2003 PLP 1576 (SCMR)

ABDUL HAMEED DOGAR, J.

This appeal, by leave of the Court, arises out of the impugned judgment, dated 13-2-1996 passed by learned Single Judge of the Lahore High Court, Lahore, whereby Writ Petition No.60-R of 1995 filed by the appellant was dismissed.

2. Leave to appeal was granted on 23-2-1997 to consider whether the shops bearing Nos.B-682, B-683 and B-684 were constructed and owned by Chander Parkash evacuee and as such were evacuee properties.

3. Briefly, stated the facts leading to the filing of instant appeal are that property in dispute comprising Shops Nos.B/682, B-683 and B-684 was transferred to the appellant on 15-2-1986 and T.O. was issued on 27-3-1986 being an evacuee property. It was originally owned by one Muhammad Boota who had sold the land measuring 2 Kanals to one Chander Parkash vide registered sale-deed, dated 16-9-1932. The said evacuee got the demarcation of the property from the Revenue Authorities on 12-8-1933 and mutation was duly got attested. Thereafter, Chander Parkash constructed 16 shops bearing Nos.B/681 to B/696, out of which, Shops Nos.B-682, B-683 and B-684 are the subject-matter of the dispute in this case.

4. Abovesaid shops were declared as evacuee property and were put to auction on 29-11-1960 and subsequently were transferred to different persons under the Evacuee Laws. These orders were challenged in Writ Petitions Nos. 905/R and 911/R of 1965 by the predecessor-in interest of the appellant. The above mentioned writ petitions were disposed of on 29-9-1971 remitting the case to the Settlement Commissioner who vide order, dated 17-4-1976 further remanded the case to the Deputy Settlement Commissioner who passed the order, dated 24-3-1977 and held that demarcation of the land had been done by the Revenue Authorities on 2-2-1933 and mutation was also approved by the then Deputy Commissioner on 19-9-1933 and it- was from his demarcation, the properties in question had been transferred under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The order was challenged in Writ Petition No.. 1421/R/77 before the Lahore High Court, Lahore, which was maintained, vide order, dated 18-4-1983. Mumtaz Hussain, the predecessor-in-interest of respondents Nos.3 to 6 and others, challenged the said order before this Court in Civil Petition for Leave to Appeal No. 975 of 1983 which was dismissed on 8-11-1988. This Court also dismissed the review petition on 17-4-1989.

5. On 9-5-1991 Mumtaz Hussain predecessor-in-interest of respondents Nos. 3 to. 6 filed revision petition against the order, dated 15-2-1986 passed by respondent No. 2 Deputy Administrator, Evacuee Residual Property/D.S.C., Gujranwala, which was accepted on 11-7-1994 and the order, dated 15-2-1986 whereby the shops were transferred in the name of appellant Muhammad Aslam was set aside. During the pendency of that matter, Mumtaz Hussain died and his legal heirs, namely, the respondents were impleaded in this case. Appellant Muhammad Aslam feeling dissatisfied challenged the above order in Writ Petition No. 60(R)/95 which was dismissed vide the impugned order.

6. We have heard Ch. Hafeez Ahmad, learned Advocate Supreme Court for the appellant and Mr. M.A.Zaidi, learned Advocate-on-Record for the respondents and have gone through the record and proceedings of the case in minute particulars.

7. Learned counsel for the appellant mainly contended that the shops in dispute were built on an evacuee property and were rightly transferred to the appellant. According to him, Chander Parkash evacuee had purchased two Kanals of land from Muhammad Boota co-sharer in Khata out of Khewats Nos. 11 and 33 in Mozah Wazirabad through sale deed, dated 16-9-1932. He got demarcation of the land from Revenue Authorities and after approval from Deputy Commissioner, Mutation No. 1248 was sanctioned in his name on 19-9-1933 whereupon he constructed many shops including the shops in dispute. He further contended that the order, dated 24-3-1977 passed by the Deputy Settlement Commissioner, Gujranwala, was upheld in Writ Petition No.1421(R)/77 and in Civil Petition for Leave to Appeal No.975 of 1983 which attained finality and could not have been reopened. He contended that the Deputy Settlement Commissioner, Gujranwala, had rightly passed the order transferring the shops in question to the appellant. He vehemently attacked the revision filed before the Additional Commissioner Revenue by Mumtaz Hussain, predecessor-in-interest of respondents Nos.3 to 6 on the ground that the same was filed belatedly i.e. on 9-5-1991 against the order, dated 15-2-1986 whereas the period of limitation was 15 days only. The Revenue Authorities cannot override the findings of the superior Courts are bound to implement the orders of superior Court whereby the entire property bearing Nos.B-681 to B-696 was declared evacuee property and was put to auction and the predecessor-in-interest of respondents Nos.3 to 6 has failed to prove that the same were not evacuee property thus they had no locus standi in the matter. He argued that the dispute before the Custodian was not with respect to the land owned by Rehmatullah and Muhammad Abdullah which was taken on lease by Rai Bahadur Hukem Chand for a period of 20 years on 6-3-1932 but was in respect to the property in dispute owned and possessed by Muhammad Boota, a joint owner with Rehmatullah and Muhammad Abdullah. He further argued that the appellant is in possession of the shops in dispute in his own right which was rightly transferred to him on the basis of permanent transfer order. He lastly contended that the learned High Court has also misread and misinterpreted the documents in evidence on record and also completely ignored the order of custodian thus the same is not sustainable in law.

8. On the other hand, learned counsel for the respondents contended that according to the Register Haqdaran Zamin 1955-56, 1959-60, 1963-64, 1982-83 and 1987-88 and demarcation report of the Field Staff, Wazirabad, dated 20-8-1985, the disputed shops were, situated in old Khasra Nos. 6993/193 and 6994/6146/194/i/1 (Jadid Khasra No.241). According to Khewat No.33, the disputed shops were exclusively owned by Muslim owner Muhammad Abdullah and Rehmatullah from whom Mumtaz Hussain, predecessor-in-interest of respondents Nos.3 to 6 purchased the same through registered sale-deed, dated 22-11-1952. Previously the same land was leased out by Rehmatullah and Muhammad Abdullah to Hukem Chand for 20 years and after expiry of the lease period the same reverted to Mumtaz Hussain and he stepped for into their shoes thus the land was not evacuee and was not available for allotment/auction and the Rehabilitation Department was authorized only to remove superstructures raised on the land. He supported the order, dated 11-7-1994 passed by the Deputy Settlement Commissioner and impugned judgment which according to him, are based on cogent reasons.

9. Admittedly, there are concurrent findings of fact recorded by respondent No. 1 (Notified Officer) and the learned High Court on the factum that the shops in question are non-evacuee property and constructed on the land owned by Muslims. Further elaborating, it has been maintained by both Courts below that it was Rehmatullah and Muhammad Abduilah who leased the land in question to evacuee. Hukem Chand in 1932 for 20 years which expired in 1952. Mumtaz Hussain etc the predecessor-in-interest of respondents purchased the said land from Rehmatullah and Muhammad Abdullah the original owners of the land. Thus on expiry of the lease, they stepped into the shoes of the Muslim owners. The contention of the learned counsel for the appellant that Chander Parkash evacuee purchased 2 Kanals of land from Muhammad Boota co-sharer in Khata through registered sale-deed on 16-5-1932 and got demarcation of the land from Revenue Authorities and the disputes land came to his share upon which he constructed the shops in question including the other shops has not been established on record and is merely speculative being without any substance.

10. It is well-settled principles of law that this Court is always reluctant to interfere with the concurrent findings of fact recorded by the lower Courts. It can only be interfered with if the same are found illegal, contrary to the record or where gross miscarriage of justice has occurred due to non-reading or non-appraisal of evidence.

11. Learned counsel for the appellant could not refer to any of the aforesaid disqualifications.

12. For the reasons stated above, we do not find, any justification to interfere with the impugned judgment which is accordingly maintained. The appeal being devoid of force is dismissed with no order as to costs. M.B.A./M-860/S Appeal dismissed.