1989 PLP 1028 (SCMR)

SAAD SAOOD JAN, J.‑‑This appeal by special leave is from the judgment, dated 7‑5‑83 of the Lahore High Court whereby the second appeal of the appellant from the judgment of the District Judge, Jhelum, was dismissed.

2. There are a number of contiguous godowns in the old Ghalla Mandi in Chakwal of District Jhelum. These godowns were evacuee property and were disposed of by the Settlement Authorities through a public auction. The appellant purchased godowns numbers 22‑B, 24 and 45‑A. The respondent also purchased a number of godowns including one bearing No.23. The dispute between the parties relates to a godown which is in the possession of the respondent. According to the appellant, the said godown bears No.24 and is one of those which were purchased by him. On the other hand, the case of the respondent is that the godown in question bears No.23 and had been purchased by him.

3. In 1969 the appellant made an application to the Martial Law authorities. A copy of the application has not been placed on the record. However, that may be, the Martial Law authorities sent the application to the office of the Deputy Settlement Commissioner, Jhelum, for disposal. Under the direction of the accountant in the office, a Settlement Inspector visited the spot to carry out a demarcation of the respective properties of the parties. According to his report, the godown in dispute stood transferred to the appellant. Apparently, the respondent did not accept the report of the Settlement Inspector whereupon the appellant filed a suit for possession of the godown.

4. The suit was resisted by the respondent who denied that the godown in dispute had been transferred to the appellant. The parties went to trial on a number of issues and led evidence in support of their respective claims. The learned trial Court relied on the report of the Settlement Inspector and decreed the suit. The respondent filed an appeal before the District Judge. After reappraising the evidence the learned District Judge took the view that the report of the Settlement Inspector was not worthy of reliance and that the other evidence on record did not support the case of the appellant. Accordingly, he accepted the appeal, set aside the judgment and decree of the trial Court and dismissed the suit. The appellant filed an appeal in the High Court. A learned Single Judge after reviewing the evidence affirmed the findings of the District Judge. Accordingly, he dismissed the appeal.

5. The main prop of the case of the appellant is the report of the Settlement Inspector. It is contended on his behalf that after the Settlement Inspector had carried out a demarcation, it was not open to the Civil Court to question its validity. In the circumstances of this case, it is difficult to accept this contention. It is in evidence that at the relevant time, Mr. Azhar Hussain was holding the post of Deputy Settlement Commissioner in District Jhelum and Mr. Khurshid Khan was an accountant in his office. When the application of the appellant which he had made to the Martial Law authorities reached the office of the Deputy Settlement Commissioner, it was Mr. Khurshid Khan and not Mr. Azhar Hussain who directed the Settlement Inspector to carry out the demarcation. The record does not show that in the presence of Mr. Azhar Hussain, Mr.Khurshid Khan was competent to order a demarcation. It is also established on the record that before visiting the spot the Settlement Inspector did not give any notice to the respondent and that the demarcation was carried out in his absence. The learned District Judge also found that in the report prepared by the Settlement Inspector there were a number of cuttings and overwriting. That being so, the report produced before the trial Court could not be described as the one which was initially submitted by the Settlement Inspector. In any event, the demarcation carried out by the Settlement Inspector was illegal as it was not prepared in pursuance of the order of a competent authority or after notice to a party who had an interest in it.

6. The question whether the Civil Courts had jurisdiction to interfere with the demarcation made by the Settlement Inspector does not arise in this case, for, as already pointed out, the proceedings conducted by the said official were entirely illegal. In support of his case, learned counsel for the appellant has referred to two decisions of this Court reported as Muhammad Bashir v. Mst. Nasiran 1987 S C M R 999 and Maqbool Ahmad v. Settlement and Rehabilitation Commissioner P L D 1983 S C

337. These decisions are easily distinguishable.

7. For the reasons stated above, we find no merit in this appeal which is hereby dismissed. There will be no order as to costs. A.A./M‑747/S ??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.