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Writ Petition No. 159-R of 1986, decided on 22nd September, 1986.

--Ss. 10 & 11--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2)--Time-barred Mukhbari application, held, could be heard and decided even in absence of Mukhbar.

Ss. 10 & 11--Cancellation of allotment--Effect--Where land allotted in favour of allottee subsequently was duly cancelled by Authority for want of prior right of allotment of such allottee, sale of that lane by such allottee, held, would be without title and void altogether.

Malik Abdul Sattar Chughtai for Petitioners.

Qamar-ud-Din Mayo for Respondents.

Date of hearing: 22nd September, 1986.

This is the second round of litigation Some lands was allotted on Khata No.3 of Chak No. 55/M.L. Tehsil and District Bhakkar in favour of Mst. Lali by the Deputy Settlement Commissioner on 10-3-1970. On 6-11-1970, the Khata was cancelled on the ground that the allottee's claim had been cancelled by the Central Record office and land was, then allotted in favour of one Muhammad at R.L.-II No. 4. On 29-1-1971 the allotment in favour of the original allottee Mst. Lali was restored on the ground that her claim had been -re-verified. New allottee Muhammad's heirs filed an application on 31-12-1971 before the Chief Settlement Commissioner to the effect that the claim of 31st. Lali already stood settled in the District of Multan and that the allotment in Bhakkar was obtained by fraud: After recording evidence and hearing the legal representatives of Mst. Lali aforesaid who admitted to have secured full satisfaction of their claim in the District of Multan, the learned Settlement Commissioner exercising powers of Chief Settlement Commissioner cancelled the land from the Khata of Mst. Lali and directed that as regards the allotment of Muhammad son of Lashkar at Khata No.4 it is for the District authorities to pass necessary order . This is vide order dated 29-4-1972. Notwithstanding this order, an area measuring 1090 Kanals 16 Marlas cancelled from the Khata of Mst. Lali was allotted to the petitioner Latafat Ali Khan on 3-8-1972. Muhammad's heirs, respondents Nos.l to 4 filed an appeal against this allotment on 24-4-1973. The learned Additional Settlement Commissioner observed that it is evident from the copies of the Register R.L.-II of village Chak No. 55/L.M. that the allotment of Lali was entered at serial No. 3, of the said register and that of Muhammad at No. 4. The allotment made in favour of Latafat Ali respondent is entered at serial No. 6 but it is not clear from these copies whether Latafat Ali has a prior right of allotment than the appellant nor they were heard by the learned Deputy Settlement Commissioner (Land) while passing the impugned order, I, therefore, accept this appeal, set aside, the order of the Deputy Settlement Commissioner (Land) dated 3-8-1972 and remand the case to him for fresh decision after giving an opportunity of being heard to the parties concerned and determine the priority. "This is vide order dated 21-1-1974, Muhammad's heirs filed an application on 8-5-1974 before the Deputy Settlement Commissioner (Land) to proceed with the remand case. The Deputy Settlement Commissioner directed issuance of notice to Latafat Ali Khan petitioner for 25-1-1975 on 29-5-1975, Muhammad's heirs filed an application for service on Latafat Ali Khan through publication in a newspaper. They were directed by the Deputy Settlement Commissioner to deposit the requisite fees, whereafter a notice was published in a Daily called Shola published from Sargodha for 31-7-1975. The case was taken up on 31-7-1975 on which date Latafat Ali Khan did not appear before the Court. The case was adjourned to 11-8-1975. On the last date, the learned Deputy Settlement Commissioner directed ex parte proceedings against Latafat Ali Khan, and thereafter ordered that the land allotted to him at Khata No. 6. and Khata No.3 of Mst. Lali, be confirmed at Khata No.4 in favour of Dara etc. heirs of Muhammad. This is vide order dated 11-8-1975. Latafat Ali Khan filed an application before the Deputy Settlement Commissioner for recall of the aforesaid ex parte order but the learned Deputy Settlement Commissioner rejected the application vide order dated 15-7-1976. He filed Constitutional Petition No. 114-R of 1976 which was remanded for re-hearing and to determine the priority for allotment of the land between Muhammad and Latafat Ali Khan. This is vide order dated 31-3-1977. On remand the matter was taken up by Additional Commissioner (Revenue), Sargodha Division in the presence of the petitioners and he came to the conclusion that Muhammad's heirs had prior right and secondly the units of Latafat Ali Khan had not been received in the estate. He thus upheld the allotment. in favour of Muhammad's heirs vide order dated 15-9-1984. The petitioners who had claimed to be purchasers from Latafat Ail Khan of an area measuring 752 Kanals 16 Marlas through a decree of, civil Court for which a mutation was sanctioned on 7-1-1978, have filed this constitutional petition.

2. The contention of the learned counsel for the petitioners is that the Mukhbari application against the predecessor-in-interest of the petitioner Latafat Ali Khan was barred by time. Mukhbars had not appeared. The application had been rejected by the Chief Settlement Commissioner (Lands) on 30-3-1985 and therefore, there was no occasion for passing the impugned order.

3. None of the contentions have any force whatsoever. The Mukhbari application even if barred by time and the Mukhbars had not appeared could still be proceeded with by the authorities to determine the matter brought before it. In any case, the present impugned order has been passed by the learned Additional Commissioner (Revenue) /Settlement Commissioner with powers under sections 10 and 11, Sargodha Division, Sargodha in pursuance of the order of remand passed by this Court in writ Petition No. 1146/R of 1976. Therefore, there is no question that the learned Additional Commissioner has erred in determining the rights of the parties. On merits, it is to be noticed that it was directed by the Settlement Commissioner/ Chief Settlement Commissioner on 29-4-1972 that the case of Muhammad for allotment was to be looked into by the authority. Without doing that the land was allotted to Latafat Ali Khan the predecessor-in-interest of the petitioners on 3-8-1972. On acceptance of Muhammad's appeal by the learned Additional Settlement Commissioner on 21-1-1974, allotment in favour of Latafat Ali Khan was set aside. Therefore, the sale in favour of the petitioners was without title and void altogether. Consequently, no rights would accrue in favour of the petitioners. As regards the priority for allotment either to Muhammad or to predecessor-in-interest of the petitioners, namely, Latafat Ali Khan, it is to be noted that- the land was proposed in favour of Muhammad on an earlier Khata No.4 whereas it was allotted to Latafat Ali Khan at Khata No .6. The learned Additional Commissioner (Revenue) had found 'that Muhammad was entitled to priority of allotment; and that the units of Latafat Ali Khan, predecessor-in-interest of the petitioners were never received in the estate. On the basis of these two findings, the impugned order has been passed. It is obviously unexceptionable and not interferable.

4. In view of what has been stated above there is no merit or force in this petition and the same is accordingly dismissed in limine.

Applicants in Civil Miscellaneous No. 2166 of 1986 be impleaded and shown as respondents in the petition.

H . B . T . / G-29 / L. Petition dismissed.

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