1988 PLP 1046 (MLD)

Through this Constitutional Petition Mian Abdul Aziz and others, the legal heirs of Mst. Khurshid Ishrat, the petitioners want this Court to declare the order dated 7‑2‑1984 of Deputy Settlement Commissioner/Notified Officer, respondent No.1, to be without lawful authority and of no legal effect.

2. The facts leading to this petition (as stated by the learned counsel for the petitioners) briefly are that Mst.Khurshid Ishrat, predecessor‑in‑interest of the petitioners was a claimant from East Punjab. She occupied a plot of land measuring 4 kanals, 17 marlas and 67 sq. ft. situate in Ichhra, Lahore in the year, 1956. She raised construction on major portion of the plot. On 1‑12‑1959, she filed an application alongwith B.S. Form for the transfer of this plot which was registered at diary No.2348. On 19‑4‑1960, she made another application wherein reference to earlier application dated 1‑12‑1959 was made. This application was entered at Sr.No.1903. On 23‑2‑1961 she sent third application under postal receipt. The Deputy Settlement Commissioner issued notice of appearance to Mst.Khurshid Ishrat and also called for report from Settlement Inspector with regard to the physical possession of Mst.Khurshid Ishrat on the site and construction raised thereon by her. On the report of the Settlement Inspector that Mst.Khurshid Ishrat was entitled to an area measuring 3 kanals, 17 marlas and 55 sq. ft, the Deputy Settlement Commissioner transferred this area to her on 19‑9‑1963 and letter of transfer was issued on 20‑9‑1963. Mst.Khurshid Ishrat paid Rs.60,600 as price of the plot on 30‑3‑1973. Muhammad Din respondent who was occupying the part of the premises as a tenant under Mst.Khurshid Ishrat, filed appeal against the order dated 19‑9‑1963 of Deputy Settlement Commissioner whereby plot measuring 3 kanals, 17 marlas and 55 sq.ft. was transferred to her. The appeal was allowed on 20‑10‑1975 and the case was sent back to Deputy Settlement Commissioner for rehearing. Against this order Mst.Khurshid Ishrat filed writ petition which was dismissed on 27‑7‑1977. She then filed petition for special leave to appeal which was also dismissed on 22‑4‑1978. Ghulam Muhammad respondent was inducted as tenant in one of the three quarters constructed by Mst.Khurshid Ishrat in 1976. He defaulted in payment of rent, so ejectment proceedings were initiated against him. The Rent Controller, Lahore allowed the ejectment application on 23‑1‑1976. The appeal filed by Ghulam Muhammad .was dismissed on 28‑10‑1976. The SA.O. filed by him was dismissed on 12‑11‑1976. Ghulam Muhammad respondent No.3 also approached Settlement Authorities for the transfer of quarter to him. The Deputy Administrator (Residual Properties) transferred 6 marlas and 160 sq.ft. to him on 5‑5‑1982. The revision filed against this order was accepted by Administrator (R.P.) on 27‑10‑1983 and the matter was remanded to Deputy Administrator (R.P.) for deciding afresh. On remand, the Deputy Settlement Commissioner, respondent No.1. inspected the site, recorded evidence, examined the documents produced by the parties and vide impugned order dated 7‑2‑1984 found eh, petitioners entitled to the transfer of 1 kanal, 17 marlas and 35 sq.ft. in possession of Muhammad Azam, Mushtaq Ahmad, Abdul Rehman, Muhammad Sarwar, Ashfaq Minhas and the area over foundation filled/khasra No.7231‑Min and 7231/1‑Min. He. found Muhammad Din respondent entitled to the transfer of an area 1 kanal, 7 marlas and 157 sq.ft. which was in his possession bearing khasra No.7230‑Min and 7231‑Min. He found Ghulam Muhammad respondent in association with Nasira Nawaz respondent entitled to the transfer of 6 marlas and 160 sq.ft. bearing Khasra No.7231‑Min and 7231/1‑Min. As for the area in possession of Muhammad Yaqoob respondent, the Deputy Settlement Commissioner declared this area to be available and his form to be taken up for disposal, hence this petition.

3. Learned counsel for the petitioners contended that the finding of the Deputy Settlement Commissioner, respondent No.1 that Mst.Khurshid Ishrat was never transferred 3 kanals, 17 marlas and 55 sq.ft. of land, suffers from infirmities such as non‑reading/misreading of material evidence and documents. He argued that the learned Deputy Settlement Commissioner had not considered following documents: (i) Application dated 1‑12‑1959 filed by Mst.Khurshid Ishrat for the transfer of plot in question; (Annex.`A'). (ii) Another application (Annex.`B') dated 19‑4‑1960 in which there was a reference of the earlier application dated 1‑12‑1959. (iii) Notice (Annex.`C') dated 27‑8‑1962 issued by D.S.C. (iv) Another notice (Annex.`D') dated 17‑8‑1963. (v) Copy of the order dated 19‑9‑1963 of Deputy Settlement Commissioner (Annex.`E'), i.e. order of transfer. (vi) Memo dated 20‑9‑1963 of transfer issued by Deputy Settlement Commissioner (Annex.`F) in favour of Mst.Khurshid Ishrat. (vii) Report made by Deputy Settlement Commissioner on .1‑:‑1969 in which the order of transfer in favour of Mst.Khurshid Ishrat had been acknowledged. (viii) Deposit of Rs.60,600 by Mst.Khurshid Ishrat as sale price (Annex.`M'). (ix) Direction given by Settlement Authorities for the deposit of this amount (Annex.`GG'). (x) Statement of Mr. Nisar Ahmad Durani, Settlement Commissioner who testified the transfer of plot in favour of Mst.Khurshid Ishrat (AnneX.`DD/3'). (xi) Statement of Mr. Anwar Khan, Deputy Settlement Commissioner (Annex.`DD/4'). (xii) Rent note dated 23‑12‑1960 and admissions made by Muhammad Din respondent and his attorney Nazir Ahmad. (xiii) Order of Rent Controller dated 23‑1‑1976 (Anne"'). (xiv) Order of Addifonar District Judge dated 2R‑10‑19 76 (Annex.`Y'). (xv) Order of the High Court in SA.O. dated 12‑11‑1976 (Annex.`!'). (xvi) Statement of Mst. Razia (AnneX.`DD/5'). (xvii) Statement of Muhammad Yaqoob respondent (Annex.II). (xviii) Copy of assessment record (Annex.`JJ'). Learned counsel for respondents Nos.2, 3 and 5 has supported the impugned judgment. He maintained that the Deputy Settlement Commissioner has taken into account all the relevant and admissible documents and has also complied with the directions given by the Settlement Commissioner and the Supreme Court; that the petitioners have not approached the Court with clean hands; that the writ petition suffers from! laches and that no wrong assumption was drawn by the Deputy Settlement Commissioner.

4. I have anxiously attended to the elaborate arguments, of the learned counsel for the parties and have reviewed the entire evidence and documents on the file. The operative part. of order dated 20‑10‑1975 of the Settlement Commissioner that; "I have gone through the' entire record of the Office of the Deputy Settlement Commissioner as well as the record requisitioned from the Head Quarters Office, but have not been able to find any form filed by Mst.Khurshid Ishrat or. any original transfer order of the plot to Mst.Khurshid lshtat of the Deputy Settlement Commissioner (Plot)". and the concluding observations made by the Supreme Court in order dated 22‑4‑1978, that; "Moreover, an inquiry does appear to be necessary to determine the questions; such . as, the exact areas in possession of the parties, the constructions raised by them and the nature of forms‑submitted by them for transfer of the plot in dispute. We are, therefore, not inclined to interfere with the order of the High Court dated 27‑7‑1977 refusing to set aside the order of the learned Settlement Commissioner dated 20‑10 1975." read there remains no room for doubt that the Deputy Settlement Commissioner respondent had try decide the entitlement of the parties afresh in the fight of the observations reproduced above. On remand the panics produced oral evidence and &:f) tendered photostat/certified/true copies of documents and orders of Settlement Authorities Rent Controller/High Court/Supreme Court. Since for the transfer of evacuee plot to Mst.Khurshid Ishrat, her possession and constructions raised thereon by her were/are essential conditions, therefore, the learned Deputy Settlement Commissioner had inspected the site in the presence of the parties to verify the possession and constructions raised by them. On the strength of oral as well as documentary evidence relevant to the controversy between the parties and the site inspections, the learned Deputy Settlement Commissioner came to the conclusion that the petitioners were eligible for the‑transfer of 1 kanal 17 marlas and 35 sq.11. and the area over foundation filled in Khasra No.7231‑Min and 723!/1 min' The petitioners' ca‑3e was that Mst.Khurshid Ishrat was in possession of the disputed plot; that she had raised construction thereon; that she had filed B.S. Form on 27‑11‑1959; that she was transferred plot measuring 3 kanals, 17 marlas and 55 sq.ft. vide order dated 19‑9‑1963 of the Deputy Settlement Commissioner; that letter of transfer‑was issued to her on 20‑9‑1963; that she had paid price of the Plot in the year 1973 and that Muhammad Din and Ghulam Muhammad respondents were occupying quarters constructed by Mst.Khurshid Ishra as her tenant . On the assessment of the material available before him, the Deputy Settlement Commissioner was of the view that Mst.Khurshid Ishrat was never in possession of an area of 3 kanals 17 marlas and 55 sq.ft. nor she had raised construction thereon and that this plot was never transferred to her and that the copy of the order of transfer dated 19‑9‑1963 of 3 kanals, 17 marlas and 55 sq.ft. in her favour was a fake document, therefore, the price memo issued by the Settlement Authorities in pursuance to the take order was not of much help to her. The Deputy Settlement Commissioner further held that the area under occupation of Muhammad Din, Ghulam Muhammad and Muhammad Yaqoob was never transferred to Mst.Khurshid Ishrat and no construction was raised by her on this area. From the aforesaid state of affairs, it is very much obvious that the order dated 19‑9‑1963 of Deputy Settlement Commissioner (photostat copy whereof has been placed on record), whereby 3 kanals, 17 marlas and 55 sq.f1. were transferred to Mst.Khurshid Ishrat is the pivotal document and the fate of the claim of the petitioners mostly depends upon the genuineness of this order. . The case was dealt with by different Officers of Settlement Department. Syed Walayat Ali Bokhari, the then Settlement Commissioner on the examination of the entire record of the Office of the Deputy Settlement Commissioner as well as record requisitioned from Headquarters Office, could not find B.S.Form allegedly submitted by Mst.Khurshid Ishrat and the original transfer order dated 19‑9‑1963 of the transfer of 3 kanals, 17 marlas and 55 sq.ft. to Mst.Khurshid Ishrat. On remand, the Deputy Settlement Commissioner, respondent No.1 has declared the copy of the order dated 19‑9‑1963 to be fake. Neither the original order dated 19‑9‑1963 nor certified copy thereof was annexed with this petition nor has been shown to me during arguments. There is no primary evidence of the submission of B.S.Form by Mst.Khurshid Ishrat. The learned counsel has relied on the documents detailed in para 3 of the judgment to contend that Mst.Khurshid Ishrat had filed B.S.Form on 1‑12‑1959; that she was in possession of an area measuring 4 kanals, 17 marlas and 67 sq.ft.; that she had raised construction on this area; that an. area measuring 3 kanals, 17 marlas and 55 sq.ft. was, in fact, transferred to her vide order dated 19‑9‑1963 and that Muhammad Din and Ghulam Muhammad were occupying quarters raised by Mst.Khurshid Ishrat as her tenants. It may be noted here that the documents relied on by the learned l counsel for the petitioner are photostat copies of applications, orders and documents. No case for receiving secondary evidence has been made out by him. The petitioners have not brought on file of this petition the certified copies of the documents relied upon by them. Neither original B.S.Form filed by Mst.Khurshid Ishrat nor adequate proof of the submission of the same was furnished before the Settlement Authorities. There is nothing on record to show that the construction over the area occupied by Muhammad Din and Ghulam Muhammad, etc. was raised by Mst.Khurshid Ishrat. The impugned order shows that the Deputy Settlement Commissioner had gone through the entire evidence and the material before him carefully. He had also inspected the site to verify the physical possession of the parties and the constructions raised by them. His findings are l based on evidence available before him. He has applied his conscious mind to the evidence and the documents. He has considered the litigation between the parties before the Rent Controller as well as the orders passed by the Settlement Commissioner, High Court and the Supreme Court. The impugned order shows that the Deputy Settlement Commissioner had considered all the relevant and admissible documents before him. The documents and orders etc., which according to the learned counsel for the petitioners were not considered by the Settlement Commissioners were mostly uncertified/photostat copies, which being not admissible in evidence could not have been looked into by him. The Annexures 'A, B, C, D, E, F, I, M, X, Y and Z being photostat copies are net ‑admissible. The petitioners have not cared to place on record the original on certified copies thereof on the file of this petition. The conclusion arrived at by the learned Deputy Settlement Commissioner is based on materiel available on record which was before him and it cannot be said that his findings are not founded upon anything appearing in the true facts of the case or upon any valid reason or logic. This Court while exercising its constitutional bower will be reluctant to interfere with the orders impugned before it, even though upon the evidence on record and facts and circumstances of the case, this Court might well have come to different conclusion, if it was trying the same. The learned Deputy Settlement Commissioner has not flouted the provisions of relevant law. He has given sound and cogent reasons in support of the conclusion arrived at by him. I do not see any legal infirmity in his judgment. The submissions made by the, II learned counsel do not make out a case for interference with Well‑reasoned judgment of the Deputy Settlement Commissioner, respondent No.1,. For what has been said above, there being no merit, the petition is dismissed, leaving the parties to bear their own costs. AA./A‑336/L Petition dismissed.