1968 SCMR 392 (PLP)

S. A. RAHMAN, J.

The respondents, Abdul Saeed Khan and Abdul Waheed Khan, obtained the ground floor of house No. D/44/2204, situate in Lila Ram Lane, Pakha Pir Hyderabad, under the earmarking scheme. They sought a writ from the High Court of West Pakistan, Karachi Bench, against an border passed by the Chief Settlement Commissioner, dated the 9th November 1961, by which he directed that portions of the ground floor of the building in question be divided into three portions and transferred respectively to Muhammad Ismail Jaffery. Mst. Amir Bibi and Mst. Saeeda Begum who were in possession thereof, according to their respective possession. The order of the Chief Settlement Commissioner was set aside by a Division Bench of the High Court and the' learned Judges directed the Chief Settlement Commissioner to re-hear the revision petition of the three trans ferees of the ground floor, after giving an opportunity to the peti tioners before the High Court to meet the evidence led before him by the transferees. The parties were left to bear their own costs. Special leave to appeal was granted to these three transferees as it was contended on their behalf that the High Court had erred in assuming that Abdul Saeed Khan and Abdul Waheed Khan had not been made parties to the revision petitions of the appellants before the Chief Settlement Commissioner or that they had not been heard by him while passing the order impugned before the High Court. It was also maintained that the respondents could not make a grievance of the fact that they were not allowed an opportunity to rebut the fresh evidence on which the appel lants had relied before the Chief Settlement Commissioner as they never objected to the admission of that evidence or prayed for an opportunity to produce evidence in rebuttal. We have heard Mr. G. H. Abbasi in support of the appeal. The learned Counsel is on firm ground when he argues that the learned Judges of the High Court iris-directed themselves in so far as they appear to have held that Abdul Saeed Khan and Abdul Waheed Khan had not been made parties to the revision petitions of the appellants or not been heard therein by the Chief Settlement Commissioner. The original record of the case has been summoned from the department and at page 17 thereof appears an application which had been submitted by the res pondents for being impleaded as parties to the revision petitions before the Chief Settlement Commissioner, on the 28th Septem ber 1961. On the margin of this application there is an endorse ment by the Chief Settlement Commissioner indicating that the application had been allowed. Below it is another endorsement showing that the parties and their Counsel were present and they were heard on the 9th November 1961 when orders were reserved. The impugned order was then passed, bearing the date the 9th November 1961. To be fair to the learned Judges it must be pointed out that in this connection, a factually incorrect admission was made by the Advocate for the appellants to the effect that these respondents had not been made parties to the revision peti tions by the Chief Settlement Commissioner though, it was suggested, that despite this defect the parties had all been heard by that officer. This wrong admission, as it now appears, has no basis in the facts of the case. But the principal grievance of the respondents before the High Court was that some evidence had been received by the Chief Settlement Commissioner, to their prejudice at the stage of final revision, without there being any opportunity on their part to rebut that evidence. It is on this aspect of the case that controversy between the parties has principally centred. The question assumed importance because of the subordinate autho rities who had dealt with the case earlier, had rejected the prayers of the appellants that they should be transferred parts of the ground floor in their possession. It was only in final revision from an order passed in revision by the Settlement Commissioner that the Chief Settlement Commissioner decided to hold that the ground floor could be divided into three independent units and transferred to the persons in possession, two of whom were locals and the third a claimant, on the ground that the valuation of each part was less than Rs. 10,

000. Page 59 of the original record shows that on the date of hearing before the Chief Settlement Commissioner, namely, on the 9th November 1961 itself Inayat Hussain who had been transferred the first floor as an independent unit and who claimed to be entitled to the whole house, had protested against fresh evidence being admitted to support the claim of the present appel lants at that late stage, when no rebuttal was possible. The res pondents Abdul Saeed Khan and Abdul Waheed Khan do not appear to have put in any such written protest but, it is asserted on their behalf, that they also took exception to the course adopt ed by the learned Chief Settlement Commissioner in this respect. It is further pointed out that the fresh evidence, thus allowed to come on record, consisted not merely of certain copies of official documents whose authenticity could be said to be beyond doubt, but also some private documents who authenticity and accuracy of contents were open to challenge. It appears that Mohammad Ismail Jafery, Mst. Saeeda Begum and Mst. Amir Bibi had produced abstracts from a Property Register, presumab ly from the Municipal Committee, to show that there was private partition existing at the time of Hindu owners of the property and separate numbers had been given to each unit thereof. Theyalso relied on a copy of an alleged Survey made by the City Surveyor, Hyderabad which purported to say that he had inspected the building and had found that the ground floor was divided into three portions, in the occupation respectively of Muhammad Ismail Jafery, Mst. Saeeda Begum and Mst. Amir Bibi and that they had been living there for the last 10 or 11 years. This material was sought to be supplemented by a certificate issued by the Chairman, Union Council Ward No. 2, Hyderabad, saying that Mst. Saeeda Begum and Mst. Amir Bibi had been living in the premises for the last 10 or 11 years, that Mst. Saeeda Begum was in the western portion of the ground floor while Muhammad Ismail Jafery and Mst. Amir Bibi occupied the eastern portion and a part situated on the south, respectively and that the three families had been in occupation of the premises for the last 12 years. These appellants, moreover, produced three Ration Cards showing their names and addresses and other documents from the Rationing Controller's Office, tending to support their resi dence in the building in question at the material time. It further appeared from a certificate of the Medical Superintendent of Sir C: J. Mental Hospital, Hyderabad dated the 31st October 1961, submitted to the Chief Settlement Commissioner that Mst. Amir Bibi was admitted in the hospital in the year 1957 and that her address was then given as "Pakha Pir Incline, Lila Ram Bharoo Mal Building, Hyderabad" which tallies with the description of the house in dispute. It was on the basis of this documentary evidence that the Chief Settlement Commissioner felt satisfied that the ground floor had been in occupation of the three appel lants since long. He rejected the contention raised by Syed Inayat Hussain, Abdul Saeed Khan and Abdul Waheed Khan, who had all gone up in revision to him, that Mst. Saeeda Begum had been introduced into the house sometime later, so as to take advantage of the fact that she was a claimant. Several of these documents, as might have been noticed, con tain statements of persons on factual matters the truth of which was not tested by any cross-examination of the persons concerned, nor was an opportunity to rebut that evidence allowed to the respondents. Indeed some of these documents might not have been admissible in evidence at all without formal proof of the correctness of their contexts. The respondents have now obtain ed certain other documents which are detailed at pages 90 to 91 of their writ petition in the High Court, which, according to them, belie the effect of the documents on which reliance was placed by the appellants before the Chief Settlement Commissioner. We have not examined these documents overselves but the very fact that such an allegation is being made would lend force to the contentions raised before us on behalf of the respondents that the learned Chief Settlement Commissioner was not justified in accepting, at the final stage of revision before him, fresh evidence, without the contesting parties being allowed a chance of rebuttal. These circumstances would, in our opinion, justify the order made by the High Court that the Chief Settlement Commissioner should re-hear the revision petitions of the appellants, after allowing an opportunity to the respondents before us, to lead evidence in rebuttal of that produced by the appellants before the Chief Settlement Commissioner. In substance, therefore, the appeal fails and is hereby dismissed, but in the circumstances we make no order as to costs. We also take note of the fact that Inayat Hussain has put in a petition for being impleaded as a party to these proceedings. His writ petition was dismissed by the High Court by a separate c order but he did not seek special leave to appeal therefrom and consequently, we are unable to accede to his request that he should have been impleaded as a party and heard in that capacity by us His application is rejected. Petition dismissed.