' This petition under Article 98 of the abrogated Constitution read with Provisional Constitution Order, 1969, calls in question the order, dated 21-5-1971 of the Settlement Commissioner with powers of the Chief Settlement Commissioner, West Pakistan, Lahore.
2. Dispute in this case relates to property comprising Khasras Nos. 1476/500 and 1477/500 situated in the revenue estate of Sialkot. The petitioners claim to be owners of the said property. This was allegedly mortgaged by Ilam Din and Rehmat Ali predecessors-in-interest of the petitioners to one Makhan Lal son of Ganpat Rai through a registered-deed dated 13-6-1944. Case of the petitioners is that the property, in dispute, was mortgaged with possession to Makhan Lal over which he raised some construction without the petitioners' permission. After partition, by a notification dated 13-12- 1961, the Muslim mortgagors were permitted to get their property redeemed by depositing money.
In consequence, the petitioners deposited a sum of Rs, 9,000 on 30-1-1960 in the State treasury whereupon the Rehabilitation Commissioner by order, dated 31-12-1962 ordered redemption of the property, in dispute. This was followed by an order, dated 14-12-1965 of the Deputy Settlement Commissioner directing cancellation of the original Provisional Transfer Order issued in respect of the disputed property and putting to auction the houses built thereon. It is alleged that the subordinate Settlement authorities failed to implement the aforesaid order till 1967 whereupon the petitioners were constrained to move an application under section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act (No, XXVIII of 1958) read with section 11 of the Displaced Persons (Land Settlement) Act (No, XLVII of 1958) to the Chief Settlement Commissioner for delivery of the possession after the property, in dispute, having been redeemed in pursuance of the notification issued by the Government. The Settlement Commissioner with powers of the Chief Settlement Commissioner by order, dated 21-5-1971 rejected the aforesaid application inter alia on the ground that no auction was warranted under section 20 (3) of Act No, XXVIII of 1958, inasmuch as, the petitioners failed to challenge the Provisional Transfer Orders and Permanent Transfer Deeds issued to the respondents long ago.
3. Raja Muhammad Anwar learned counsel for the petitioners contended that the impugned order of respondent No, 1, dated 21-5-1971 was wholly without jurisdiction, inasmuch as, in terms of section 20(3) of Act No, XXVIII. Of 1958, the Chief Settlement Commissioner had no jurisdiction to exercise suo motu power. The contention is devoid of any force. It is well settled that a person invoking jurisdiction of a particular Tribunal cannot be A permitted to challenge orders passed against him being without jurisdiction. The petitioners are, therefore, estopped to raise this point.
4. It is next contended that the property, in dispute, was non-evacuee property and mortgaged with the evacuee before partition, therefore, it did not vest in the Custodian or constitute the compensation pool or could be transferred by the Settlement authorities and that non-evacuee mortgagor's right to redeem the mortgage cannot be extinguished in view of the ratio laid down in M. A. Hafeez Khan v. Riaz Ahmad Mehra (1). In this context, learned counsel for the petitioners placed reliance on the order, dated 31-1-1962 of the Rehabilitation Commissioner, wherein it was held that the property, in dispute, was Muslim property and Imam Din and Rebmat All the predecessors-in-interest of the petitioners were entitled to its redemption. It is submitted that this order has attained finality, inasmuch as, the petitioners never challenged it before any appropriate forum. It was only the petitioners who approached the Chief Settlement Commissioner for the implementation of the said order in which the respondents were impleaded as a party. The respondents are estopped to challenge its validity. Reliance was also placed on the entries in Jamabandi for the year 1941-42 to show that it was an agricultural land and the petitioners were entitled to retain the construction, in that, it is alleged that the evacuee unauthorisedly raised the superstructure on the disputed land. In support thereof, reliance was placed on State Bank of Pakistan v. Khaledar Ma (2).
5. The above contention has no force. The respondents were not party to the proceedings before the Rehabilitation authorities, therefore, the order, dated 31-1-1962 of the Rehabilitation Commissioner is not binding on them. Furthermore, the portion of the property, in dispute, was transferred in favour of Muhammad Hussain respondent alongwith Muhammad Ibrahim on 18-12- 1960 vide Provisional Transfer Order bearing No, 219225 on the basis of which they had allegedly acquired a vested right in the property, in question. Without giving them any notice or opportunity of being heard, the Rehabilitation Commissioner could not have interfered with their proprietary rights. In so far as he did so, he contravened the principles of natural justice and this circumstance alone would invalidate the order, dated 31-1-1962 of the Rehabilitation Commissioner. My view is fortified by the dictum of the Supreme Court in Muhammad Siddiq v. Chief Settlement and Rehabilitation Commissioner (3). Similar is the position of the contesting respondents/ holders of Provisional Transfer Orders/Permanent Transfer Deeds. This being so, the order of the Rehabilitation Commissioner dated 31-1-1962 would not stand in the respondent's way.
6. Raja Muhammad Anwar last contended that it was not necessary to implead the respondents as a party for the reason that the Provisional Transfers Orders and Permanent Transfer Deeds issued in favour of the respondents were void documents, inasmuch as, the Muslim property could not be treated as evacuee property, therefore, non-existent in the eye of law, in view of the dictum of the Supreme Court in Yousaf All v. Muhammad Aslam Zia (4).
' It was further submitted that treatment of the property, in question, as Muslim property is a past and closed transaction, in that,. In pursuance of the order, dated 31-1-1962 of the Rehabilitation Commissioner, a portion of
(1) 1983 SCMR 803 (2) PLD 1963 Dacca 844
(3) PLD 1965 SC 123 (4) PLD 1958 SC (Pak.) 104 the property situated in Khasra No, 360 measuring 1 Kanal and 16 Marlas stood redeemed in favour of the petitioners by order dated 14-12-1965 of the Deputy Settlement Commissioner/Assistant Commissioner, Sialkot. The submission is that since the order has already been acted upon, it cannot be recalled at this belated stage.
7. Ch. Khurshid Ahmad learned counsel for the respondents took up the plea that the mortgagee had exchanged the land, in dispute, before 1947 and it was treated as evacuee property at the relevant ume before partition, therefore, no question arose for treating the same as Muslim property. In support thereof, he placed reliance on the site plan sanctioned by the Municipality, Sialkot ; copies of Khasra Girdawari for the year 1946-47 to 1949-50 ; copy of the assessment register ; admission of Imam Din and Rehmat Ali, predecessors-in-interest of the petitioners in copy of the plaint in the suit for possession entitled Imam Din and others v. Makhan Lal and others and admission in the petition under section 18 of Ordinance XV of 1949, dated 2-11-1954. He also raised other points. It is, however, not necessary to deal with those points in view of the order which I propose to pass. I may also point out that the learned counsel for the petitioners vehemently objected to the production of documents relied upon by the respondents for the first time in the High Court. He submitted that the petitioners have not shown any good cause for non-production thereof before the Chief Settlement Commissioner.
8. The last contention of the learned counsel for the petitioner is also not sustainable. It is true that a writ was issued in Yousaf Ali's case and a void order was set aside "together with the superstructure of rights and obligations" built upon it, but there were no equities I e that case against the appellant therein. In the instant case, the ownership, nature and character of the property, in question, is a disputed question of fact, therefore, it is C difficult to hold that the Permanent Transfer Orders/Permanent Transfer Deeds issued to the respondents were void documents. Additionally, even on the footing that the Provisional Transfer Orders and Permanent Transfer Deeds in favour of the respondents are void, the petitioners failed to challeng these documents for more than a decade, therefore, it has led to some far-reaching consequences involving proprietary rights. Ordinarily, I would have dismissed the writ petition on the ground of gross Jaches as the petitioner failed to pursue their remedies against the Provisional Transfer Orders Permanent Transfer Deeds issued in favour of the respondents, but the petitioners relied upon the judgment of the Supreme Court in M. A. Hafeez' case wherein it was held that non- evacuee mortgagor's rights are no extinguished by its having been treated as evacuee property. I am, therefore, inclined to condone the delay in the light of the dictum laid down in Pakistan v.
Sheikh Abdul Hamid (1), wherein the Supreme Court had condoned the delay of eight years. For the same reasons, it would be unjust and inequitable not to allow the respondents to raise objections against the orders of the Rehabilitation Commissioner, dated 31.1-1962 to which they were not party, notwithstanding the fact that they also failed to challenge it.
9. Having given my anxious consideration to the submissions made b learned counsel for the parties and the case-law cited at the Bar, I am inclined to hold that the contentions raised in this petition involve determination on a question of fact i,e, as to whether or not the predecessor-in- interest of the petitioners were owners of the disputed property, as contemplated b Mtion 3 (2) (b) of the Pakistan -(Administration of Evacuee Property
(1) PLD 1961 S Act (No, XII of 1957) on 1-3-1947 and what is its nature and character. This Court, in the exercise of constitutional jurisdiction, cannot determine this question upon the basis of fresh evidence produced for the first time. The non-production of documents in time may also be examined in the light of the principle enshrined in Order XIII, rule 2, C. P. C. Which provides :- "No documentary evidence in the possession of power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof ; and the Court receiving any such evidence shall record the reasons for so doing."
The rationale behind this rule is to prevent fraud and not to penalis parties for non-production of documents in time. The Court has a discretion in the matter which is to be exercised on sound judicial principles, depending upon the facts and circumstances of each case. In the instant case, the respondents had no opportunity to produce this documentary evidence before the Rehabilitation Commissioner, being not party to the proceedings. If the said documents are authentic, rule 2 of Order XIII, C. P. C. Should not be allowed to bar its production, inasmuch as, the consideration of these documents is necessary for determining the real controversy involved in this case i,e, the ownership, nature and character of the property, in dispute, at the relevant time. It is, therefore, a fit case for remand in the light of the dictum laid down in Syed Azmat Ali v. Chief Settlement Commissioner (0, wherein it was observed :- "In a proceeding of this extraordinary nature where a superior Court calls for the records of judicial or quasi.Judicial authorities or Tribunals, which are not subject to its appellate jurisdiction, the superior Court no doubt has the full power to do justice but does not as a rule, even in a case where it does interfere, substitute its own decision of the inferior authority or Tribunal. Where it is felt that questions have been left undecided by- such Tribunal or authority or a question has to be decided after taking of fresh evidence, it is more appropriate to return the case to the authority or Tribunal concerned for a decision in accordance with law, after quashing the order complained against."
For the reasons above, I quash the impugned order, dated 21-5-1971 of the Settlement Commissioner with powers of the Chief Settlement Commissioner, West Pakistan, Lahore, and remand the case to the learned Member (Settlement and Rehabilitation), Board of Revenue, for its entrustment to a notified Officer to be disposed of in accordance with law, after giving due notice to each of the parties herein. The parties are directed to appear before the learned Member on 12- 12-1983 for further proceedings.
' The notified Officer shall decide the case afresh after determining as to whether the predecessors-in-interest of the petitioners were owners of the disputed property and what was its nature and character before partition in the light of the judgment of the Supreme Court in M. A.
Hafeez's case. The parties shall be at liberty to produce documentary evidence in support of their respective contentions. The parties are litigating for over two decades. The notified Officer shall, therefore, finally decide this case as expeditiously as possible, but not later than sixty days. To this extent the writ petition is accepted, but there shall be no order as to costs.
(1) PLD 1964 SC 269