1. WAHIDUDDIN AHMAD, J.-This order will dispose of Civil Petition No. 56-P of 1970 and Civil Petition No. 57-P of 1970, in which a common question of law is involved.
2. In Civil Petition No. 56-P of 1970, the property in dispute is Khasra No. 4370 measuring 16 marlas of land situated in village Topi, Tehsil Swabi, District Mardan. It was owned by Akhtar, Faqir and Masam. This land was mortgaged by them to one Bhagat for Rs. 62 vide Mutation No. 650/1126, attested on the 24th August 1895. Bhagat died and his mortgagee rights were inherited by his son Param alias Harian and on his death his rights were inherited by his sons Gordatta Mal and Harichand. On the 10th June 1931, Gordatta Mal and Harichand mortgaged their mortgagee rights in the above Khasra numbers, along with some other Khasra numbers, to Habib Shah. Mst. Zamro Jan petitioner is the successor-in-interest of Habib Shah. Fateh Khan respondent No. 1 is the successor- in-interest of Akbar and others the original owners.
3. In Civil Petition No. 57-P of 1970, the property in dispute is Khasra No. 4371, situated in village Topi, District Mardan, It was owned by Hayat Mir and Mohammad Amir. On the 24th August 1895, they mortgaged the above land to Bhagat for Rs.
67. In this case also the rights of Bhagat were inherited by his son Param alias Harian and on the death of Param his rights were inherited by his sons Gordatta Mal and Harichand. They mort--gaged their mortgagee rights in the above Khasra numbers, along with some other Khasra numbers, to Habib Shah on the basis of mutation No. 1.071 attested on the 10th June 1931. Fateh Khan is the successor-in-interest of the owners Hayat Mir and Mohammad Amir. Mst. Zamro Jan and others, the petitioners in the present case, are the successors-in-interest of Habib Shah, the sub-mortgagee. It is alleged that the petitioners have cons--tructed abadi on the above Khasra numbers.
4. In both the cases Fateh Khan respondent filed an application for restitution of the mortgage under the provisions of N.-W.F.P. Restitution of Mortgaged Lands Act XXXII of 1956 in the Court of Collector, Swabi. This application was accepted on the 5th November 1956. Mst. Zamro Jan challenged this order before the Additional Commissioner (Revenue), who by his order dated the 15th March 1957, remanded the case back to the lower Court.
5. Later on, Fateh Khan filed an application before the Assis--tant Rehabilitation Commissioner, Mardan, on the 23rd May 1960, for the redemption of the above-mentioned Khasra numbers. This application was rejected on the 25th June 1960. His appeal to the Deputy Rehabilitation Commissioner, Mardan, was also dismissed on the 17th July 1961. The case was remanded to the Assistant Rehabilitation Commissioner for deciding it on merits. Mst. Zamro Jan and other's filed second revision petition which was dismissed by the Settlement and Rehabilitation Commissioner, Peshawar, on the 22nd January 1962.
6. The Assistant Rehabilitation Commissioner, Mardan, on remand, accepted the application for redemption by order dated the 6th February 1963. Mst. Zamro Jan and others challenged this order before the Deputy Rehabilitation Commissioner, Mardan, who by order dated the 7th October 1963, remanded the case after framing issues regarding the ownership of Fateh Khan and the improvements made by the mortgagees. The matter was then taken to the Additional Settlement and Rehabilitation Com--missioner, Peshawar, who by his order dated the 23rd January 1964, came to the conclusion that the ownership of Fateh Khan has already been settled and remanded the case for determination of the improvements. Mst. Zamro Jan filed second revision peti--tion which was rejected on the 24th September 1964.
7. Thereupon, the petitioners, on the 21st October 1964, filed two writ petitions under Article :8 of the Constitution against Fateh Khan and other respondents and claimed that an appro--priate writ be issued to the effect that the orders dated the 17 July 1961, 2nd January 1962,6th February 1963,23rd January and 24th September 1964, were illegal and without jurisdiction. The writ petitions were dismissed by a learned Single Judge on the 31st January 1966. The matter was then taken in Letters Patent Appeals. Only two points were argued before the High Court. Firstly, it was argued that the petitioner had purchased the mortgagee rights from Gordatta Mal and Harirhand and that no evacuee interest was involved in tile case and the settlement authorities had no jurisdiction in the matter. Secondly, it was urged that the property in dispute had never been treated as evacuee property before the 1st January 1957, and could not, therefore, now be treated as evacuee property according to section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957. Both the contentions were repelled and the Letters Patent Appeals were dismissed by two separate judgments on the 12th May 1970. The petitioners have challenged these orders in two separate petitions before us.
8. Mr. Abdul Samad Khan, learned counsel for the petitioner, has only urged one point in support of the petition. He has contended that the property in dispute was never treated as evacuee property before the 1st January 1957, and could not, therefore, be now treated as evacuee property according to section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957. The learned counsel contended that the High Court has wrongly stated that the property in dispute was treated as evacuee property by the Custodian on the 14th September 1956. In support of his contention, he has referred to the order of the Custodian in Miscellaneous Revision No. 22 of 1955.
9. On the other hand, Mr. M. Younus Shah, learned counsel for the respondents, has contended that this point was not raised by the petitioners in their writ petitions and the Letters Patent Bench has disallowed to raise it in the Letters Patent Appeals. The contention of the learned counsel is not without force. The learned counsel for the petitioners was unable to satisfy us that this point wasth raised in the writ petitions. In these circumstances, the Letters Patent Bench was perfectly justified in disallowing to raise this point before it. The petitions are dismissed.