others filed an appeal which was dismissed on the ground that the petitioners did not have any pending units. They filed a revision petition and that' too was dismissed on 17‑11‑1976. Hence this petition. At the preliminary stage a report was called for as to whether there were any pending units of the petitioners Report has been received saying that they had 29 P. I. Units pending.

2. The contention of the learned counsel for the petitioner is that besides 29 P.I. Units the petitioners have also 24 P.I. Units pending because the area measuring 5 Kanals 2 Marlas from his name at R.L. II No.17 was cancelled on 4‑6‑1965 and this was not taken into account in the reckoning by the learned Additional Settlement Commissioner. He, therefore, submits that the appellate and the revisional orders being based on misconception of fact are liable to be declared to be without lawful authority.

3. Learned counsel for the respondent No.1 has submitted that the land in dispute alongwith other, was cancelled on the motion of the respondent by the Additional Settlement Commissioner/ Chief Settlement commissioner vide order, dated 12‑8‑1969. He was proposed the land in dispute on 2‑6‑1970 and the land was confirmed in his favour on 3‑7‑1970. Therefore, there was no land available for proposal in favour of the petitioners and the proposal in their favour on the same date viz., 3‑7‑1970, was illegal.

4. I have heard the learned counsel for the parties and perused the record with their assistance. Both the petitioners and the respondent No.1 are the sitting allottees of the estate though the petitioners from an earlier date. However, the land in dispute has been cancelled on the motion of the respondent No.1 and for that reason he has been given preference by the learned Settlement Commissioner, Lahore vide order, dated 17‑11‑1976 impugned in the petition. No doubt the appellate authority had rejected the petitioners' appeal on the ground that they did not have pending units and now it stands established that they did have the pending units. However, the land was proposed in favour of the respondent earlier on 2‑6‑1970 and confirmed in his favour on 3‑7‑1970. Therefore, it was not available for being proposed in favour of the petitioners: Learned counsel for the petitioners submitted that the petitioners have been in possession of the land. The matter was anxious consideration. But it transpires from the Khasra Girdawari produced by the learned counsel for the petitioners that their possession' is as tenants of the respondent and it is recorded (Taby merzi) . Now if the petitioners are tenants (Taby merzi) of the respondent and the respondent is the person who is shown as the owner of the estate, the petitioners cannot claim to be in possession in their own right. Although the appellate order proceeded on a misconception that the petitioners did not have pending units but that of the revisional order need not be declared to be without lawful authority because the respondent s allotment has been maintained by the revisional Court on the ground that it was .on his motion that the land was earlier cancelled and ft is I established fact that the land was earlier proposed in favour of the respondent on 2‑6‑1970 and was confirmed in his favour on 3‑7‑1970. Therefore, there was no occasion for its being proposed in favour of the petitioners. In all the circumstances of the case it does not appear justifiable to interfere in the order of allotment in favour of the respondent who had been pursuing the matter for a number of years and in whose favour all the authorities have passed the orders allotting the land. But there is no denying the fact that the petitioners had "ending units which needed allotment. Their 29 P.I. Units have been reported to be pending and 24 P.I. Units are the ones which were F taken away from them in review proceeding and an area measuring 5 Kanals 2 Marlas was withdrawn vide order, dated 4‑6‑1965. Therefore, in all they have 53 P.I. Units pending satisfaction. But for the misleading proposal in favour of the petitioners, they would have got the allotment made elsewhere. Since the petitioners are losing the land 'because of the action or proposal by the Settlement Authorities, it is directed that as 'pending' case their .53 P.I. Units shall be satisfied from any area available in the estate or in the district. This should be done at an early date, at the maximum within four months. In the circumstances, the parties shall bear their own costs.

H.B.T. Order accordingly.

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