1987 PLP 76 (SCMR)

Date of hearing: 8th November, 1986. MUHAMMAD AFZAL ZULLAH,J.‑‑Leave to appeal has been sought from judgment, dated 5‑5‑1984 of the Lahore High Court; whereby respondents' Letters Patent Appeal which had arisen out of an urban settlement matter, was allowed. In a dispute relating to the identity, character and extent of the properties in dispute‑‑House No.7 and House No.8, a learned Single Judge allowed the petitioners' Constitutional petition. He passed an order of remand. for further inquiry and examination of specified records. The observations which led to that order are as follows: "The disputed question of fact in this case is as to what consists of House No.H/7 and what comprises Property No.H/8. In coming to the conclusion, which the Settlement Commissioner did, he has based his finding on the excerpts from the registers maintained by the Excise & Taxation Department and the factum of possession of the respondents, in the property. Admittedly, the two houses are separate distinct properties belonging to different evacuees. It was strenuously argued on behalf of the respondents that finding of fact which has been arrived at by the Settlement Commissioner is conclusive and is not subject to scrutiny or judicial review by this Court under Article 98 of the Constitution of Islamic Republic of Pakistan. I am afraid, I cannot agree with the submission made for the simple reason that in this case irrelevant evidence has been taken into consideration in coming to the conclusion to which the Settlement Commissioner arrived, namely, the possession of the respondents in the building after partition. He has not examined the municipal record or the record of the Patwari to find out the extent of the two properties which is the most relevant evidence in such a decision. No doubt a finding of fact arrived at by Tribunal of conclusive jurisdiction is binding on this Court if the evidencing which has to be taken into consideration, is taken and the Tribunal has not relied on evidence which is not to be taken into account. But where the Tribunal acts in any other manner, namely, that it misreads or excludes the relevant or necessary evidence from consideration and relies on evidence which is not to be relied, for a particular finding of fact, then that finding of fact cannot be sacrosanct and surely cannot escape the judicial review of this Court under Article 98 of the Constitution. In this view of the matter, the decision of the learned Settlement Commissioner is quashed and the case is remanded back to the Settlement Commissioner who will look into the municipal record and any other record of right, which can establish the extent of ownership of the two evacuee owners of these properties. Therefore, he will decide the case of entitlement of the parties in accordance with law." On respondents' letters Patent Appeal the learned Judges of the Division Bench observed as follows: "Here the appellants' contention was that H‑7 and H‑8 were fused into each other needing a line of demarcation which was carved out by the Settlement Authorities after local inspection. The respondents in their writ petition dubbed the relevant order either confusing the situation or making it worse confounded. They sarcastically described the dividing line as laid down by the Additional Settlement Commissioner to he zig‑zag. The reason for laying it down in zig‑zag manner was that the two properties were interjecting into each other. It was, therefore, wrong to suggest that these were two separate, water‑tight, mutually exclusive properties needing no demarcation. The division had to be zig‑zag, though not to the liking of the respondents. The dicta laid down in the two cited cases amply applied and the demarcation so laid down could not be interfered with in writ jurisdiction. " After hearing the learned counsel we consider it a fit case for examination whether the Letters Patent Appeal was competent; and, whether there was enough justification for interference with the judgment of the learned Single Judge. Security Rs.2

500. Municipal records and other records of rights to be summoned so as to be available at the time of hearing of the appeal. The Advocate on‑Record of the appellant shall be asked to furnish the particulars of those records. The respondents A.O.R. shall also 'be at liberty to summon similar records. M. I. Leave granted.