This case pertains to an area of 6 kanals comprised in Khasra Nos 690/1, 679, 1648/684/2, 686, 685 and 678 situated in the revenue estate Tallian Dehati, Tehsil and District Rawalpindi. This land was proposed in the name of Khalil Ahmad Siddiqi (respondent No. 2) on 26-9-1964, It appears that later on he sold away .The same (or some area out of the same) to Sheikh Mohammad Jamil, respondent No. 3 and Mirza Ashraf Ali, respondent No. 4. The things remained quiet for some time but on 22-5-1971 the learned Additional Settlement Commissioner proposed and confirmed the same area is petitioner Allab Dia. Respondents 2, .3 and 4 filed joint appeal which was accepted by: the learned Settlement Commissioner by means of his order dated 1-9-1971 and the allotment in favour of Khalil Ahmad Siddiqi was maintained and confirmed. Being aggriev--ed of that order the petitioner has come up in writ petition to this Court.
2. Before proceeding further it is necessary to reproduce the relevant portion from the order of the learned Settlement Commissioner. It reads as follows "A judicious consideration of the position brings us to the conclusion that to the first place on the basis of allotment and possession the present appellant has sold a major portion ;of the allotted land on which house had been constructed. The second legal position of the appellant is sound and he has Justified in presuming that the allotment has been finalized in his name. Finally the cancellation is without proper legal notice and the appellant has been condemned unheard. The circumstances and the legal position brings us to the only warranted conclusion that the appellant has had the allotment and has also a preferential claim as compared to the respondent and the impugned order in favour of the respondent is bad on facts and law and is not maintainable. 1, therefore, accept the appeal quash the impugned order and confirm the allotment in the name of the present appellant Khalil Ahmad Siddiqi. Parties are left to bear their own costs.
3. The petitioner has averred in the writ petition that the learned Settlement Commissioner has wrongly assumed that respondents 2 to 4 had already sold the land in question to somebody else and even if they had sold away the same they had no authority to do because it had not yet been confirmed in their name. The point has duly been attended to in the order of the learned Settlement Commissioner where he has recorded that a major portion of the allotted land had been sold on which houses had been constructed. This is a finding of fact and nothing has been brought to my notice save the said averments of the petitioner in the writ petition and, in these circumstances, I cannot obviously take exception to the view of the learned Settlement Commissioner especially when the petitioner, it appears, did not move in this matter well in time and allowed the construction on the spot to go on.
4. The next point raised in the petition was that the land had not been confirmed in favour of Khalil Ahmad Siddiqi and, therefore it could still be allotted to the petitioner. The contention has no merit.
The learned Settlement Commissioner has observed-(to excuse repetition) that the second legal position of the appellant is sound and he was justified in presuming that the allotment has been finalized in his name." (If I may add because he was given possession and also because there were raised constructions on the spot to which nobody obstructed)-There is nothing in the present writ petition to show that the presumption which has been raised in favour of Khalil Ahmad Siddiqi was not warranted on the facts and in the peculiar circumstances of the present case. It is significant to mention that, as already stated, the proposal was made on 25-9-1964 and possession was also delivered to the allottee, inasmuch as, there were constructed houses on that area. In these circumstances the learned Settlement Commissioner was justified in not becoming too technical with regard to the argument. Raised before him on the subject.
5. The next point to be taken note of is that a perusal of a copy of R. L. II (Annex. 'C') shows that some move to- cancel the proposal of Khalil .Ahmad Siddiqi was made for the first time on 1-I1- 1967 when the Additional Settlement Commissioner-(Malik Khurshid Ahmad) directed the issuance of the notice to the Claimant (Khalil Ahmad Siddiqi).
However, there is nothing on the record to suggest that in those proceedings ,Khalil Ahmad Siddiqi was actually served or that any notice to his transferees was at all issued. This point seems to have been considered by the learned Settlement Commissioner and rather conceded by the counsel of the present petitioner, inasmuch as, while mentioning the arguments of Khawaja Abdul Qayyum counsel for Allah Dia he wrote as follows "As against these points Kh. Abdul Qayyum, counsel for the respondent pointed out that during the proceedings a mention has been made that a notice had been issued to the present appellant however, it is not proved that service has been arranged of the notice on the appellant."
If the learned Settlement Commissioner in these circumstances ignored the order of the learned Additional Settlement Commissioner he did no wrong in setting aside the same and obviously I cannot restore such an order which was for the defects hereinbefore mentioned absolutely void.
6. Another point taken in the petition was that the claim of the petitioner was superior. The finding of the learned Settlement Commissioner however, is to the contrary and there is nothing on the present record to rebut that findings. The last point taken in that petition is that the appeal filed by the respondents before the Settlement Commissioner was time--barred and that the Settlement Commissioner had no right to extend the period of limitation as section 5 of the Limitation Act was not applicable to the proceedings under the Displaced Persons (Land Settlement) Act, The point does not seem to have been pressed before the learned Settle--ment Commissioner inasmuch as, it is conspicuous by its omission from his order, and as such, cannot be allowed to be raised for the first time to the course of writ jurisdiction.
7. The last but not the least I am of the opinion that the order of the learned Settlement Commissioner seems to be fairly just and equitable, in as, it does substantial justice and purports to maintain the pretty old allotment of the respondent, which for no fault on his part was not put up for confirmation by the department and in these circumstances if the learned Settlement Commissioner was of the view that it was not just and proper to upset the same on mere technicalities he did no wrong. The respondent was a claimant displaced person and was otherwise eligible to have land against his claim form No. 217/008666, quoted in Annex. C'. The petitioner, although the proposal remained open for three years, filed no objections thereto in time and I see no equity in his favour so as t warrant interference in my discretionary writ jurisdiction.
8. The case duly appeared in the list. However, learned counsel for the petitioner was not present. I sent messages to the Bar Room and to his house but nobody turned up. I have consequently dealt with the points raised in the writ petition. The case is dismissed both on merits and as well as for default. There shall be no order as to costs.