The circumstances in which this writ petition has been filed are as under:-
2. It is alleged that the petitioner had some inherited lands in Deh Lal Odho, Taluka Garhi Yasin, District Sukkur, including an undivided share in survey Nos. 335, 394 and 167. The other co-owners were Shiomal, Guralmal, Jhamandas, Sitaldas, Salamatrai and Jhangaldas whose interest was to the extent of 6 annas in a rupee. It is alleged that in 1921, by a registered deed of partition, the co- sharers divided the lands and the said survey numbers were allotted to Guralmal and Shiomal, and the petitioner ceased to have any interest therein. In 1940, the Manager of Encumbered Estates, who had taken over the 'estate of Lachiram, sold and conveyed his 4 annas undivided share in the said survey numbers to the petitioner. The other co-sharers with the exception of Shiomal, became evacuees. It is further alleged that in 1958, the petitioner made an application to the Mukhtiarkar and Assistant Rehabilitation Commissioner, Garhi Yasin; for the partition of the lands in which the petitioner was a co-owner in such a manner that the petitioner was awarded separate survey numbers. This was done by the said Mukhtiarkar and Assistant Rehabilitation Commissioner, by the order dated 19-2-1959, and the survey numbers in question were given exclusively to the petitioner.
It is however, admitted that the said survey numbers had been allotted to the respondent No. 4 and the petitioner filed an application before the Deputy Collector and Deputy Settlement Commissioner, Shikarpur for its cancellation. It is alleged that the respondent No. 4 had appeared before the said Deputy Collector and Deputy Settlement Commissioner through his attorney and made a statement that he had no objection if the said survey numbers were restored to the petitioner and alternate land was allotted to him. The lands were ordered to be restored to the petitioner and the Deputy Collector and Deputy Settlement Commissioner ordered alternate lands to be given to the respondent No. 4 by order dated 17-8-1964. However, in February 1965, the respondent No. 4 filed an appeal before the Deputy Commissioner-cum-Deputy Settlement Commissioner (Land), Sukkur. The petitioner had proceeded to India on a temporary visa on 15-8- 1965, aid because of the war between India and Pakistan, he could not return till 2-11-1966. During his absence, the Deputy Commis--sioner and Deputy Settlement Commissioner (Land), Sukkur, set aside the order passed by the Deputy Collector and Deputy Settlement C3mmissioner, Shikarpur, and ordered that the old Partition should be given effect to.
3. The petitioner apprised of the turn of the events, filed an application before the Settlement Commissioner, Khairpur, accompanied by an application for the condonation of delay, for the review of the order, but the same came to be dismissed on the ground that the application was time-barred. The petitioner has challenged the orders dated 10-1-1966 and 27-12-1966 being unlawful and of no legal effect.
4. The petition was admitted to hearing in the following terms:- "This petition' involves complicated questions of fact and we would not be inclined to investigate them in this petition under Article 98. However, one grievance which was made before us and which requires to be considered is that when the petitioner filed a revision application before the Settlement Commissioner (Land) he had applied for condonation of delay and had filed an affidavit in support of it, and though the Settlement Commissioner dismissed the revision as time-- -barred he disregarded the application for condonation of delay. We would, therefore, admit this petition only on this point, i. e., whether such an application for condonation of delay was made and in the circumstances of the case the Settlement Commissioner should have considered this aspect before dismissing the petition on the ground that it was barred by limitation."
5. It is an admitted position that the petitioner had made an application for the condonation of delay in which it was stated that at the material time, he was in India. A counter---affidavit on behalf of the respondents Nos. 1 to 3, has been filed by Muhammad Bakhsh who is an Assistant Rehabilitation Mukhtiarkar and Assistant Settlement Commissioner (Land) at Sukkur, in which it is stated that on the revision application file! By the petitioner, the Officer Assistant of the Settlement and Rehabilitation Commissioner, Khairpur, that is, the respondent No. 1, had put a note in which he had given a summary of the grounds for the condonation of delay under section 5 of the Limitation Act. The order of the Settlement Commissioner, Khairpur, on the very face of it, shows that the petition came to be dismissed on the sole ground that it was barred by time. The counter-affidavit filed by the Assistant Rehabilitation Mukhtiarkar has neither been controverted by the petitioner nor any appli--cation was made to summon the record. There is therefore no reason to disbelieve that the application and the note put up by the office was very much there and was duly considered by the learned Settlement Commissioner while reaching his conclusion though he did not expressly mention the same in his order.
6. It was further argued by Mr. Naeemuddin, learned counsel for respondents Nos. 1 to 3, that otherwise too, the provisions of section 5 of the Limitation Act would not be attracted in cases under the Displaced Persons (Lands Settlement) Act, 1958, as has been held in a string of authorities (Seer Syed. Mahmud Alam v. Syed Mehdi Hussain and others (PLD 1970 Lah. 6)). He further argued that according to section 29 (2) (a) of Limitation Act, only sections 4, 9 to 18 and 22 of the said Act would be applicable as the same were not expressly excluded under the Scheme of Settlement Laws; and even section 18 would be of no avail, because it cannot be said that the respondents had been responsible for defrauding the petitioner. The period of limitation for the filing of the revision petition was only 60 days under the law, and it could not be filed thereafter.
7. Mr. G. M. Qureshi, learned counsel for the petitioner, however, contended that the appeal filed by the respondent No. 4 before the learned Deputy Settlement Commissioner (Land) was itself time- barred. That would be wide of the mark, because, apart from other questions of disputed facts, the petition had been admitted for the consideration of only one point, namely, whether the application for the condonation of delay was made, and whether the same has been considered by the learned Settlement Commissioner, Looking to the circumstances disclosed, it cannot be said that the order passed by the learned Settlement Commissioner Khairpur was without any lawful authority or of no legal consequence. I will, therefore, dismiss the petition but with no order as to costs.
S. A. H.