'MUHAMMAD NAWAZ ABBASI, J.--- This appeal by the leave of the Court is directed against the judgment dated 15-1-1997 passed by learned Single Judge of the Lahore High Court, Lahore in a Constitutional Petition bearing No,87 of 1997 wherein the dispute relating to the transfer of evacuee property was involved. The leave was granted in this appeal vide order, dated 9-1-1998 as under:- "(7) After examining the documents placed on the record by the petitioner, we are of the view that in this case, the Chief Settlement Commissioner failed to exercise jurisdiction vested in him to entrust the case of the petitioner to a Notified Officer for disposal. The question whether the proceedings regarding auction of the plot in favor of the petitioner had been finally decided either by calling upon the petitioner to pay the balance amount of consideration and on his failure to do so, the auction of the same in his favor was cancelled by the Competent Authority in accordance with law on the happening of which the property could become available for further disposal and if no order for the cancellation of the auction of the plot in favor of petitioner had been passed, the same was a case of pending proceedings which were to be disposed of by the Notified Officer in accordance with the settlement laws as they stood before their repeal had arisen in this case and we grant leave to appeal to consider these questions."
2. The facts in detail have been incorporated in the leave granting order and in the light thereof the following questions of law would arise for determination:--
(A) Whether the Chief Settlement Commissioner failed to exercise the jurisdiction vested in him by not entrusting the case of the petitioner to a Notified Officer for disposal?
(B) Whether the auction of plot in the name of appellant would be annulled for non-payment of balance price or in absence of an express order, the sale of the plot was intact and the same was not available for transfer to the respondent?
(C) Whether the matter would not fall within the definition of "pending proceedings" on repeal of the Evacuee Laws on 1st of July, 1974.
3. Learned counsel for the appellant has contended that the evacuee character of the property and its sale through auction to the appellant in 1963 for a sum of Rs,80,000 out of which an amount of Rs,60,000 was adjusted from the compensation book of claimant as associate of the appellant was an admitted fact but unfortunately due to the non-availability of the original record the appellant could not deposit the remaining price and in consequence thereto the issue of transfer order was withheld by the department. Learned counsel submitted that without cancellation of auction through an express order the sale would be deemed to be confirmed and the property would not be available for transfer and that the subsequent transfer of the property in the name of the respondents was without jurisdiction and void. The learned counsel when confronted that the appellant for a considerable period had taken no step for the deposit of the balance price for issue of transfer order by the department would deemed to be no more interested in the property, he submitted that a notice for deposit of balance price was served upon the appellant on 6-5-1968 and in reply to the notice the Deputy Settlement Commissioner, Jhelum verified the necessary particulars of the auction for issue of transfer order but nothing was done and subsequently the property was transferred in the name of respondent. The learned counsel has tried to convince us that the appellant has regularly been pursuing the matter but due to the non-availability of record the transfer order could not be issued before repeal of evacuee laws in 1974 and after repeal of the evacuee laws, the matter would be deemed to be pending for the purpose of completion of the formalities for issue of transfer order by the Notified Officer. In net-shell the learned counsel argued that the non-issue of formal transfer order was a failure on the part of department which would not undo the sale and affect the right of ownership of the appellant in the property. Learned counsel representing the Settlement Department contended that in absence of the record relating to the auction of the property and' existence of compensation book the verification of the auction and the part payment of price by the Deputy Settlement Commissioner, Jhelum after lapse of a considerable period would not be sufficient to establish the existence of a valid transaction of sale and consequently the claim of the appellant would be without any foundation. The learned counsel representing the private respondents in addition to the argument of the learned counsel for the department submitted that as per terms of the auction, balance price was required to be deposited within 30 days from the date of auction and the needful having been not done within the prescribed time, the sale in auction would be deemed to be cancelled on the expiry of the period of 30 days. The learned counsel added that the alleged fraud, if any, was committed in the department, in which the private respondents were not a party and on transfer of property under the regular scheme they would become its absolute owners and the valuable rights acquired by them in the property as bona fide purchaser would be protected under law. The learned counsel has brought to our notice that the respondent after transfer of the property by the department constructed a market consisting of 55 shops by spending huge amount and that equity would not permit to undo allotment of the land at this belated stage after 30 years of transfer of land.
4. This is an admitted fact that the record relating to the auction of the property was not available and except the endorsement regarding the auction of the plot and the deposit of a portion of sale price made by the Deputy Settlement Commissioner, Jhelum there was no proof of the auction and part payment of sale price by the appellants so much so the compensation book was not traceable. There was also no evidence about the existence of the documents on the basis of which the appellant asserted his claim and mere endorsement of the Deputy Settlement Commissioner on the reply of the appellant to the notice would not be sufficient to establish his claim and that in absence of any such evidence, it is difficult for us to accept that endorsement made by the Deputy Settlement Commissioner was based on original record and it represented correct factual position.
5. In the light of the foregoing discussion, we find that appellant has not been able to bring on record any evidence in proof of a valid sale for issue of transfer order. The property undoubtedly was transferred before the repeal of evacuee laws and being not available for transfer under the repealing Act, the contention of the learned counsel regarding non-exercise of jurisdiction by the Notified Officer has no substance. Be that as it may, since the appellant has not been able to establish the existence of a valid sale through auction, we need not to go into any other question.
6. For the reasons given above this appeal being without any substance is dismissed. There shall be no orders as to costs.