ZAKAULLAH LODHI, J.-The dispute between the petitioner and the 2nd and third respondents is in respect of Evacuee building site bearing Khasra No. 2951 measuring 2,849 sq. Ft. Situated on Mitha Mall Road, Quetta. This plot of land was contiguous to an evacuee house bearing Municipal No. 3- 12/9 which was allotted to the 2nd respondent. The 2nd respondent initially used the disputed plot as a courtyard of his house but subsequently in the year 1955-1956 raised construction thereon consisting of 3 rooms and one Garrage. On 29th November 1959, he submitted "P" form in the Settlement Department seeking transfer of the plot in his favour on the basis of continuous exclusive possession and construction. Here it may be mentioned that in the "P" form, he clearly mentioned that the disputed plot had been allotted to him by the Deputy Rehabilitation Commissioner, Quetta on 15th December 1953, but not only that the petitioner's counsel pointed out but the learned counsel for the 2nd and 3rd respondents also candidly admitted that this fact had been incorrectly incorporated in the "P" form and that the disputed plot was in unauthorised possession of the 2nd respondent. However, this misstatement does not entail any serious consequences because when the Settlement Department charged the price of the plot from him be was treated an unauthorised occupant and 50 % of the actual reserved price was charged from him by way of penalty. It is further noteworthy at this stage that although the construction allegedly raised by him was of the type approved by the Municipal Committee, Quetta but prior approval, of the Municipal Committee was not obtained. However, this omission also does not matter much in view of the Settlement Laws which only require the existence of permanent construction to entitle an occupant to its transfer.
2. The Deputy Settlement Commissioner, Quetta accepted the 2nd respondent's "P" form and issued to him a Provisional Transfer Order on 18th January 1962. The price fixed for the plot was Rs. 27,054 which was not paid by the 2nd respondent for quite some time and consequently the Settlement Department without cancelling the transfer order issued in his favour put the plot in auction and sold it to one Dur Muhammad. The bid offered by Dur Muhammad was confirmed by the Additional Settlement Commissioner, Quetta but the former himself moved an application on 25th March 1964, requesting that the auction in his favour may be cancelled and the price paid by him may be restored in his compensation book as he apprehended that this plot was likely to be declared non- evacuee property in the near future. As to bow and why this apprehension gained ground in his mind is not much relevant for our purpose. However, the Settlement Department allowed his request and again put the plot in question in auction 3 or 4 times, but at no occasion the P. T. O.
Issued to the second respondent was cancelled. At one stage the house in occupation of the second respondent was also transferred to one Abdul Qadir who applied for the transfer of the disputed plot also on the ground of its contiguity with the said house. It would be most pertinent to mention here that while seeking the transfer of the plot Abdul Qadir categorically mentioned that the plot was evacuee and the existing superstructure had been raised thereon by the 2nd respondent. Entire details of litigation that ensued between the 2nd respondent and said Abdul Qadir is not, however relevant for our purpose. Suffice it to say that after prolonged litigation the 2nd respondent, succeeded not only in getting back the house but also the plot. He also applied to the Settlement Department on 25th June 1953, for the reduction of the price of the disputed plot on the ground that it had been incorrectly evaluated on the basis of. Average auction prices and 50 thereof instead of prevailing market value plus 50%. (Additional 50% was charged by way of penalty levied upon unautborised occupants under law). The Settlement Authorities accepted this request and reduced the price to Rs. 10,%0.
3. On 20th May 1970, the second respondent surrendered his rights in the said plot in favour of the 3rd respondent and consequently the Settlement Department issued a Permanent Transfer Deed in the latter's favour on 30th June 1970.
4. The 2nd respondent had, after raising the superstructure on the disputed plot leased it out to the petitioner on 10th November 1961, and the latter continued to pay rent to him for over 10 years.
However, for some reasons on 4th October 1971, the 2nd respondent filed an application for his eviction to which a rejoinder was submitted by the petitioner on 14th December 1971, clearly admitting the fact that the superstructure over the disputed plot had been raised by the 2nd respondent. The only objection raised by him with regard to his title as landlord was that as he had surrendered his rights in the property to the extent of the land beneath the superstructure to the 3rd respondent, he was not entitled to demand rent at the previous rate. The petitioner's defence was struck of by the Rent Controller, Quetta and directions to vacate the premises were issued on 31st August 1972. He filed an appeal against this order to the District Judge, Quetta which was allowed on 31st October 1972, but in second appeal filed to this Court the order of the Rent Controller, Quetta was upheld. The Supreme Court also refused to grant leave to appeal against the order of this Court on 18th December 1974. Having thus failed to resist the eviction order the petitioner filed an application under section 47 of the Code of Civil Procedure based on several grounds including the ground that the 2nd respondent was not owner of the superstructure existing on the plot in question. On the basis of this application he somehow succeeded in avoiding his ejectment until 23rd April 1978, when this Court finally held that the 2nd respondent was entitled to get back the possession of the premises leased out to the petitioner.
5. It was after ten years' occupation as tenant and two to four weeks after the passing of the order of ejectment that the petitioner allegedly moved two applications on 16th and 26th September 1972, to the learned Member Board of Revenue submitting that he was entitled to the transfer of the disputed plot on the ground of continuous occupation. At the stage of arguments it was for the first time urged that the superstructure existing over the plot was not, in fact, raised by the 2nd respondent but it already existed thereon when it was occupied by the 2nd respondent. In short big case was that the 2nd respondent had obtained the transfer of this plot by practising fraud upon the Settlement Department and that on this score his transfer documents were liable to be cancelled and instead the petitioner was entitled to its transfer under Settlement Scheme No. VIII. It may be added here that these allegations were neither mentioned in the rejoinder submitted to the Rent Controller nor they find place in the copy of one of the two applications allegedly submitted to learned Member, Board of Revenue (Original application dated 16th September 1972 is missing). Besides this, there are genuine doubts about the very submission of these applications in the year 1972, with which point we shall deal later. However the petitioner's case is that these applications remained pending with the learned Member, Board of Revenue without any action and he too did not move either the learned Member Board of Revenue or any other authority to seek decision of these applications for a period of 4 years. It was on 10th January 1976, that he moved another application to the learned Member, Board of Revenue along with an attested copy of one of the two earlier applications allegedly submitted by him stating inter alia that his applications being panding since 1972, it was to be treated as a pending case and the Court had jurisdiction in the matter despite repeal of Displaced Persons (Compensation and Rehabilitation)
Act, 1958, The learned Member, Board of Revenue heard the case on merits and dismissed the petitioner's application dated 10th January 1976. He held that no fraud or misrepresentation of facts had taken place and the plot was regularly transferred to 2nd respondent. With regard to the construction existing on the disputed plot he relied upon the Rehabilitation and Settlement record which from the very beginning showed it to be a building site and made no reference of any superstructure existing thereon since before partition. He further held that the petitioner having come into the possession of the disputed property as lessee of the 2nd respondent, he had no locus standi to challenge his landlord's title and that too after a period of 10 years and at a stage when his ejectment had been ordered. It is against this undated order of the learned Member, Board of Revenue (passed some time in the month of February 1978) that the petitioner has come up to this Court under Article 199 of the Constitution of Pakistan, 1973.
6. Mr. Basharatullah, the learned counsel for the petitioner argued in support of the petition that the superstructure had been raised by the evacuee owner in the year 1946-47 and placed reliance upon "Jamabandi" of this year as well as that of 1954 and 1955 categorising the property as "GHAIR MUMKIN MAKAN". He accordingly asserted that the 2nd respondent had misrepresented the fact that he had come into occupation of vacant building site and had raised the superstructure himself. Further according to him the incorrect Settlement Record showing the disputed property to be a vacant building site from the very beginning had been taken advantage of by the 2nd respondent who ultimately succeeded in obtaining its transfer, hence fraud having been practised by him upon the Department the transfer in question was liable to be cancelled and the petitioner deserved its transfer under the provisions of Settlement Scheme No. VIII; made under the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
7. On the other hand Mr. Muhammad Muqim Ansari the learned counsel appearing for the 2nd and 3rd respondents and Mr. Jafar Naeem appearing for the Board of Revenue vehemently contended firstly that the petitioner was not an aggrieved person within the meaning of Article 199 of the Constitution as he was not a contestant for the transfer of this plot from the beginning and had appeared on the scene as late as 10th January 1976, and secondly the case could not be deemed to be a pending case and the learned Member, Board of Revenue was not competent in law to re- open this old and finally settled issue in the year 1976. According to them no application was ever submitted to the learned Member, Board of Revenue in 1972 and that the last mentioned application was the first application. These arguments were however, besides the contention that not only the initial transfer of the disputed plot on the basis of construction and continuous undisturbed occupation but also the surrender of rights to the extent of the plot by 2nd respondent to the 3rd respondent was strictly in accordance with law. We propose to deal with the objections raised by the learned counsel for the respondents first as they pertain to the maintainability of this petition and the jurisdiction of the learned Member, Board of Revenue to entertain the petitioner's application dated 10th January 1976.
8. The first objection is with regard to the petitioner's locus standi to maintain this petition which was dependent upon the petitioner's position being established as an aggrieved party within the meaning of Article 199 of the Constitution of 1973. They submitted that the petitioner was never contestant for the transfer of the disputed plot from the beginning when it was occupied as courtyard of his house by the 2nd respondent over 10 years back. Further according to them, if at all it was accepted for the sake of argument that he made applications in the year 1972, to challenge 2nd respondent's transfer even then it is clear that these applications were made after the passing of his ejectment order by the Settlement Authorities. Additionally these applications were silent about the allegation of fraud which was urged only at the stage of arguments. Thus according to their version he had no personal right or interest in obtaining the transfer of this plot and therefore was not covered by the definition of an aggrieved party within the meaning of Article 199 of the Constitution. Mr. Basharatullah while admitting the fact that the petitioner came into occupation of the plot as tenant of the 2nd respondent and continued to pay rent without any objection for over 10 years, argued that by virtue of his occupation a right was created in his favour to contest for the transfer of this plot. He also argued that even if there was remotest interest or semblance of an interest the petitioner could maintain these proceedings. In this context he placed reliance on the case of Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD1969SC223). In this case it was considered with reference to Article 98 of the late Constitution of 1962 that it was not necessary for maintaining writ proceedings that the right asserted by an aggrieved party should be a right in strict juristic sense and that it would be enough to maintain such proceedings if the applicant could establish that he had a personal interest in the performance of a legal duty which had not been performed by a functionary of the State in a manner required by law. Putting the petitioner's averments with regard to his entitlement to the transfer of the disputed plot on the touchstone of the dictum laid down in this case we find that it is an admitted feature in the case that he entered in the house on 10th November, as a tenant of the 2nd respondent and it was not until his eviction order had been passed on 31st January 1972, by the Rent Controller that he (according to him) moved application on 16th and 26th September 1972, to the learned Member Board of Revenue to throw a challenge to his landlords' title. Although these applications are not available on record and only an attested copy of the application dated: 26th September 1972, has been filed along with the last application dated 10th January 1976, upon which the decision impugned in this writ petition was made, yet even if it is accepted for arguments' sake that these applications were actually moved, the position would be that the P. T. O. Was issued to the 2nd respondent in respect of the disputed plot on 18th January 1962, and thereafter the plot was put into auction on several occasions but at no stage the petitioner even came forward to assert his so called right. It is however a different matter that even if he had done so he would not have been heard by the authorities being admittedly a tenant of the 2nd respondent but any person of ordinary prudence is expected in such circumstances to make a move if he considered himself entitled in law to the transfer of this plot. This belated move makes it quite clear that he never considered himself entitled to the transfer of the plot. At least he was expected to do so, by alleging fraud etc. When his ejectment was sought, but it was not until his ejectment orders were made that, he according to him, made these applications first in 1972 and then in 1976. Accordingly the petitioner has not been able to show that he had any personal right or interest in the plot at any stage. The authority quoted by the learned counsel is not at all apt and we are, therefore, of the view that the petitioner cannot be considered to be an aggrieved party with in the meaning of Article 199 of the Constitution of 19731 and is not thus entitled to maintain these proceedings.
9. The second objection raised by Messrs Ansari and Naeem was that when if it was accepted for the sake of argument that the petitioner had locus stands to challenge the transfer of plot to the 2nd respondent, the learned Member, Board of Revenue should have refused to entertain this application for want of jurisdiction as it was not a pending case because the first application was moved on 10th January 1976, and the mention of applications dated 16th and 26th September 1972, had only been made to give jurisdiction to the Board of Revenue. The legal position is that Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 repealed Displaced Persons (Compensation and Rehabilitation) Act, 1958 and by virtue of its section 2 saved only the pending proceedings. Accordingly it shall have to be seen as to whether applications dated 16th and 26th September 1972, had at all been submitted as the question of jurisdiction is solely dependent upon the determination of this point. Mr. Basharatullah has filed attested copy of application dated 26th September 1972, with the application dated 10th January 1976, upon which the impugned decision was made while even a copy of the application dated 16th September 1972, is not available.
According to the argument advanced on behalf of the petitioner firstly this application was submitted on 27th September 1972, and not on 26th September 1972, as indicated by the applicant itself and secondly it was addressed to the Deputy Settlement Commissioner, Quetta whereas the title of the attested copy shows that it was submitted to the Member, Board of Revenue. This position could not be reconciled as to how an application addressed to the Deputy Settlement Commissioner, Quetta came to be received by the learned Member, Board of Revenue. Different notes on the application also manifestly show that it was dealt with by the learned Member, Board of Revenue and at no stage the Deputy Settlement Commissioner came in picture. When asked to explain this position Mr. Basharatuilah showed his inability to justify his stand vis-a-vis the position existing on record. It is thus very much doubtful that this application was at all submitted.
Manupulations in the record with the help of the staff of the Settlement Organization not being uncommon. In Quetta as argued by Mr. Naeem it can be safely inferred that the application a copy of which has been filed along with application dated 10th . January 1976, was inserted in the file sometimes in 1976 in order to give jurisdiction to the learned Member, Board of Revenue to treat it as a pending case. Moreover if this application had been filed in the year 1972 efforts for its decision would have definitely been made for the petitioner was faced with an ejectment order. Moreover there is no mention of this application in the impugned order which further indicates that it was never on record when the ease was decided. It is further un-understandable that the Settlement Authorities will keep silent over the matter for 4 along years. In these circumstances it is manifest that no application was submitted by the petitioner in the year 1972 as alleged and the attested copy attached with the application dated 10th January 1976, on the strength of which the matter was re-opened by the learned Member, Board of Revenue is e nothing but the result of petitioner's successful' mainpulation in connivance with the Settlement staff: Irresistible conclusion that should follow now is that the learned Member Board of Revenue - had no Jurisdiction to reopen this matter on the basis of application dated 10th January 1976.
10. Although it is not very essential to deal' with the argument raised on behalf of the petitioner on merits after what we have held above, but in order to cover all aspects of the case placed before us we may briefly deal with the question of legality or otherwise of the transfer of the plot to the 2nd respondent as well. In this connection suffice it to say that entire Rehabilitation and Settlement record which is not 'less r than two and a half decades old by now consistently mentions the disputed property as a vacant building site. At no stage it was ever disputed by any person including the petitioner and various auction purchasers who appeared on the scene too often and left it without leaving behind any mentionable effect on the 2nd respondents' entitlements, that this was not a building site when it was occupied by the 2nd respondent and that a building already existed thereon having been raised by the evacuee owner as is allegedly indicated by "Jamabandis" for the year 1946-47 and 1954-55 placed on record by the petitioner. These "Jamabandis" have for the first time posed a challenge to the admitted factual position of over two and a half decades that only the plot beneath the building was evacuee while the superstructure was raised by the 2nd respondent himself. Although the words "GHAIR MUMKIN MAKAN" mentioned in these Jamabandis only indicate the classification of the land, but since this position is not accepted by Mr. Basharatullah a reference to the evidentiary value of the revenue record would not be out of place. In this context a reference to section 52 of West Pakistan Land Revenue Act would be most relevant. According to this provision of law these entries have only presumptive value and such presumption is always rebutable. In the instant case if any presumption is raised by these "Jamabandis" to the effect that the building over the plot in question had, in fact been raised by the evacuee owner as is argued before us it stands fully rebutted by the Custodian. Rehabilitation and Settlement Record which was prepared on the basis of city survey. Moreover many a contestant have come in the field for the transfer of this plot during this long period of over 20 years, but none of them ever asserted that there existed any superstructure over this plot prior to it occupation by the 2nd respondent. On .The other hand an arch opponent of the 2nd respondent namely Abdul Qadir who had been transferred even the 2nd respondent's house at one stage and was making struggles to get the transfer of the disputed plot also categorically mentioned in hi application made for the transfer of this plot that the construction existing thereon had been raised by the 2nd respondent himself. Not only this I his written statement filed before the Rent Controller to resist the eviction application the petitioner himself never mentioned that the superstructure had not been raised by the .2nd respondent. Then in the applications submitted on 26th September 1972 (only an.
Attested copy is on record and then on 10th January 1976 upon which the. Impugned decision was made, the petitioner never mentioned that the 2nd respondent had not raised the construction over the plot under discussion and that the transfer in his favour was fraudulent. In these circumstances Mr. Basharatullah's arguments advanced in the light of the principle enunciated in the case of Anwar Hussain San! v. Sarfraz Ahmed and 2 others (P L -D 1971 SC .669to the effect that a Permanent Transfer Deed issued as a result of fraud or misrepresentation of facts could at any stage be cancelled is wholly redundant and is finally inapplicable to the facts of this case. We may further mention that the entries in the Jamabandi which have been relied upon by Mr. Basharatullah also seem to have been prepared in a most haphazard manner as one of these Jamabandis shows the 2nd respondent a tenant of the evacuee owner, which is simply impossible for he occupied the disputed plot much after partition. On this score as well much evidentiary value cannot be attached to these documents. For the reasons given above these documents are far from being sufficient to provide rebuttal to the entire record of the Custodian, Rehabilitation, and Settlement Department. Even otherwise the entries in the revenue record are not conclusive proof of the facts mentioned therein and are only capable of raising only a presumption in favour of their correctness and authenticity as we have already discussed above. In Muhammad v. S. A. M.
Khan, Member, Board of Revenue, West Pakistan, Lahore (PLD 1970 Lah. 614and Mst. Kaniz Fatima and 3 others v. Member, (Revenue) Board of Revenue, Punjab and others (PLD 1973 Lab. 495and in S. M. Lutfullah v. Bibi Badrunnessa and others (PLD 1969 Dacca 52the nature of the entries made in the revenue record was discussed and with regard to the authenticity that can be attached to them it was held that the entries in revenue record were incapable of conferring upon a person the rights of ownership. It is also admitted position of law that such entries can always be reversed by a civil Court and, as such, they constitute weak evidence of facts mentioned therein; much less providing a conclusive proof. This position stands clarified by section 52 of West Pakistan Land Revenue Act referred by us earlier. Before we part with this discussion we may also refer to the observations of our brother Mr. Justice M. A. Rashid made in the Civil Revision No. 29 of 1977 filed by the petitioner challenging the decisions of subordinate Courts made on petitioners' objection petition filed under section 47 of the Code of Civil Procedure to resist the execution proceedings initiated against him. In the decision of that petition also it was held that the expression "Ghair Mumkin Makan", appearing in the "Jambandis" had in fact, misled the petitioner and that this expression only indicated the classification of land in terms of revenue laws and did not mean that a house actually existed on the plot in question at the time of the preparation of such revenue record. The argument of Basharatullah can be dealt with yet another angle also and that is that the finding which regards the nature of property being a finding of fact consistently maintained by the Custodian Rehabilitation and Settlement Authorities at all previous stages this Court would be highly reluctant to interfere with the same because it is an admitted position of law that a disputed question of fact was outside the scope of writ jurisdiction of this Court for various reasons which need not be repeated. In this view of the matter we are fortified by the pronouncement in the cases of Muhammad Aziz Asif v. Chairman and Trustees of Port Chittagong and others (PLD 1967 Dacca 708and Abdul Rashid Bhhiya and others v. Province of East Pakistan and others (PLD 1970 Dacca 633wherein it was held that a disputed question of fact requiring evidence was incapable of decision in writ proceedings. On this score as well we are of the view that this long settled and closed chapter was firstly incapable of reopening on writ proceedings and also that the points which have been placed before us to justify its reopening, i.e. fraudulent transfer in favour of second respondent and petitioner's entitlement to its transfer under Settlement Scheme No. VIII have not at all been substantiated before us. We are thus of the confirmed view that the superstructure over the disputed plot was raised by the second respondent as consistently held by different relevant organizations and the same was correctly transferred to him under the previsions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 and also that the surrender of rights to the extent of the plot of land by the second respondent in favour of the third respondent was also without any legal flaw.
For the foregoing reasons we find no substance in this petition which is hereby dismissed with costs.