' TASSADUQ HUSSAIN JILLANI, J.---Facts giving rise to the instant petition briefly stated are that both the parties are refugee right holders from District Hoshiarpur. Both of them received the verified claim for the property left there. The claim of the predecessor-in-interest of the respondents, namely, Sheikh Muhammad Ahmad was based on a judgment and decree dated 10-4-1946 in a pre-emption suit pursuant to which he had deposited the decreetal amount on 21-5-1946.
However, on account of the partition of the Subcontinent the judgment and decree could not be given effect to in the Revenue Record and the name of Dr. Niaz Muhammad, predecessor-in- interest of the petitioners who had purchased 1/3rd share out of 96 Kanals, 8 Marlas from a co- sharer of the respondent Sheikh Muhammad Ahmad continued to appear in the Revenue Record. It was the said sale which was successfully pre-empted by the latter. He filed an application before the Rehabilitation and Settlement Authorities in terms of para 52 of the Rehabilitation Scheme Part II. The said paragraph reads 'as follows:- "52. The Additional Rehabilitation Commissioner (Lands) and Additional Secretary Resettlement and Colonies Department will deal with such applications for claims to land allotment in the Punjab as are based on registered deeds and decrees of Civil Courts, effect to which had not been given in the revenue records of the prescribed territory in India, due to the perturbed conditions prevailing in those areas before the petition. Other refugee claimants with similar claims may, if they so desire, file their petitions with the Additional Rehabilitation Commissioner (Lands) and Additional Secretary Resettlement and Colonies Department (Reference endorsement No,7195-R(L), dated the 10th September, 1951)."
' This application was hotly contested by the petitioners, inter alia, on the ground that the documents produced by Sheikh Muhammad Ahmad were not admissible as they had not been proved in terms of the Evidence Act. The Additional Settlement Commissioner vide its order dated 11-6-1962 allowed the said application as follows:- "As the original file had been lost, the difficulties of the petitioner in producing direct evidence must be appreciated. The fact that the salient features of the transaction of the sale, institution of the pre-emption suit, the decree in favour of the petitioner depositing the decreetal amount in the Treasury by the petitioner, all put together substantiate the case of the petitioner. The remedy provided by paragraph 52 was of a special nature, and it was to my mind meant to cover cases of hardship of the type that the case under consideration is. It is a pity that the petitioner has so far remained deprived of the benefits which his successful litigation would have conferred on him.
The documentary evidence put on record overwhelmingly supports the contention of the petitioner. I, therefore, allow the application and order that the decree, dated 10-4-1946 mentioned above should be implemented according to existing instructions and the claim of the petitioner verified accordingly. A copy of this order should be sent to the officer on Special Duty Central Record Office, Lahore, for necessary action."
' This order was challenged by Dr. Niaz Muhammad before the Settlement Commissioner on 17-12- 1965 who set aside the afore-referred order in the following terms:- "As regards the discrepancies in the area and description of the Land has submitted an affidavit stating that as consolidation of holding operations had taken place in the village, therefore, the area and Khasra number had been changed. I am afraid this is not valid explanation as the consolidation operation cannot increase the area by 16 Kanals and 11 Marlas as is the difference in the present case. He has not been able to meet the objection in regard to the admissibility of the copy of the Civil Court order. Moreover, a perusal of the record shows that the learned Additional Rehabilitation. Commissioner had overlooked a very important aspect of the case in admitting the claim of the respondent over the land in dispute. According to his own showing the decree obtained by the respondent was in preemption suit and he did not prove that it was got executed by him and possession of the pre-empted land was ever delivered to him. Thus, unless this was done this decree was of no effect so far as the right of the petitioner to retain possession of the land was concerned. There is also no satisfactory proof on record that the sale price deposited by the respondent with the Civil Court was ever received by the petitioner."
' The afore-referred order was challenged by the respondents in Writ Petition No,539-R of 1966 which was allowed vide judgment dated 25-4-1975 and the case was remanded to the Settlement Commissioner for deciding the matter afresh after hearing the parties with directions/observations as under:-- "(i) Sh. Muhammad Ahmad was eligible/entitled for Relief under paragraph 52 of Part-II of Rehabilitation Scheme despite its deletion in 1959.
(ii) Execution of pre-emption decree and withdrawal of the amount deposited by the vendee was not at all necessary or relevant for the purpose of vesting of the title in the pre-empted sale.
(iii) The provisions of Evidence Act were not strictly applicable to the proceedings before the Settlement Authorities."
2., The afore-referred order was challenged by the petitioner-Dr. Niaz Muhammad before this Court in Civil Appeal No,240 of 1977, the same was dismissed on 22-3-1988 which judgment was reported as DR. NIAZ MUHAMMAD MANN AND OTHERS v. SH. MUHAMMAD AHMAD AND ANOTHER (1988' SCMR 1016) and the judgment of the learned High Court remanding the case to the Settlement Commissioner was upheld. The Secretary (S&R)/Notified Officer/Administrator (R.P)/ Settlement Commissioner Punjab (Urban and Rural), Board of Revenue, Punjab, Lahore vide order dated 12-9- 2003 decided the case pursuant to the said remand ordet (which stood upheld by this Court). In rejecting petitioner's claim and giving effect to the judgment and decree of the Civil Court dated 10-4-1946, the Notified Officer observed as under:-- "7. I have considered the arguments advanced by the parties and also carefully examined the available record and the evidence recorded in the case. It is an established fact that the share of land purchased by Dr. Niaz Ahmad Maan, in village Sathina, District Hoshiarpur, was successfully pre-empted by the petitioner. Sh. Muhammad Ahmad. The suit of pre-emption filed by the petitioner was decreed by the court of Shri Hans Raj, Civil Judge, 1st Class, Hoshiarpur, vide judgment and decree dated 10-4-1946 and the decreetal amount was deposited in the government treasury on 21-5-1946. In view of these facts Dr. Niaz Ahmad Mann, ceased to be the owner of land, which automatically vested in the petitioner on 21-5-1946, the date on which the decreetal amount was deposited by the petitioner in the Government Treasury.
8. It is, therefore, obvious that the claim filed by Dr. Niaz Ahmad Maan, on the basis of the entries reflected in the Special Jamabandi, was based on suppression of material facts and was as such nullity in the eye of law. Resultantly, the allotment of evacuee land obtained by said Dr. Niaz Ahmad Maan, was also without title and the result of fraud and misrepresentation.
9. It is further observed that there were certain minor discrepancies in the case regarding the amount deposited in the Treasury, the extent of area, for which claim was filed by Dr. Niaz Ahmad Maan, which are not material for the just decision of the case. It was proved beyond doubt that the petitioner successfully pre-empted the land purchased by Dr. Niaz Ahmad Maan."
' Aggrieved of the order passed by the Notified Officer, the petitioner challenged the same in Writ Petition No,146- R of 2003 which has been dismissed vide impugned judgment.
3. Learned counsel for the petitioners seeks leave to appeal on the ground that the Notified Officer and the learned High Court have fell in error in holding that respondent-decree holder had deposited the decreetal amount. He referred to Order XX, Rule 14 of Civil Procedure Code to contend that non-deposit of the decreetal amount was sufficient to non suit the respondent- plaintiff; that instead of depositing Rs,8,600 which was the decreetal amount, respondent had merely deposited Rs,6,800 and that this concurrent misappreciation of record had resulted in mis- carriage of justice.
4. We have heard learned counsel for the petitioners and have given anxious consideration, to the submissions made and have gone through the judgment as also the orders passed by the Notified Officer pursuant to the remand order to which reference has been made above.
5. Before us learned counsel has confined his submissions only with reference to Order XX, Rule 14 of Civil Procedure Code and contended that since respondents-decree holders had not deposited the decretal amount in total the suit merited to be dismissed and the judgment and decree, therefore, is of no consequence. He has not raised any objection with regard to admissibility of the documents which were relied upon by the respondents to press their claim. We further note that the contention being raised before us was neither raised before this Court in the earlier round of litigation nor before the Secretary (S&R)/Notified Officer where the matter was argued at length.
6. In the earlier round of litigation, petitioner had questioned the admissibility of certain documents on which was based respondent's claim i,e, the judgment and decree dated 10-4-1946 and the deposit slip evidencing deposit of the decreetal amount dated 21-5-1946. In DR. NIAZ MUHAMMAD MANN AND OTHERS v. SH. MUHAMMAD AHMAD AND ANOTHER (1988 SCM R 1016), this Court dismissed petitioner's case/objections on the ground that though under para 29 of the Rehabilitation Settlement Scheme, right to refugee claimant is to be given in accordance with the entries in Jamabandi but Rehabilitation Commissioner is empowered to look into hardship cases where the Jamabandis did not reflect the claim though was otherwise genuine. Upholding the remand order of the High Court, it was observed by this Court in DR. NIAZ MUHAMMAD MAAN ETC. v. SH. MUHAMMAD AHMAD (ibid) as under:-- "The learned counsel for the appellants has referred to a number of decisions in support of the contention but has omitted to take note of the decision in Muzaffar Hussain and 3 others v. Mst.
Ghulam Fatima and 20 others (PLD 1976 Lah. 1226) where such a question directly arose and was dealt with. The very exercise of looking for and identifying the exceptional hardship cases is not by its very nature a judicial function and hence the strict rule of law of evidence would not apply to an inquiry being conducted by the Rehabilitation Authority under paragraph 29 or paragraph 52 of the Rehabilitation Settlement Scheme. Besides in the proceedings before the Settlement Authorities there were two different documents, one was a certified decree of the civil Court on the pre-emption claim and the other was the original challan of the deposit of the decreetal amount in court. One the documents was the original, duly stamped, having the signatures of the authorities concerned and the other was the certified copy officially given to the party. These could be taken into consideration by the authorities in coming to a conclusion with regard to the claim advanced by the respondent. The view taken by the learned Judge in the High Court, on the facts of the case and the nature of the inquiry that was being conducted would appear to be correct." (emphasis is supplied)
7. Even before the Notified Officer in the current round of litigation, petitioner never took up the plea which is being raised before us. The Notified Officer in his order dated 12-9-2003 had candidly reproduced the grounds urged by the petitioner before him and those were as follows:--
(i) Dr. Niaz Muhammad Mann was owner of land measuring 49 kanals, 1 Marla in village Satiana whereas the alleged preemption decree is for 32 kanals, 9 marla only. There is absolutely no justification on Record for reduction in the area.
(ii) The Khatonee number mentioned in the original application does totally with the Khatonee number given in the decree.
(iii) There was no Consolidation operation in village "Satiana" before partition therefore, the difference/variance in area, Khasra Numbers and Khatonee Numbers have not been satisfactorily explained by the petitioner.
(iv) The copy of decree dated 10-4-1946 is said to have been obtained after August 1947 and the same does not bear attestation by Notary public or the High Commission for Pakistan in India.
(v) The alleged decree was never executed against the respondent.
(vi) The respondent never received the decretal amount.
(vii) The Challan cannot be relied upon in evidence without proof of signatures in writing of the person alleged to have signed the same.
(viii) The claimant whose entitlement is based on Special Jamabandi cannot be deprived of his rights to retain allotted land."
8. In MST. KABIR-UN-NISA AND ANOTHER v. SE! ILEMENT COMMISSIONER (LANDS), LAHORE AND 3 OTHERS (1975 SCM R 493) the facts are distinguishable also but for two reasons the said judgment would be relevant: firstly, in a case under Rehabilitation and Settlement Scheme having lost before the Settlement Commissioner, petitioner in the said case filed a Constitution petition and certain facts were being urged which were never urged before the Settlement Commissioner and secondly, the parameters of paragraph 29 of the Rehabilitation and Settlement Scheme were commented upon. The Constitution petition was dismissed and this Court upheld thee. Judgment of the High Court and while dismissing the petition observed as under:-- "In the first place, we find that these facts were not urged before the learned Settlement Commissioner when he passed the impugned order on the 27th of November 1973. In the second place, the two paragraphs of the Rehabilitation Settlement Scheme relied upon by the petitioners have no application. Under Paragraph 29 of the Scheme rights are to be given to a claimant in accordance with the entries in the special Jamabandis received from the prescribed areas of India, but in a case where hardship is caused by the application of this rule in individual cases, reference is to be made to the Rehabilitation Commissioner, presumably for the relaxation thereof This paragraph is intended to cater for those alienations which could not be given effect to in the last Jamabandi prepared before the Partition of the subcontinent, and it would indeed work hardship on the land-owners concerned if they were to be penalized for the circumstances created by the Partition of the country. The paragraph, however, was certainly not intended to apply to cases where the alienation was said to have taken place, or rights were acquired, fifteen years before the Partition. The petitioners have not, even before us, furnished any satisfactory explanation for their failure to have their purchases mutated in their names at the proper time. In these circumstances, there was no justification for giving the petitioners any benefit under paragraph 29 of the Rehabilitation Settlement Scheme. The facts in the precedent case were entirely distinguishable, as they did constitute a case of hardship, the land having been purchased in that case in 1940 in India and the transaction having been entered in the revenue records, but some litigation was still pending with the result that final entries could not be made in the Jamabandi. " (emphasis is supplied)
9. The case of the respondent No, 2 in the instant case is squarely similar to the circumstances alluded to in the portion underlined in the preceding para.
10. Like the petitioner in MST. KABIR-UN-NISA AND ANOTHER v. SETTLEMENT COMMISSIONER (LANDS), LAHORE AND 3 OTHERS (ibid), in the instant case as well the petitioner urged certain facts for the first time in the Constitutional jurisdiction and assailed the judgment and decree on which respondent's claim was based on altogether new ground. It is rather late in the day for the petitioners to take up this ground in Constitutional jurisdiction for the first time. The issue raised is a question of fact which ought to have been raised before the Notified Officer. The Notified Officer having considered the submissions made and examined the record have come to the conclusion that the decreetal amount was duly deposited on 21-5-1946 to which no exception could be taken.
Even otherwise if Zar-e-Panjam is added to Rs,6,800 which according to the petitioner was the only amount deposited by the respondents the total amount deposited would be around Rs,8,600 which according to the petitioner's own showing was the decreetal amount.
11. For what has been discussed above, we do not find any merit in this petition which is accordingly dismissed. Leave refused.