S. A. NUSRAT, J.-- This judgment will dispose of Civil Appeals No. K-118 and K-119 of 1980 filed by Lal Khan and Sultan respectively as the contesting respondent in both the appeals, Zafaryab Hussain, is the same and the leave was granted on a common question of law in both the appeals.
2. In Civil Appeal No. K-118 of 1980, the appellant Lal Khan a displaced person from non-agreed area, was allotted survey No.54, measuring 2.28 acres of land in Deh Pano Khalso, Taluka Ghotki, District Sukkur, and a Khatooni was issued to him in respect of the said land on 31-5-1960 and he is stated to be in possession of the said area of land since then. Zafaryab Hussain, the contesting respondent made an application to the Deputy Commissioner and Settlement Commissioner
(Land) Sukkur on 10-10-1973 stating that this land was allotted to him on 24-12-1959 and, therefore, its subsequent allotment in favour of the appellant was without jurisdiction. The record of the case was examined by the learned Settlement Commissioner who found as fact that Zafaryab Hussain was the prior allottee of the survey number in dispute having been allotted the same on 29-10- 1959, while the appellant was allotted the same land subsequently on 31-5-1960 and as such the first allottee, Zafaryab Hussain, was held entitled to hold the land while allotment in the name of the appellant was cancelled. With such findings the application of the respondent Zafaryab Hussain was allowed by order, dated 24-11-1973.
3. Aggrieved by this order the appellant moved the High Court of Sind by filing a constitutional petition wherein he, inter alia, submitted that the order of the Settlement Commissioner was passed against the principles of natural justice as he was not afforded any opportunity of being heard. The constitutional petition was, however, dismissed on 22-10-1978 on the ground that while the service of notice was disputed by the appellant, the respondent Zafaryab Hussain had filed an affidavit to the contrary and since the record was not sent for to verify this fact it was to be presumed that notice was duly served on the appellant. It was not disputed before the learned High Court that the allotment in favour of Zafaryab Hussain was prior in point of the and, it was, therefore, held that the second and subsequent allotment in favour of the appellant was of no effect and had to be cancelled.
4. So far the appeal of Sultan, appellant in Civil Appeal No.K-119 of 1980 is concerned, the fact:, are that he to is a displaced person who was allotted survey number 91 measuring 4.25 acres in Deh Pano Khalso, Taluka Ghotki, District Sukkur alongwith other lands and Khatooni was also issued in his favour on 12-6-1963. The appellant is stated to be in possession of the land ever since. This land to, it appears, was earlier allotted to Zafaryab Hussain and he, therefore, filed a petition before the Deputy Commissioner/ Settlement Commissioner (Land), Sukkur on 10-10-1973 alleging that the areas which had earlier been allotted to him had illegally been again allotted to Sultan, appellant.
In pursuance of the said petition, the matter was heard by the Settlement Commissioner on 24-11- 1973 alongwith the case of Lal Khan (appellant in Civil Appeal No. K-118 of 1980). In the order of the learned Settlement Commissioner, it was noted that Zafaryab Hussain was present alongwith his Advocate while one Abdul Rahim was present on behalf of Sultan appellant. As regards merits, it was found that according to the record Zafaryab Hussain was allotted survey number in dispute on 26-3-1960 while the same survey number was again allotted to the appellant Sultan on 12-6-1963.
Accordingly, the prior allotment was maintained and the subsequent allotment in the name of the appellant was cancelled.
5. Aggrieved by this order, the appellant Sultan approached the Sind High Court by a Constitutional Petition and it was, inter alia, argued that no notice of the revision petition was served on him and that Abdul Rahim, who was shown to have appeared on his behalf, was not known to him and he was not his relative but some fictitious person. Therefore, the order on revision application was passed behind his back and against the principles of natural justice. The learned Judge in the High Court, with regard to this contention, observed that the order of the Settlement Commissioner showed that both the parties were present and since original record had not been summoned to show that no notice had been served on him he had simply made an assertion which was not supported by evidence and, therefore, the presumption under section 114 of the Evidence Act that all official pests are properly performed had not been rebutted and that he had not discharged the burden lying upon him to show that no notice had actually been issued. The Constitutional Petition of the appellant was, accordingly, dismissed by order, dated 19-11-1978.
6. Leave to appeal was granted from the above to judgments of the Sind High Court, dated 22-10- 1978 and 19-11-1978 passed on the Constitutional Petitions of the appellant Lai Khan and Sultan respectively to examine the short and the only contention raised on their behalf as to whether the appellants had been issued a notice and granted hearing by the Settlement Commissioner before cancellation of allotments in their favour.
7. While considering the petition for leave to appeal, the record of the Settlement Commissioner was summoned with a view to ascertain the correct position. After having seen the record, a statement was made by the learned counsel appearing for the appellants that no notice was served upon the appellants in relation to the proceedings before the Settlement Commissioner, Sukkur, who had passed the orders on the to applications of Zafaryab Hussain, respondent.
8. However, Mr. Ahmadullah Farooqi, Advocate-on-Record, of the caveator, who was also present refrained from making any comments at that stage of the case.
9. The record summoned from the office of the Settlement Commissioner has been examined. The to impugned orders of the Deputy Commissioner/ Settlement Commissioner (Land), dated 24-11- 1973 are contained in to separate files bearing case "REH.T. No. 5 Agreed" and Case "REH.T. No. 9 Agreed" pertaining to Lai Khan and Sultan appellants respectively. These files appear to be in respect of their claims as shown on the file covers and do not relate to provisional proceedings in which the impugned orders, dated 24-11-1973 were passed by the Deputy Commissioner/ Settlement Commissioner (Land) Sukkur. This is clear from the fact that revision applications filed by Zafaryab Hussain respondent, copies whereof have been filed with the above appeals in this Court, are not borne on the record and there are no order sheets regarding any proceedings taken on the said revision applications.
10. In this view of the matter, no exception can be taken to the findings of the learned High Court, because in the absence of relevant record the factual position remains as incontrovertible as it was at the stage when the Constitutional Petitions were dismissed by the learned counsel for the appellants was unable to controvert the facts found by the learned Settlement Commissioner and upheld by the learned High Court that the allotments in favour of Zafaryab Hussain, respondent, were prior in point of the. The learned counsel was not able to show to us as to how any subsequent allotment could have been made in favour of the appellants without the cancellation of prior allotments which hold the field. The High Court, in the circumstances, was right in holding that the subsequent allotments made in favour of the appellants were of no effect and the same being nullity did not create any vested right which could not be disturbed.
11. For the reasons mentioned above, we find no substance in these appeals which are dismissed with no order as to costs.