1980 PLP 84 (SCMR)

Hassan Ahmad Khan Kanwar, Advocate instructed by Syed Inayat Hussain Shah, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing : 24th April 1979. DORAB PATEL, J.‑‑The petitioner Habib Khan and one Tnngal, son of another Habib Khan, are both refugees from the Hissar District of India, and they had both filed claim forms for agricultural land abandoned by them in India, which were duly verified. The petitioner's claim form was numbered as Claim Form No. 3603 whilst Tungal's claim form was numbered as claim form No. 2292. As the petitioner's claim was not properly verified Mr. Kanwar stated that the petitioner had filed an objection petition as far back in 1961 which remained pending with the Claim Record Offices for many years. Finally, after full enquiry, it was discovered that the petitioner's claim had not been properly verified because Tungal, on his Claim Form No. 2292, had been granted more land than was due to him, and this excess land bad been at the expense of the petitioner. Perhaps this mistake occurred because both the petitioner and Tungal hailed from the district Hissar and confusion may also have been caused by the similarity of the names of the petitioner and that of Tungal's father. Be that as it may, Tungal bad meanwhile died, and 2 to 6 respondents (hereinafter called the said respondents) are his legal heirs, and after verification of their claim, they had sold the land allotted to them to the seventh respondent. Meanwhile. after the error in the verification of the petitioner's claim had been discovered, the petitioner had obtained an amended Fard Haqiat showing his correct entitlement against which he made many unsuccessful attempts to obtain the allotment to which be was entitled. However, as he was not given any land against his claim, Mr. Kanwar stated that the petitioner had filed an application as an informer against the respondents under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1959 (hereinafter called the said Act) and for the purpose of this petition it is sufficient to state that this application came up for hearing on 19‑4‑1976 before the Assistant Commissioner/Additional Settlement Commissioner (Land), Mailsi. The learned Additional Settlement Commissioner pointed out that the said respondents had, after Tungal's death, sold the land allotted to Tungal to the seventh respondent, who contended that he was a bona fide purchaser of the land against which the petitioner sought the allotment of his verified claim. The learned Additional Settlement Commissioner then observed that the petitioner "has not been able to prove that Tungal has got this land at Khata No. 76 through misrepresentation and fraud. So the application is dismissed". Aggrieved by this order, the petitioner filed a writ petition to challenge it in the Lahore High Court. The writ petition was opposed by the respon dents, and it came up for hearing before a learned Single Judge of the Lahore High Court on 29‑6‑1977, who noted that the petitioner's claim had remained unsatisfied prior to the repeal of the said Act and that he the petitioner) "could not get the land cancelled from the Khata of the respondents as his application as an informer was submitted after the Displaced Persons (Land Settlement) Act had been repealed. There, is thus no merit in the petitioner's submission that the Settlement authority must allot land against his claim. There is no merit in this petition and the same is dismissed‑in limine." Aggrieved by this order the petitioner has filed this petition for leave. The finding that Tungal had not obtained the land allotted to him by fraud or misrepresentation is a finding of fact which was within the exclusive jurisdiction of the Additional Settlement Commissioner (Land). Therefore, the petitioner could have challenged the finding successfully in the limited, constitutional jurisdiction of the High Court only if he had succeeded in proving that the finding against him by the Additional Settlement Commissioner (Land) was not based on any evidence or was based on a total misreading of evidence. But learned counsel could, not throw any light on the evidence which was before the Additional Settlement Commissioner (Land) when he dismissed the petitioner's application under sections 10 and 11 of the said Act. Learned counsel only relied on a judgment of this Court reported in Chhoto v. Chief Settlement Commissioner (1978 S C M R 350). We do not' think this case lends any support to learned counsel's submission, because the finding of the Court was based on the evidence produced by the petitioner " in that case in support of the allegation that the respondents had obtained an excess allotment by misrepresentation and fraud. On the other hand, in the instant case learned counsel did not even attempt to show us how it could be contended that the finding against the petitioner was not based on any evidence or was based on a misreading of evidence. And, we would emphasise that we cannot, at this stage of the case, send for the Settlement Records in order to discover whether the order of the Additional Settle ment Commissioner (Land) was, for example, not based on evidence at all. Additionally, the petitioner had pressed his writ petition in the High Court on the ground that he was an informer but the learned Judge had rejected this plea with the observation that "the petitioner has made an application in 1975 under sections 10 and 11 for that purpose but could not succeed. Now, learned counsel admitted that the petitioner would have no ' claim if he had filed his application as an informer in 1975, but he submitted that the view of the learned Judge that the petitioner had filed his application in 1975 was based on a misreading of record. And in this connection we were referred to a copy of the application filed by the petitioner as an informer. This copy is at page 33 of the Paper Book and is dated 9‑2‑1974. However, as the petitioner had not impleaded the seventh respondent in this; application, he had filed another application on I1‑6‑1975 which is at page 35 of the Paper Book to implead this respondent and according to learned counsel, the learned Judge had erroneously treated this application to amend his Mukhbari application as the Mukhbari application itself. It is difficult for us to believe that the learned Judge confused an applica tion under sections 10 and 11 of the said Act with an application to amend that application. Therefore, to say the least the burden of proving this plea was very heavily on the petitioner, and further as the question as to when the petitioner had filed his Mukhbari application was one of fact only, the petitioner had to plead in his writ petition that he had filed his Mukhbari application on 9‑2‑1974, or at least before 1975 as now claimed by him. Unfortunately for learned counsel's submission, when we examined writ petition we found that the petitioner had merely stated in paragraph 12 of the writ petition that he had filed "a separate Mukhbari application". This averment is too vague to help the petitioner's case, laarned counsel therefore further stated that he had filed a certified copy of the petitioner's Mukhbari application of 9‑2‑1974, but that this certified copy was to be found not in the record of the writ petition under appeal but on the record of another writ petition filed by the petitioner which was Writ Petition No. 820/R/1976. Accordingly we sent for the record of Writ Petition No. 820‑R of 1976 also, and as submitted by learned counsel, there is, in the record of this writ petition, a copy of a Mukhbari application filed by the petitioner which is dated 9‑2‑1974. This date is legible, but we regret to say that all the endor sements on the copy are completely illegible. However, we will accept learned counsel's submission that this certified copy was supplied by the Settlement Department.. However, even on the footing that this copy is a true copy supplied by the Settlement Department, it only proves that the petitioner's Mukhbari application was dated 9‑2‑1974. But the petitioner has to prove that this application had been filed by him on 9‑2‑19'74 and that the learned Single Judge had erroneously held that this application had been filed in 1975. The burden of this plea is very heavily on the petitioner, but there is absolutely nothing, even on this copy of his application to lend the remotest support to his contention that this application had been filed on 9‑2‑1974 or in the year 1974, as sometimes claimed by Mr. Kanwar in his arguments before us. Therefore the submission that the learned Judge has misread the record is erroneous and is rejected. Learned counsel then requested that we should send for the record of the Settlement Department as he thought this might help him to establish his point that this Mukhbari application has really been filed on 9‑2‑1974 as claimed by the petitioner. As this is a petition for special leave, we are unable to entertain this request. The petition is without merit and is dismissed. Petition dismissed.