P L D 1976 Karachi 771 (PLP)

These four contentions raised before the Deputy Settlement Commissioner, were, however, not gone into on the ground that they stood decided by the order of his predecessor on 8th July 1966. Mst. Akbari Begum challenged this order of the Deputy Settlement Commissioner before the Settlement and Rehabilitation Commissioner, Hyderabad on the main findings whether she or the present petitioner had preferential rights to inherit the property of Mujibuddin. The learned Settlement Commissioner by his order dated 16-9-69 concluded that Mst. Akbari Begum being the grand-daughter of Mujibuddin had preferential right to that of Mst. Anwari Begum the present petitioner. This gave a cause of a grievance to Mst. Anwari Begum who has challenged these findings in the present petition. At the outset it may be noted that Mr. K. A. Ghani the learned counsel for the petitioner, conceded the legal position that if Mst. Asghari Begum, daughter of Mujibuddin had not pre-deceased her father, and if Akbari Begum is the daughter of Asghari Begum she would have precedence under the Muhammadan Law, in the matter of inheritance of Mujibuddin's property. But he claims that the petitioner's case has all along been that Mst. Asghari Begum bad predeceased her father by 4/5 years, and that even if she bad not predeceased her father Mst. Akbari Begum was not the daughter of Mst. Asghari Begum. He further contends that this plea of the petitioner was not taken account of by the learned Settlement Com missioner and not having done so he has failed to exercise the jurisdiction vested in him in terms of the law laid down by the Supreme Court in Latif Hussain v. Chief Settlement Commissioner (P L D 1965 S C 68). In this regard he has taken exception to the observations made by the learned Settlement Commissioner in the last paragraph which is to the following effect : "As regards the merits of the case the impugned order of the learned Deputy Settlement Commissioner, clearly shows that the relationship of the parties has not been denied by either party." There is no doubt that the law -laid down by the Supreme Court is very clear that where the Chief Settlement Commissioner, while purporting to exercise the revisional powers, ignored the legal character of an impugned order and disregarded the principal points urged on behalf of the appellant he had failed to exercise the jurisdiction vested in him by law. In the present case the Settlement Commissioner had refused to go into the question of relationship at the stage of revision on the ground that the relationship of the parties before the tribunals subordinate to him was not disputed. Copies of the pleadings before the subordinate tribunals of the learned Settlement Commissioner have not been filed in this Court, but the orders of the Deputy Settlement Commissioner dated 8-7-66 and 6-9-68 set out in detail the pleas taken before the two officers holding that office on the two dates. None of these pleas indicate if relationship as determined by the two orders of the Assistant Rehabilitation Mukhtiarkar was under challenge. On the other hand, the order of the Deputy Settlement Commissioner dated 6-9-68 clearly indicates that the relationship between the parties has not been denied by either of the parties. The relevant observations in the penultimate paragraph of his order are to the following effect : "The appellant claims that she is the paternal niece of deceased Mujibuddin, while the respondent claims to be his grand-daughter (daughter's daughter). The relationship has not been denied by either party." The only question agitated before him was if, in view of this admitted relationship of the parties, Mst. Akbari or Mst. Anwari had preferential rights to inherit the property of Mujibuddin. The learned counsel for the respondent, therefore, contends that in view of the provisions of section 19 of the Displaced Persons (Land Settlement) Act, 1958, it was entirely within the jurisdiction of the Settlement Commissioner to refuse to go into the .4 question of fact. He had, therefore, according to Mr. Riaz Ahmed, rightly refused to go into the question of fact. The submission has force Additionally Mr. Riaz contends that the question if Mst. Asghari Begum survived Mujibuddin is essentially a question of fact and the findings of the Settlement Authorities on this material question cannot be gone into by the High Court. He relies in this regard on 'Nisar Ahmed v. Fazeel Ahmed' (1975SCMR190). In the present case, as observed earlier, the petitioner has not cared to file the copies of the pleadings filed by him before the Settlement Authorities. Pleading is the best evidence to arrive at a conclusion if a particular plea was taken before such tribunals. Having chosen not to file such pleadings and having failed to show, from the orders of the Settlement Authorities that an alternate plea, about the fact of Mst. Asghari Begum having predeceased Mujibuddin or Mst. Akbari Begum not being the daughter of Mst. Asghari was ever taken, it cannot be held that the Settlement Authorities had, by nut considering these alternate pleas, refused to exercise the jurisdiction vested in them by law. The onus to show that such a plea was taken lay squarely and entirely on the petitioner which she has failed to discharge. An additional ground taken by the learned counsel for the petitioner is that as he had paid the settlement fees for the land in dispute the same stood permanently settled in her favour and, therefore, the Settlement Authorities had become functus officio with respect to such land. In support of this contention the learned counsel has relied upon an unreported ruling of a Division Bench of this Court contained in Writ Petition No. 706/68 Bundey Khan v. Nazroo. The specific observations in the judgment, from which the learned counsel seeks the strength in support of his argument, are to the following effect : "In my opinion, in the absence of any specific provision in the said Act or the rules thereunder conferring such powers on the Settlement Authorities, it is not open to them, after permanent transfer of land has been made in favour of a displaced person, and the orders of transfer have attained finality under the Act, to cancel or modify the same on solely within the jurisdiction of the Civil Courts to determine in such cases the issue of inheritance." Subsection (3) of section 15 of the Displaced Persons (Land Settlement) Act, 1958 entitles an allottee of a land under a Scheme as defined in section 2 (7) thereof, or under subsection (1) of section 15 of the Act to be permanently settled on such land. Proviso (a) to this subsection declares that no order of permanent settlement shall be passed where such allotted land is the subject-matter of an appeal, revision or review before the rehabilitation authority. For facility sake subsection (3) of section 15 of the Act is reproduced below : "A displaced person to whom any land has been allotted by a Rehabili tation authority before the commencement of this Act under a Scheme as defined in clause (7) of section 2, or by a Settlement Authority under subsection (1), shall be settled permanently on that land in such manner and on payment of such fees as may be prescribed by the Central Government Provided that no order of Permanent Settlement shall be passed in cases where- (a) the land held by the allottee concerned is the subject-matter of an appeal, revision or review before a Rehabilitation Authority ; or (b) the land has been allotted in lieu of rights as a mortgage or mort gagee and the allottee has not fulfilled the prescribed terms and condi tions ; or (c) the land has been allotted provisionally on the basis of inconclusive data." Rule 7 of the Displaced Persons (Land Settlement) Rules, 1957 lays down the date from which such lands are deemed to have been permanently settled. The rule reads as under : "Permanent Settlement on Land.-A displaced person to whom any land had been allotted under a scheme shall, subject to the proviso to subsection (3) of section 15, be deemed to have been permanently settled on the land so allotted to him with effect from the 24th day of December 1961 or the date of final confirmation of allotment whichever is later. Provided that : (a) the allottee has paid settlement fee as required by rule 10 ; (b) .. (c) .. The learned counsel contends that as the petitioner had paid the settlement fees therefore, ~be should be deemed to have been permanently settled on the lard, and as such the Settlement Authorities having become functus officio could not interfere with this settlement on the ground of fresh deter mination of inheritance. The document relied upon in this regard is true copy of a challan indicating the deposit of fee for agricultural land. The date on which this amount was deposited in the treasury is not indicated. The date on which it a as attested as true copy is given as 11-4-63. Mst. Akbari Begum bad already challenged on 16-3-1963 the transfer of the entire land in favour of the petitioner. As such the deeming date of 24th December 1961, as given in rule for permanent settlement would not be relevant as it would be a case falling under the exception clause as contained in the proviso to section 15 (3) of the Act. The unreported case relied upon by the petitioner is, therefore, of no help in this case. In view of this discussion I find no merit in the petition and dismiss it with costs. S. Q. Petition dismissed.