1986 PLP 467 (MLD)

(b) Constitution oaf Pakistan (1973)‑‑ ‑‑‑Art. 199‑‑Non‑impleading of adverse party in petition‑‑Effect‑ Adverse party having been impleaded before Authority, non‑impleading of such party in petition, held, would bar order adverse to its interest to be obtained. S.M. Zamir Zaidi for Petitioners. R.A. Zafar and Nazir Ahmad Janjua for Respondent No.

2. Date of hearing: 4th December, 1985. The dispute in this constitutional petition relates to Shop No., 67‑B Galls Mandi, Jhang Saddar. Allah Bakhah petitioner filed L.S. Form under Settlement Scheme No. VIII on 29‑9‑1967 alongwith an application for condonation of delay in filing the form within the time prescribed by the Chief Settlement Commissioner in the relevant notification. The application for condonation of delay was rejected. This led to tile filing of Writ Petition No. 673‑R‑68 which was accepted, vide judgment, dated 23‑12‑1974 passed by a learned Judge of this Court whereby the order of the Settlement Commissioner, dated 5‑7‑1968 was declared to have been passed without lawful authority and hence of no legal effect with the direction that the application disposed of under the said order be considered in accordance with law after hearing the parties.

2. On remand learned Settlement Commissioner, vide the impugned order, dated 25‑4‑1977 held that the petitioner having not been found in possession was not entitled to seek transfer or condonation of delay in filing the L.S. Form. It was also observed that the condonation of delay would be of value only in case he was in possession. The application seeking condonation of delay and the L . S . Form filed were rejected.

3. Learned counsel in support of the constitutional petition submitted that finding on the question of possession recorded by the learned Settlement Commissioner was arbitrary and unfounded and that the evidence produced by the petitioner should have been relied upon in preference to the evidence and the reports of the Tehsildar and the Settlement Inspector produced by the respondents. It will be pertinent to note that the reports, dated 15‑2‑1965 and 25‑12‑1976 of the Tehsildar and the form filed by Abdur Rehman who was reported to be in possession of the property in question were relied upon. Neither these reports nor the form filed by aforesaid Abdur Rehman were placed on record. A copy of the survey register depicting the position of possession in the year 1947‑48 and the report, dated 14‑2‑1976 (Annexure 'E') are not sufficient to contradict the finding of fact recorded by the learned Settlement Commissioner. The payment of rent periodically till the year 1960 and then payment of rent on 8‑11‑1967 for the period commencing from 1‑4‑1960 to 31‑10‑1967 was not sufficient to rebut the finding of the learned Settlement Commissioner. Due to non‑production of the evidence relied upon by the learned Settlement Commissioner the finding of fact recorded cannot be successfully challenged. Be that as it may, the finding of a Tribunal of exclusive jurisdiction on a question of fact cannot ordinarily be interfered with or substituted in exercise of constitutional jurisdiction. There is another unsurmountable hurdle in the way of the petitioner. The property in question was placed in auction before the submission of the form by the petitioner and the highest bid was offered by Faiz Muhammad and Sikandar Hayat. Faiz Muhammad died while the proceedings were pending before the Settlement Authorities and his legal representatives were brought on record in the revision petition pending before the learned Settlement Commissioner. Despite this, these legal representatives of Faiz Muhammad have not been impleaded in the writ petition. Obviously in the absence of the legal representatives of Faiz Muhammad no order adverse to their interest can be obtained in this petition.

4. For the reasons given above this petition is bound to fail and the same is dismissed with costs. A . A . Petition dismissed.