1994 PLP 1997 (SCMR)

Nemo for Respondents Nos. 1 to

4. MA. Qureshi, Advocate‑on‑Record for Respondent No.

5. Date of hearing: 8th January, 1994. SHAFIUR RAHMAN, J.‑‑‑The petitioners seek leave to appeal against the judgment of the Lahore High Court dated 28‑7‑1992 whereby a Constitution petition filed by them challenging the bringing on record of the legal heirs of one Salamat Khan, co‑transferee of the predecessor‑in‑interest of the petitioners namely Nasir‑ud‑Din, was dismissed.

2. On a claim of one Nasir Ahmad with regard to a part of the property transferred to the predecessors‑in‑interest of the contesting parties jointly the proceedings were remanded to the Settlement Commissioner and were pending when Salamat Khan (predecessor‑in‑interest of respondents Nos. 2 to 4) died. A claim was made by his widow Mst. Shamim Begum and two minor children Karamat Khan and Mst. Nasreen Kausar to be brought on record as his legal heirs. The proceedings were contested before the Settlement Authority which allowed their being brought on record. This aggrieved the petitioners who considered them to be utter strangers and wanted that their claim be treated as legal heirs of Salamat Khan should be decided by Civil Court rather than the Settlement Authority. They challenged this order unsuccessfully in the Constitutional jurisdiction of the High Court. Hence this petition for leave to appeal.

3. The learned counsel for the petitioners has taken up two grounds for challenging the impugned order of the Settlement Authority. Firstly it is contended that there were no pending proceedings at all before the notified authority to be disposed of or dealt with. Secondly, it is contended that this matter was necessarily one which should have been decided by the Civil Court and not by the Settlement or the notified authority.

4. The reasons which prevailed with the High Court in not interfering with the finding of fact recorded by the notified authority finds mention in paragraph 4 of the impugned judgment, as hereunder:‑‑ "The plea raised by the petitioner before the Settlement Commissioner that Mst. Shamim Begum was keep of Salamat Khan and respondents Nos. 3 and 4 were illegitimate children born from this alleged illicit relation itself furnished strong evidence of unimpeachable character of conduct of Salamat Khan vis‑a‑vis Mst. Shamim Begum and respondents Nos. 3 and 4 to the effect that they had been living together in the manner that the husband and wife would live and gave birth to children which was sufficient to hold that they had been living as husband and wife because a person would not keep a woman with him who was not married to him continuously for a long time, co habitate with her and give birth to children openly unless they were husband and wife. This evidence of conduct further gets corroboration from the entries made in the Passport issued in favour of Mst. Shamim Begum in the year 1975 and in the name of Karamat Khan respondent No. 3 in which they have been recorded as wife and son of Salamat Khan deceased. These documents were issued prior to the death of Salamat Khan deceased during his lifetime. Apart from that a strong corroboration is also forthcoming from Form `B' submitted by Salamat Khan on 18‑2‑1978 as observed in the order dated 9‑5‑1981 of the Settlement Commissioner for the issuance of National Identity Card in which he specifically stated that Mst. Shamim Begum was his wife and respondents Nos. 3 and 4 were his children. This acknowledgement in writing by Salamat Khan of paternity is also sufficient under the law to hold that Mst. Shamim Begum was his wife and respondents Nos. 3 and 4 were his children."

5. We have examined with the assistance of the learned counsel the record relating to the proceedings before the Settlement/notified authority and rind that the conclusions drawn by it on a question of fact are not open to any objection on the legal plane. The High Court has re‑examined it and affirmed that conclusion.

6. It was certainly a proceeding pending before the Settlement Authority because the matter of transfer of a portion of the property was still under examination on remand from the High Court. On the death of Salamat Khan, while such proceedings were pending, it became necessary to bring on record the legal representatives of the deceased Salamat Khan, if any. In determining that question the battlement authority/notified authority discharged a duty which it necessarily had to discharge.

7. No case is made out. Hence, leave to appeal is refused. A.A./N‑366/S Leave refused.