1972 PLP 342 (SCMR)

HAMOODUR RAHMAN, C. J.‑The petitioner, who is a refugee from India (Patiala State) obtained a confirmed allotment of 36 kanals and 9 marlas of lands in Chak No. 11, Gajjiayani Tehsil Chishtian, District Bahawalnagar, on the 13th of February 1959, on the ground that he, being a minor at the time of partition, could not file his claim and the lands were previously in the temporary allotment of his uncles, Sohna; Sultan and Bahadur. Rana, father of the respondents 2 to 6, challenged this allot ment. He failed in appeal before the Deputy Rehabilitation Commissioner, Bahawalnagar but succeeded in revision on the ground that he, was a temporary allottee in the Chak while the petitioner was a non‑allottee and the area in dispute was close to the area already confirmed to him. The petitioner then challenged the order by a writ petition in the former High Court of West Pakistan. A learned Single Judge refused to interfere on the ground that there was no reliable evidence on the record to show that the petitioner was a minor at the time of Partition. Paragraph 14 of Chapter I, Part It of the Rehabilitation Settlement Scheme was also invoked in aid for supporting the allotment in favour of Rnna. This order of the learned Single Judge has been upheld in a Letters Patent Appeal where the main point argued was that the petitioner was a minor at the time of Independence and was the real nephew of Sohna, Sultan and Bahadur who were sitting allottees of this Chak. The respondents challenged both these points and filed a photograph of the petitioner to show that he was a man of middle age and could not have been a minor at the time of Independence. They also filed a pedigree table to show that Sohna was not the real uncle of the petitioner. The Appellate Bench then ordered the learned counsel appearing for the petitioner to produce the petitioner in Court on the 20th of January 1972. The petitioner did not appear and the learned counsel appearing on his behalf made a categorical statement that he had sent specific instructions to the petitioner to appear on that date. He even informed the Court that someone on behalf of the petitioner had approached him_ the night before to enquire if the presence of the petitioner was necessary. This person as also told that the petitioner's presence was absolutely necessary as the Court wanted to see him. After this statement, the Court presumed that the petitioner was not in a position to controvert the allegations made by the respondents and therefore dismissed the appeal with costs. The petitioner now seeks special leave to appeal and on his behalf‑ it is contended that the petitioner's non‑appearance was due to the fact that the person, who was sent to meet the learned Advocate appearing on his behalf in the High Court, never came back and conveyed to him the information that his presence was necessary, and, therefore, his absence from the Court was not' (intentional. It appears that before the Letters Patent Bench a brother‑in- law of the petitioner called Muhammad Sharif was actually examined and was asked as to what might 'be the age of the petitioner. He stated that his own age was 42 and that his oldest sister who was 7 years older than him, i.e., 49, was married to the petitioner and she was younger to the petitioner by about three years. This would make the age of the petitioner about 52 at the time this statement was recorded in January 1972. Even on this calculation, the petitioner could not have been a minor at the time of Independence. Learned counsel next sought to contend that, even assuming that he was not a minor at the time of Independence and that he was a non‑allottee of the Chak, yet he was entitled to get the allotment under paragraph 7(I) of the Rehabilitation Scheme, and this point was not considered by the High Court. This point was never raised in any Court below and it cannot be raised for the first time in this Court as it involves investiga tion into facts, namely, as to whether there was land available for allotment to non‑allottees in this Chak after meeting the claims of the allottees. As for the question regarding the age of the petitioner, it is purely a finding of fact based upon evidence. No rebutting evidence of any kind has been placed before us to show that the finding was incorrect. We see no reason, therefore, to interfere. This petition is accordingly dismissed. Leave refused.