1976 PLP 257 (SCMR)

MUHAMMAD AFZAL CHEEMA. J.

‑Feeling aggrieved by the order of a learned Judge of the Lahore High Court, dated 20‑9‑1974 by which his Writ Petition No. 518‑R of 1974 was dismissed, the petitioner who is a local resident of Rawalpindi, seeks leave to appeal. The dispute relates to a few marlas of evacuee residential Property No. NE‑534‑A, situate in Sultanpura locality of Rawalpindi. It was purchased in the first instance by one Hussain Ahmad who is not a party to this litigation on 31‑5‑1966 in an open auction for Rs. 4,

500. On his default, it was resumed by the Department on 15‑8‑1970. The petitioner being in possession of a Portion of the property filed a delayed LH Form on ts‑2‑1972 seeking its transfer under Settlement Scheme No. VIII after condonation of delay by the Additional Settlement Commissioner. On 22‑2‑1972, the Deputy Settlement Commissioner transferred to the petitioner the portion in his possession and ordered the disposal by auction of the remaining portion of the house which was in possession of two other local residents, Abdul Karim and Roshan Khan who having initially sought the transfer did not pursue the matter. P. T. D. was issued to the petitioner on 8‑3‑1973. It appears that earlier on 19‑5‑1956, treating the same property as an agricultural piece of land, the Deputy Settlement Commissioner (Lands) bad allotted it to one Ishtiaq Ali on 2.3‑1968. It is in evidence that after raising some construction on it, Ishtiaq Ali sold it in turn to Abdul Malik respondent on 25‑2‑1969. The sole question arising for determination in this litigation before the Settlement Authorities was as to whether the property in question was urban residential property or alternatively, it was an agricultural piece of land to be dealt with by Land Settlement Authorities. It was consistently held by the authorities below including the High Court that having already been transferred as a piece of agricultural land in 1956, the disputed portion was no longer available for transfer to the petitioner under Settlement Scheme No. VIII. In support of the petition, learned counsel contended before us that the disputed property could not be treated as land in terms of section 2(3) of the Displaced Persons (Land Settlement) Act, that the determining factor in this regard was the use to which the property was put at the time of partition as held in Nafeesa Bano and others v. Chief Settlement Commis sioner, West Pakistan, Lahore and another (P L D 1969 Lah. 480), and that the authorities below had ignored the record of the Excise and Taxation Department. Annexure "A" by which the same property had been treated as a residential property assessable to property tax. It was next submitted that P. T. D. having been once issued in favour of the petitioner, it could not be cancelled unless it was shown that transfer was secured by fraud or misrepresentation as held by this Court in Aminuddin v. Settlement Commissioner and others (1973 S C M R 624) and Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another (1974 S C M R 8). Having heard the learned counsel quite at some length, we are not per suaded to hold that a legal point of public importance is involved in the matter so as to justify this Court's interference. Learned counsel had to concede that in the copy of the Register Haqdaran, for the year 1946‑47 Annexure "1" an area of 10 kanals and 14 marlas in Khasra No. 423 was treated as an agricultural piece of land. Again in the R. L. II Register, Annexure "L", the same property was treated as agricultural piece of land. Assuming as contend ed by Mho learned counsel on the basis of an extract from Excise and Taxation record Annexure "A", the construction was not raised by Ishtiaq Ali but had already existed in the year 1945‑46, this construction on a small fraction of the total agricultural area measuring l0 kanal' and 14 marlas could not on a reasonable interpretation be construed so as to change its entire complexion. The identity of the land is not disputed. It further stand established beyond doubt that Ishtiaq Ali had purchased it in 1966 from Imtiaz Ali its original allottee by means of a registered sale deed as a piece of agricultural land. Having once been treated as such, it was no longer available to 1972 for allotment to the petitioner who is a local resident under Settlement Scheme No. VIII. No fault can, therefore, be found with the view taken by the Courts below after taking into consideration the relevant documentary evidence. Surely it is not the function of this Court to embark on re-appraisement of evidence. Even otherwise, we are convinced that technicalities apart this is a matter in which substantial justice has been done. The petition is accordingly dismissed. Petition dismissed.