P L D 1982 Lahore 98 (PLP)

IRSHAD HASSAN KHAN, J.‑‑This Intra‑Court Appeal has been directed against the judgment dated 22‑6‑1980 of the learned Single Judge whereby be declared the order of the learned Settlement Commissioner dated 11‑11‑1975, cancelling the allotment of respondents Nos. 2 and 3 in respect of land measur ing 55 kanals and 10 marlas and 55 kanals and 6 rnarlas, on RL‑11 Nos. 150 and 151, in Manzer Kot Daska, Tehsil Daska, District Sialkot and accepting the Mukhbari application dated 11‑12‑1973 of the appellants ; to have been passed without lawful authority and of no legal effect.

2. Mr. A. R. Shaukat, the learned counsel for respondents Nos. 2 and 3, has raised two‑fold preliminary objections. Firstly ; that the appeal in not competent in view of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972, as amended upto date (hereinafter referred to as the Ordinance) which provides that an appeal shall not be available or com petent if the application brought before the High Court under Article 199 "arises out of any proceedings" in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order. Secondly ; that in terms of subsection (1) of section 3 of the Ordinance, an appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction. In the instant case, since the learned Single Judge has not passed the order in exercise of its civil jurisdiction but has passed the order in the exercise of its Constitutional jurisdiction therefore, the present Intra‑Court Appeal is not competent under section 3(1) of the Ordinance.

3. As regards preliminary Objection No. 1, it is proved on record that a revision petition against the order of O. S. D./C. R. O. dated 18‑7‑1973 was filed by the present respondents on 5‑11‑1973 in respect of the proceedings arising out of the verification of claims and allotments made to them in 1952. Accordingly, the revision petition was accepted by an order dated 19‑11‑1973 (Annexure G to the writ petition). The learned counsel for the appellants has, however, argued that notwithstanding the fact that the revision petition, in question, was allowed by the learned Settlement Commissioner, the present appeal is competent, inasmuch as, he was never a party to the proceedings in revision petition. The contention of the learned counsel has no force, inasmuch as, in terms of the proviso to subsection (2) of section 3 of the Ordinance, an appeal is not competent where at least one appeal or one revision or one review is available before any Court, Tribunal or authority against the original order. The original order, in the instant case is the allotment made in favour of respondents Nos. 2 and 3 as back as in 1952 against which revisional jurisdiction has been admittedly exercised and therefore, on this short ground alone, the present appeal is not competent, irrespective of the fact, whether or not the appellant was or was not a party to the revision petition.

4. Reference may also be made to the finding given in paragraph 4 of the judgment of learned Single Judge in which it has been observed in unequi vocal terms that revision petition filed by the respondents Nos. 2 and 3 was accepted by the learned Settlement Commissioner. This finding of fact cannot be interfered with in the Intra‑Court Appeal. The relevant portion of para. 4 of the judgment of the learned Single Judge reads thus :‑ "From the statement of facts made above, at would appear that the learned Settlement Commissioner has passed the impugned order dated 11‑11‑1975 on the ground that the claims of the petitioners had been cancelled by the O. S. D. Central Record Office vide order dated 28‑7‑1973. Against this order, the petitioners had filed a revision petition which was accepted by the learned Settlement Commissioner vide order dated 19‑II‑1973. No doubt, the learned Settlement Commissioner observed that an application under sections 10/11 of the D. P. (Land Settlement) Act, 1958 may be filed by any interested person but that observation would not mean that an order which has become final can be ignored. The revision against the order of the O. S. D., Central Record Office cancelling the entitlement of the petitioners having been accepted, that order was out of the way ; the earlier verification in favour of the petitioners would survive. Con sequently, the small allotments made in their favour excepting to the extent that these were reduced by an order of the D. S. C. dated 11‑3‑1966 shall remain intact."

5. As regards preliminary objection No. 2, Mr. A. R. Shaukat, Advocate, has placed reliance on a Full Bench judgment of the Sind High Court in Asad Ali and 9 others v. Settlement and Claims Commissioner, Karachi (1) wherein it was held that the writ jurisdiction of the Sind High Court is a Constitutional jurisdiction and that a judgment deciding a Consti tutional petition would not be a judgment in the exercise of the original jurisdiction of the High Court within the meaning of subsection (1) of section 3 of the Law Reforms Ordinance as amended by Law Reforms (Amendment) Act (VIII of 1.972). A Division Bench of this Court in Yousaf Ali Khan v. Muhammad Javed 1qbal Cheema (2), has also followed the Full Bench judgment of the Sind High Court in Asad Ali's case.

6. In view of the above, the preliminary objections prevail. This Intra Court Appeal is, therefore, dismissed as not competent. This also disposes of C. M. No. 1 of 1981 with no order as to costs. M. Y. H. Appeal dismissed. (1) P L D 1974 Kar. 345 (2) P L D 1975 Lah. 1339