Syed Asghar Ali Shah predecessor of the petitioners and respondent No. 6 was in possession of a residential house No. 742, Ward No. 5, Old Mandi Pattoki, District, Lahore since 1947. He was a local. In 1957, he was convicted for an offence under section 302, P. P. C. And sentenced to life imprisonment. He was, therefore, in jail when settlement operations had commenced in the year 1959. Respondent No. 6 Syed Muhammad Mahdi Shah as attorney of his father, filed an LH form for the transfer of the said house. Alongwith this form, he had also filed a declaration of eligibility which, too, was signed by respondent No. 6. He was found entitled to the transfer of the house under the law. It appears that respondent No. 6, acting as attorney of his father agreed to surrender all rights in the house in favour of respondents Nos. 4 and 5 on payment of the transfer price out of their compensation books. Necessary documents were drafted on or about 29-4-1960.
An agreement of association on a proper stamp paper along with an affidavit and an application signed by respondent No. 6 on 28-4-1960, were filed in the office of the Deputy Settlement Commissioner for giving effect to this agreement. The affidavit filed inter alia contained recital to the following effect : The papers were processed in the office. On 24-5-1960, a Settlement Inspector recorded a note on the application to the effect that the house is in' possession of Syed Asghar Ali Shah who was undergoing sentence in Jail. Form had been filed on his behalf by his son Syed Muhammad Mahdi Shah. He has entered into an agreement of association with the two respondents surrendering rights in the house in their favour. The power of attorney in favour of Syed Muhammad Mahdi Shah by his father Syed Asghar Ali Shah is attached. The Deputy Settlement Commissioner ultimately found Syed Agghar Ali Shah entitled t:) the transfer of the house at a transfer price of Rs. 3,919. He also, on 26-8-1960, allowed the deed of association between the transferee and respondents Nos.
4 and 5. A P. T. O. Of the entire house was then issued in favour of the respondents. The two respondents then paid the transfer price out of their own sources, and the transfer of the house in their favour thus became final.
2. In or about February, 1967, Syed Asghar Ali Shah nominated another son Syed Zulfiqar Haider petitioner as his attorney. He filed appeal against the order dated 26-8-1960 by which the Deputy Settlement Commissioner had allowed the deed of association between the parties. In this appeal, he took up the position that he had filed an LH form for the transfer of the house in dispute and that he being in jail, had not known its -fate. On receipt of notice from respondents Nos. 4 and 5, he had been astonished to learn that the rights in the house had been surrendered by respondent No. 6, his son in favour of respondents Nos. 4 and 5. He never appointed Syed Muhammad Mahdi Shah as his attorney and, therefore, be was not bound by the agreement executed by him. The appeal was dismissed by the Additional Settlement Commissioner by his order dated 26-6-1967 on the ground of limitation. Revision against the order dated 26-6-1967 was filed in the Court of Settlement Commissioner, Lahore. I am told that Syed Asghar Ali Shah was released on 5-9-1967 from jail and he expired on 8-1-1970. The present petitioners along with respondent No. 6 were brought on record in his place before the learned Settlement Commissioner as petitioners. Be that as it may, the Settlement Commissioner rejected this revision petition by order dated 31-8-1970. Refuting the petitioners' contention hat Syed Muhammad Mahdi Shah respondent No. 6 was not duly authorised as attorney of Syed Asghar Ali Shah this officer observed : "The perusal of the file shows that the agreement was filed by S. Muhammad Mahdi Shah and was approved by the competent authority. If the petitioner had not executed a Special Power of Attorney in favour of his son Syed Muhammad Mahdi Shah then why did not he make efforts- for obtaining the final transfer of the house in his own name. For the reasons discussed above I find no merits in the revision petition and dismiss the same."
3. The petitioners by this constitutional petition have called in question the orders of the Deputy Settlement Commissioner dated 26-8-1960 of the Additional Settlement Commissioner dated 26- 6-1967 and of the Settlement Commissioner dated 31-8-1970. The principal argument raised by the learned counsel for the petitioners at the motion stage was that Syed Muhammad Mahdi Shah had never ,been authorised by Asghar Ali Shah his attorney to associate with respondents Nos. 4 and 5 or to surrender rights in the property in their favour. The learned Judge after perusing the record admitted this Writ Petition to regular hearing observing inter alia ': "The original file has been received. The Power of Attorney dated the 10th May, 1960, purporting . To have been executed by Syed Asghar Ali Shah .In favour of his son Syed Mahdi .Shah, authorizing him to enter into an agreement of association with Boota and Ali Muhammad, is on the record. A look at the document reveals that it is not even signed or thumb-marked by Syed Asghar Ali Shah, nor has it been attested by any witness. It is remarkable that at that time Syed Asghar Ali Shah was supposed to be serving his sentence of imprisonment in a certain jail and such document, if at all executed in the presence of the jail authorities, who would have been able to identify the executant."
4. At the hearing of this petition, the same contention has been reiterated. I have heard the learned counsel for the parties at some length.
5. The finding if late Syed Asghar Ali had appointed his son Syed Mahdi Shah respondent No. 6 as a special attorney authorising him to enter into an agreement of association with respondents Nos. 4 and 5, is essentially one of fact. The Settlement Commissioner in his order dated 31-8-1970, has found that late Syed Asghar Ali Shah had appointed his son, respondent No. 6, as his attorney. I could have, therefore, dismissed this petition on the short ground that a finding of fact is not open to interference by this Court in the exercise of its constitutional jurisdiction. However, with the help of the learned counsel for the petitioners, I have gone through the settlement record. I find that the finding of the Settlement Commissioner is not open to any exception even on merits. I am convinced that at the behest of the petitioners, the actual power of attorney executed by Syed Asgbar Ali Shah in favour of respondent No. 6 had been removed and an unsigned power of attorney placed in the file. I have drawn this conclusion from a number of circumstances which may be summarized thus : (i)An unsigned power of attorney is at page 45 of the Deputy Settlement Commissioner's file. This is immediately after the LH form filed for the transfer of the house in dispute. The scribe of this power of attorney has put in date below his signatures. It is dated 10th ofay, 1960. The form was filed in the year, 1959. Alongwith the form, at pages 47 and 49 of the file are two declarations of eligibility form and the declaration of eligibility are not signed by Syed Asghai Ali Shah but by Syed Muhammad Mahdi Shah respondent No. 6 or his behalf. Respondent No. 6 therefore, could not have filed the LH form unless it was accompanied by a proper power of attorne3 executed by Syed Asghar Ali Shah.
If the power of attorney to begin with was unsigned by Syed Asghar Ali Shah, the date of it: execution could not have been the 10th of May, 1960.
(ii) The deed of association and the connected papers were executec on the 28th of April, 1960.
While processing these papers it had been noticed that the power of attorney by. Syed Asghar Ali Shah it favour of Syed Muhammad Mahdi Shah had been attached. At unsigned power of attorney allegedly executed on the 10th of May; 1960, therefore, could not have been filed along with the papers on the 28th of April, 1960. There is an affidavit filed along with the agreement of association, which contains a recital reproduced in para. 1 above.
(iii) All official functions are presumed to have been done in a proper manner. The papers were thoroughly scrutinized in the office. There is a detailed noting by the office, It would be difficult to accept that it had not been noticed by any of the officers that the power o1 attorney on which respondent No. 6 had been acting was an unsigned one.
(iv) The association deed was allowed in the year, 1960. Even if Syed Asghar Ali Shah was in Jail, he had a number of dependents as i; apparent from the list of his legal heirs filed in the Settlement Com missioner's Court on the death of Syed Asghar Ali Shah. It cannot be believed that from 1960 to 1967 Syed Asghar Ali Shah though in jail and his dependants were not able to learn that the house had been transferred in favour of respondents Nos. 4 and 5 on the basis of deed of association executed by respondent No. 6.
(v) In the grounds of appeal before the Additional Settlement Commis--sioner and grounds of revision before the Settlement Commissioner, the point was not taken that the Department had accepted a power of attorney which was not signed by Syed Asghar Ali Shah and witnessed by jail authorities.
I am, therefore, of the view that the- story that respondent No. 6 Syed Muhammad Mahdi Shah was not.a duly authorised attorney of Syed Asghar Ali Shah is an afterthought and based on a crude attempt to get out of the commitment duly made. If, I were to accept the story, the case of the petitioners would otherwise fall to the ground, Syed Asgbar Ali Shah had never filed an LH form for the transfer of the house in dispute. In fact, the LH form on which the house was transferred in favour of Syed Asghar Ali Shah was filed by Syed Muhammad Mahdi respondent No. 6 acting as his attorney. The petitioners cannot be permitted to approbate and reprobate --owning the actions of the attorney which suit them as valid and disowning the actions which do not suit them.
6. For all that has been stated above, I do not find any merit in this petition and, therefore, dismiss the same. The parties are left to bear their own costs.