' SARDAR MUHAMMAD RAZA KHAN, J.--- Both the appeals having arisen in one and the same background between the same parties would be disposed of through this single judgment.
2. A House bearing Settlement No,B-H-19-S-4 (hereinafter to be referred to as S-4) situated in Chakwal City admittedly was allotted to Azim-ud-Din, predecessor of the present appellants vide P.T.O. No,22794, dated 15-2-1960 subsequently confirmed on 19-12-1964.
3. Another plot measuring 2 Marlas and 106 sq. Ft. Bearing No,B-II-19-S-4/B (hereinafter to be referred to as S-4/B) adjacent to Plot S-4 was put to auction by the Settlement Department on 26- 8-1964. It was purchased by one Mehdi Hassan in whose favour the auction was confirmed on 24- 11-1964 and who was issued P.T.D. On 30-6-1972. In the meanwhile, Mehdi Hassan, auction- purchaser died. His son sold the plot.
4. This sale was pre-empted by Ghulam Hussain, respondent No,1 as contiguous owner who was granted a decree on 18-11-1978 which was maintained by the First Appellate Court on 24-9-1979 against which regular second appeal in the High Court was also dismissed.
5. Azim-ud-Din, predecessor of the appellants thereafter filed a suit for permanent injunction against the vendee of Plot No,S-4/B as well as the successful pre-emptor, which was dismissed on 19-10-1984 along with appeal, which too was dismissed on 16-7-1986. Azim-ud-Din filed a Revision.
Petition No,392-D of 1986 before the High Court, which was dismissed through the impugned order.
6. On the other hand, Azim-ud-Din had also filed an application dated 27-6-1968 before the Deputy Settlement Commissioner, Chakwal (Administrator Evacuee Property) challenging the aforesaid auction proceedings. He filed another application dated 1-3-1989 before the same Authorities.
Eventually, the Deputy Settlement Commissioner, Chakwal vide order, dated 12-8-1991 accepted the said application and set aside the auction proceedings. Ghulam Hussain challenged the above order through Writ Petition No,4/R of 1992. The writ petition was accepted while Revision Petition No,392-D of 1986 filed by Azim-ud-Din, already mentioned above, was dismissed through the impugned judgment. Both the appeals are filed against such findings.
7. The whole dispute between the parties revolves around two points. First, as to whether any property described as S-4/B at all existed in the Settlement Record and was available for auction.
Second, as to whether any matter before the Settlement Authorities was pending on 12-8-1991 within the contemplation of section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975.
8. We have minutely gone through the record most of which was available in original. The order, dated 12-8-1991 challenged in writ petition is available on record at pages 86-89. Para. No,3 of such order would clearly indicate that the Settlement Officer had conducted thorough investigation about the existence or otherwise of Property No,S-4/B, had examined the concerned officials and had inspected the relevant record. After making such thorough inquiry about a question of fact, the Deputy Settlement Commissioner, Chakwal had arrived at an emphatic conclusion that Property No:S-4/B never existed on the spot and that nothing as such was available in the Settlement Record to be allotted to anyone or to be put to auction. The learned High Court neither had any means nor any reasons to refute the aforesaid finding of the Settlement Authorities regarding a pure question of fact. We are convinced that the learned High Court had no jurisdiction to interfere therewith.
9. In order to be more clear in our minds and to do complete justice between the parties, we have also examined the four concerned registers in original including C.S.C. IV where, after Property No,S- 4, the one that follows in the serial order is Property No,S-5 and not S-4/B. In one register where it seems to have cropped up for the first time, the traces of interpolation, erasures and overwriting etc. Are quite visibly apparent. We believe that the conclusion about this question of fact B arrived at by the Deputy Settlement Commissioner was based on correct appraisal of the evidence which has been set aside by the learned High Court for no reason at all. Such conclusion is not sustainable.
10. The second point of controversy is as to whether, on 12-8-1991 any matter was pending before the Authorities as provided under section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. In this behalf the most important is the stance taken by the Settlement Department itself. Their parawise comments are available at pages 90-91 which sufficiently indicate that Azim-ud-Din had submitted his objections on the very day when the auction proceedings took place alleging that no plot by the description of S-4/B ever existed on the spot and that it in fact was the courtyard of House No,S-4 admittedly allotted to him. The Settlement Department further admitted that Azim-ud-Din submitted another application on 27-6-1968 on which the concerned clerk was asked to report. His report that the plot was auctioned on 26-8-1964 and subsequently, confirmed, was not considered to be correct because on 26-8-1964, the Deputy Settlement Commissioner, Jhelum had given the direction, on the application of Azim-ud-Din, that proceeding of auction should not be confirmed.
11. It is further commented by the Department that the Deputy Settlement Commissioner, after the report of the clerk had summoned the parties on 11-10-1968 and after their appearance he visited the spot on 20-6-1969 and summoned the E.T.O. Record and file of Azim-ud-Din. Thereafter, the matter remained in oblivion and was revived through another application of Azim-ud-Din filed on 1-3-1989. From such comments, we have no two opinions that the matter of auction in dispute was pending before the Settlement Authorities from 1968 onwards which D was finally decided through order, dated 12-8-1991.
12. Quite interestingly, the pendency aforesaid is almost admitted by respondent No,1 in his writ petition. The copy thereof is at pages 45-51. In ground "C" at page 49, the pendency of dispute is admitted but it is alleged that the application dated 27-6-1968 was decided by the Settlement Authorities on 20-6-1969 and that thereafter Azim-ud-Din did not pursue the matter. There is no order dated 20-6-1969 on record, rather, about 20-6-1969 the stance of the Department is that the Deputy Settlement Commissioner visited the spot on such date and summoned the record of E.T.O.
And file of Azim-ud-Din. In the absence of any final order passed on such application of Azim-ud- Din, the contents of ground "C" of the writ petition would be taken as admission of the pendency of matter before the Settlement Authorities. The Department itself was of the view that Plot No,S-4/B was fraudulently created by manipulation of the auction-purchaser, Mehdi Hassan in collusion with the lower staff. The examination of record by us indicates the same. We, therefore, hold that dispute before the Settlement Authorities within the contemplation of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 was pending and finally decided on 12-8-1991 perfectly in accordance with the available record and we further hold that nothing like Property No S-4/B was at all available for auction in favour of Mehdi Hassan.
13. The learned counsel alleged further that the respondent had successfully pre-empted the sale by the son of the auction-purchaser and hence his rights under the pre-emption decree are to be protected. We do not find ourselves in agreement with the argument for the simple reason that right of pre-emption is a right of substitution and not of resale. Whatever rights are so acquired by substitution, are bound to fall when the original transaction is found unlawful. Every subsequent transaction in the instant case is bound to sink along with the fate of original auction proceedings.
14. Consequently, both the appeals, are accepted, the impugned judgment, dated 30-9-1998 of the High Court is, set aside the order, dated 12-8-1991 of the Deputy Settlement Commissioner is maintained and a decree for permanent injunction is hereby granted in favour of the appellants (legal heirs of Azim-ud-Din), as prayed for in the suit concerned.