1986 PLP 1457 (SCMR)

‑‑‑‑Ss. 10 & 11‑‑Cancellation of allotment obtained in excess of entitlement‑‑Retention of excess area‑‑Claim on basis of mortgage units‑ Plea that petitioner was entitled to retain land which was found in excess of his entitlement on basis of mortgage units, repelled‑‑Allotment of excess land to petitioner would not be treated as having been confirmed in his favour‑‑Petitioner having lost all rights in excess area as ultimately determined by High Court, had no locus standi to challenge its allotment to respondent and that too in pursuance of High Court's decision in Letters Patent Appeal. Ch. Khan Muhammad Bajwa and Abdul Karim, Advocate‑on‑Record for Petitioner. M. Anwar Sipra, Advocate and M.A, Qureshi, Advocate‑on‑Record for Respondent No.

1. Nemo for Respondents Nos. 2 and

3. Date of hearing: 10th February, 1981. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment, dated 3‑5‑1980, of the Lahore High Court whereby a Constitutional petition arising out a land settlement case was dismissed. The facts, as summarised by the learned counsel, are that the petitioner had a verified claim for 1548 P.I. Units against which land was confirmed in his name on 30‑12‑1951. Subsequently, it was found that the allotment was in excess of his entitlement, therefore, an area of 45 Kanals 14 Marlas was cancelled from his name on 22‑4‑1959, The petitioner filed appeal/revision against the cancellation but without any success. He then moved Writ Petition No. 789‑R of 1963, which was partly allowed. Respondent No. 1, who had in the meanwhile obtained the allotment of the land cancelled from the petitioner's name filed a Letters Patent Appeal in the High Court, which was partly allowed on 17‑1‑1975. It was held that the petitioner was entitled to 1305 nits. Accordingly, it was directed that the allotment of land to this extent shall, therefore, "remain confirmed" in his favour, while the remaining land will be dealt with in accordance with law. The petitioner, according to the learned counsel, became entitled to 331 additional mortgagee Units in connection with which he had made a payment of Rs.3,166 towards penalty, interest, etc. on 10‑2‑‑1975 and thus he was entitled to further allotment of land to the extent of 45 Kanals 13 Marlas. A mutation was, at it is claimed, also entered in this behalf but the field authorities were directed to implement the decision of the High Court in the Letters Patent Appeal referred to above. This was done ova 24‑‑7‑1975. The petitioner feeling aggrieved filed Writ Petition No. 963‑It of 1975 which having been dismissed on 3‑5‑1980, he has sought leave to appeal. Learned counsel contended: that the petitioner was entitled to retain the land which was found in excess of his entitlement on the basis of mortgagee Units; that the petitioner had not raised the plea noted by the learned Single Judge of the High Court in the impugned judgment to the effect that he was entitled to purchase the excess land under Policy Letter No. 2195‑62/3794‑R (L), dated 18‑5‑1962. In this behalf he stated that the point regarding mortgagee Units was taken in the writ petition but it is not mentioned in the impugned judgment; that even if it be assumed that the petitioner urged only one point in the High Court with regard to the purchase of the excess area, his case is covered by the Policy Letter. (He did not satisfy the target date mentioned in the Policy Letter though the learned counsel in this behalf stated that the petitioner retained the possession and also saved his entitlement); that even if the decision in the Letters Patent Appeal was to be implemented the excess area could not have been taken away from the petitioner. We regret, the statement of the learned counsel‑that the Policy Letter, dated 18‑5‑1962 for purchase of the excess land was not relied upon on behalf of the petitioner before the learned Single Judge in the High Court, cannot be accepted. The statement of fact recorded in the impugned judgment in this behalf which contradicts the learned counsel shall not be ignored. In fact when a learned Judge of the High Court records a fact about proceedings before himself in an order, it is not possible to ignore it in the manner suggested by the learned counsel. Mere fact that a certain ground was taken in the writ petition but a different one is noted in the judgment as having been urged during the hearing, would not show that the statement of fact recorded in the High Court's judgment is incorrect. Accordingly, we hold that the point with regard to mortgagee Units now being pressed was not urged before the High Court at the time of the hearing of the writ petition. There is no justification to permit the same to be agitated now in support of this petition. The decision in the Letters Patent Appeal is clear to the effect that the allotment of land in excess of 1305 Units to the petitioner would not be treated as having been confirmed in his favour, That being so, the excess so determined will be deemed to have remained out of the confirmation made in favour of the petitioner in 1951. Although a formal cancellation took place in 1959 and thereafter allotment was made to respondent No.1, the fact remains that according to the decision in the Letters Patent Appeal, the petitioner lost all rights in the excess area as ultimately determined by the High Court, if not earlier at best from the date of the cancellation ordered in 1959. He, therefore, had no locus standi to challenge its allotment to respondent No. 1, and that too in pursuance of the High Court's decision in Letters Patent Appeal. Thus, there is no force in the last contention of the learned counsel either. This petition has no force and the same is dismissed. M.I. Petition dismissed.