1. ANWARUL HAQ, C.J.-- This petition seeks leave to appeal against an order made by a learned Judge of the Lahore High Court on 27th of January, 1977, whereby a constitution petition filed by the petitioners to challenge the allotment and confirmation of an area of evacuee agricultural land, situate in village Sumera in Tehsil Lodhran of Multan district, in favour of the respondents, was dismissed in limine.
2. There has been prolonged litigation between the parties in respect of this land. Petitioners Nos. 1 and 2 namely, Ali Sher and Sher Khan, and their third brother Feroze obtained allotment of evacuee agricultural land in village Sumera, and the same was confirmed in their names in November/ December, 1952 in lieu of their verified claim in respect of agricultural land abandoned by them in India. The petitioners contended that their entire claims were not satisfied, and a considerable number of their produce index units were still pending satisfaction when on 2-10-1964 the land now in dispute, equivalent in value to 90 produce index units, was proposed in the name of Chhota, predecessor-in-interest of respondents 1 and 2 who had got his claim transferred to village Sumera from an adjoining village, named Garhi Mammer. The land was confirmed in his name on 3-12-1964. Only petitioner Sher Khan filed a belated appeal against this allotment on the 19th of August 1966. The other to brothers Ali Sher and Feroze did not file any appeal. The Deputy Settlement Commissioner accepted Sher Khan---s appeal by his order, dated the 6th of June 1968.
3. Thereupon the respondent filed a revision petition, which was accepted by the learned Settlement Commissioner by his order, dated the 16th of May. 1969, mainly on the ground that the appeal filed by Sher Khan was barred by the, and no cogent reason for condoning the delay had been shown by him. As a result the appellate order was set aside and the allotment and confirmation of the disputed land was allowed to stand in favour of the respondents.
4. Aggrieved by this revisional order dated the 16th of May. 1969, the to petitioners along with one Dost Muhammad, filed a Writ Petition in the High Court, but a learned Single Judge dismissed the same on the 28th of May, 1969. However, a Division Bench of the High Court accepted an appeal filed by the petitioners under the Letters Patent and the case was remanded to the Settlement Commissioner, Multan, for deciding the revision petition afresh after hearing the parties. On remand the learned Settlement Commissioner again accepted the revision petition of the respondents by his order, dated the 23rd of October, 1976. This officer endorsed the view taken previously by another Settlement Commissioner in the year 1969 about the petitioner's appeal being badly barred by the, and there being no explanation for condoning the delay. He also held that when the disputed land was proposed and confirmed in favour of Chhota, there were no pending units of appellant Sher Khan available in the village, and it was only on 9-4-1965 that his claim, alongwith the claim of his brothers was sent to the Central Record Office for increase in its value. On these findings he came to the conclusion that the appellate order dated the 6th June, 1968, had to be set aside and allotment of the land in favour of the respondents had to be restored.
5. The petitioners once again invoked the writ jurisdiction of the High Court, but a learned Judge dismissed their Writ Petition in limine by his order dated the 27th of January, 1977, upholding both the findings given against them by the learned Settlement Commissioner in his revisional order of the 23rd of October, 1976. It is contended on behalf of the petitioners that as the allotment and confirmation were made in favour of the respondents in the absence of the petitioners, and without any notice to them, the appeal filed on the 19th of August, 1966, was rightly treated to be within the by the Deputy Settlement Commissioner, and the learned Settlement Commissioner was not justified in treating the same as being barred by the; that the learned Judge in the High Court was in error in endorsing this finding of the learned Settlement Commissioner, specially when it was submitted that the allotment was void ab initio, as it was made on the basis of a misleading note recorded by the Patwari of the village on the RL-11 of the respondents that there was no claim pending from any of the sitting allottees of the village. Mr. Muhammad Sarwar submits that this was incorrect, as, in fact 345 units of petitioner Sher Khan, and a similar number of units of his brothers were also pending satisfaction in 1964 and it was incorrect to say that their claim had been sent to the Central Record Office for increase on the 9th of April, 1965. The learned counsel contends that under paragraphs 68 and 68-A the Rehabilitation Settlement Scheme the sitting allottees were entitled to preference over those whose claims had been transferred to the village from the adjoining villages. Finally, he submits that there was no question of any rateable distribution of land in this case, as the petitioners were entitled to preference as sitting allottees.
6. On behalf of the respondents it is submitted by Mr. Qamaruddin Khan that, in the first place, the petitioners other than Sher Khan have no locus standi in this case, as they had not filed any appeal against the allotment and confirmation of the disputed land in favour of Chhota. The learned counsel for the petitioners is not in a position to give any satisfactory reply to this objection, and, therefore, we propose to confine our discussion to the case of petitioner Sher Khan alone who had taken the trouble of filing an appeal against the disputed order of allotment.
7. On the factual plane, the position submitted by Mr. Qamaruddin Khan is that the entire claim of Sher Khan stood satisfied in 1952, as otherwise he could not have remained quiet for a period of 12 years until 1964, when the land was allotted in the name of Chhota. He states that the Settlement authorities have correctly taken note of the fact that the claims of Sher Khan and his brothers were sent to the Central Record Office for increase in their produce index units on 9-4-1965, that is, after the land had been proposed and confirmed in favour of Chhota. Mr. Qamaruddin Khan further contends that, in any case, Sher Khan had obtained three further allotments as follows:- On19-10-1966 under R.L. 306/69311 Units Oni1-11-1967 under R.L. 336/30662 Units On6-8-1968underR.L.386/336/139 Units with the result that along with the original 936 units obtained in 1952, Sher Khan had obtained 1349 units as against his total claim of 1195 units as indicated in his original R.L. II No.68.
8. An officer of the Central Record Office had also been summoned by us to assist us in the examination of the various documents relied upon by the contending parties. After taking his assistance and hearing the learned counsel for the parties, we have formed the view that no justification has been made out for our interference in the matter.
9. In the first place, we find that to different Settlement Commissioners, who dealt with the matter in the years 1969 and 1976, respectively, have taken the view that the appeal filed by Sher Khan against the disputed order of allotment in favour of respondent Chhota, was badly barred by the and there was no cogent explanation for condoning the delay. These officers have expressed the view that the proposal and confirmation of land were done in open assemblies and, therefore, constituted notice to all concerned. The Settlement Commissioner has further observed that even if limitation is counted from the date of knowledge, Sher Khan has not specified as to when he had acquired knowledge of the disputed allotment. In these circumstances this officer has held that the appeal filed after nearly 2 years of the disputed allotment was badly barred by the and the learned Deputy Settlement Commissioner had not consciously adverted to this aspect of the matter.
10. Mr. Muhammad Sarwar's contention that the initial order was void for the reason that a misleading note had been recorded by the Patwari that the claims of all the sitting allottees stood satisfied, has been repelled by the learned Settlement Commissioner by saying that the allotment was made on that basis. In any case, we cannot agree that the allotment became void ab initio simply because an incorrect note was recorded, as paragraphs 68 and 68-A only lay down a priority of categories, but do not prescribe a legal pre-condition for allotment to various categories. The learned Settlement Commissioner has also expressed the opinion that the note being undated, appears to have been inserted by the Patwari after the disputed allotment had been made. In these circumstances, the High Court was right in not interfering with this finding of the learned Settlement Commissioner as regards Sher Khan's appeal being barred by the. On this short ground alone, therefore, the present petition is liable to be dismissed.
11. In any case, the finding of fact recorded by the Settlement Commissioner as to Sher Khan's claim having been satisfied in 1952 could not be lightly interfered with by the High Court in writ jurisdiction. , _ Lastly, even on the factual plane, we find that the information given by Mr.Qamaruddin Khan is based upon certified copies of extracts from the R.L. II register of the village, and these copies do show that Sher Khan had obtained land on successive occasions, to the extent of 1349 units. As the total claim said to have been verified in his favour in 1952 was for 1195 units only it is not possible now to hold that he is entitled to get any portion of the disputed land. We are satisfied that even in equity the petitioner has no case.
12. As a result, the petition fails and is hereby dismissed.