This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question orders, dated 6-5-1974 and 22-11-1976 respectively passed by Deputy Settlement Commissioner, Gujranwala and Settlement Commissioner Lahore Division, Lahore. It also prays for annulment of any previous order or deed of transfer in favour of respondent No. 3.
2. The facts briefly stated are that shop No. B-111-19-S-2, Hafizabad District Gujranwala was put to auction by the Settlement Department on 26-8-1960. One Nathoo son of Karim was declared the successful bidder at his bid of Rs.2,000. A copy of the bid sheet has been filed with this petition as Annexure 'A'. Nathoo according to the case of the petitioners also gave bid of another property, a residential house in which he again was the highest bidder; against first bid Token No. 206 was allegedly issued whilst against the second bid token No. Issued was B-20. The bid sheet of the second auction has also been annexed as Annexure 'R' to this petition. On the first bid sheet the successful bidder's name is given as Nathoo son of Karim whilst on the second the name given is only Nathoo.
3. One pertinent thing is that in the bid sheet of the shop in dispute Fazal Din respondent No. 3 is shown as the occupant. In 1962 against compensation book of Nathoo son of Karam Elahi which is Annexure 'P' to this petition part of the price of the house was adjusted and the compensation book which had deferred payment of Rs.3,956 stood exhausted. Some time in 1967 notice was issued to Nathoo son of Karim for payment of auction price of the shop in dispute. This notice could not be served as no Nathoo was available on the given address. Nathoo son of Karam Elahi, however, associated with the petitioners Nos. 5 and 6 for payment of the shop in dispute and an agreement of association, dated 9-4-1971 was submitted. The statements of the parties were also recorded on 9-4-1971, and the amount of Rs.2,000 the price of the shop was also deposited in the Treasury on the same date,
4. Fazal Din respondent No. 3 on the other hand made an application claiming possession of the house and also claiming that his N . C . S . Form seeking transfer of the house had not been considered when the shop was put to auction, and the bid closed in favour of Nathoo son of Karim, who had made the payment of the auction price. It was also urged in the application that Nathoo son of Karam Elahi had impersonated himself as Nathoo son of Karim to grab this property. On this application notice was issued to Nathoo son of Karam Elahi. The Additional Settlement Commissioner after obtaining the report from the Deputy Settlement Commissioner by his order, dated 27-7-1971 directed that the property be resumed and the Deputy Settlement Commissioner should proceed according to instructions. Against this order Nathoo, etc. Preferred an appeal before the Additional Settlement and Rehabilitation Commissioner, Lahore Division, Lahore Camp Gujranwala, who dismissed the same a: incompetent by his order, dated 14-9-1971. This order has been filed with the written statement as Annexure 'R/2'. After the dismissal the appeal the shop in dispute was transferred to Fazal Din respondent No. 3 on 13-10-1971, and a P T. D. Also issued in his favour on 18-10-1971.
5. Nathoo, etc. However, filed an appeal before the Settlement Commissioner, who by his order, dated 18-7-1972 remanded the case to the Deputy Settlement Commissioner to decide the matter afresh. In remand proceedings Fazal Din was impleaded as a respondent. The Deputy Settlement Commissioner Gujranwala by his impugned order, dated 6-5-1974 maintained the transfer of the shop in favour of respondent No. 3 and rejected the claim of the petitioners. Feeling dissatisfied Nathoo and the present petitioners filed a revision petition before the learned Settlement Commissioner, Lahore Division, Lahore who by his order, dated 22-11-1976 also impugned in the present petition rejected the same. Hence the present Constitutional Petition.
6. The learned counsel for the petitioners contended that the identity of Nathoo the auction- purchaser of the shop in dispute is the main and ,rucial point involved in the case and despite the proof having been furnished before the Deputy Settlement Commissioner which inter-alia consisted of the opinion of two handwriting experts of Finger Print Bureau, Punjab the learned Deputy Settlement Commissioner believed the testimony of a private handwriting expert produced by Fazal Din respondent No. 3 and held Nathoo son of Karam Elahi to be an impersonator of Nathoo son of Karim. In the same context the learned counsel submitted that another proof of Nathoo being the same person was that against the auction price of this shop the compensation book of Nathoo son of Karam Elahi had been deposited. It was also urged in this respect that reliance placed by the learned Deputy Settlement Commissioner on the naked eye examination made by him for holding that thumb impressions of Nathoo on 2 documents in question were different is not warranted by law.
7. On the contrary the learned counsel for the contesting respondent made the following submissions:-
(1) that the controversy raised in this petition revolves around disputed question of fact i.e. As to whether Nathoo who gave bid for the shop in dispute was the same person as Nathoo son of Karam Elahi who is successful bidder of a house and who had associated with the present petitioners, to pay the price of the shop in dispute which controversy obviously cannot be gone into in the Constitutional Jurisdiction of this Court. Reliance was placed in this regard on Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139;
(2) that auction was not confirmed in favour of Nathoo son of Karim even as has been categorically held in the order of Additional Settlement Commissioner, dated 14-9-1971 and, therefore, no enforceable right of the petitioners who are only associated has been infringed, which could be agitated against in the Constitutional jurisdiction of this Court. In support of the above contention the learned counsel referred to Kavasji and 2 others v. The Karachi Municipal Corporation, Karachi 1970 SCMR 524;
(3) that the knowledge of order, dated 13-10-1970 whereby the property was transferred to the contesting respondent was admittedly attained by petitioners on 25-4-1973 as narrated in para. 9 of the writ petition but despite availability of appeal a: NF well as revision against the said order no such steps were take which gave finality to the order of transfer in favour of respondent and this aspect of the matter also weighed rightly with the Deputy Settlement Commissioner while passing order, dated 6-5-1974;
(4) that not only that, even in the revision filed against the order of Deputy Settlement Commissioner, order, dated 13-10-1971 was not assailed and on this basis as well the learned Settlement 441, 10 Commissioner rejected the revision of the petitioners. It was contended that a veiled challenge to order, dated 13-10-1971 in the present proceeding, therefore, suffers from laches;
(5) that compensation book had not been deposited by Nathoo at the time of auction as alleged because had it been so done there was no necessity of giving notice to Nathoo for payment of the price as 114th of the auction price would have been deducted there from there and then as required by the instructions on the subject appearing at page 1197 of the Old Manual of Settlement Laws;
(6) that if the compensation book had been deposited at the time of bid of the shop in dispute or if the payment of the auction price was intended to be made through that compensation book, there was no occasion for getting adjustment of the price of the house against the same compensation book on 15-6-1962;
(7) that all the above circumstances lead to an irresistible conclusion that Nathoo son of Karam Elahi is a different person than Nathoo son of Karim who had given a bid at the time of auction of the shop in dispute and he having not claimed the shop, the present petitioners in collusion with Nathoo son of Karam Elahi tried to grab the property to which the contesting respondent has a lawful claim being on the own showing of the petitioners by filing bid sheet of the shop in dispute in possession thereof and thus entitled to the transfer of the shop even under section 3(1) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1974.
8. Having given consideration to the case I am of the view that the contentions raised on behalf of the petitioners have no force. It is settled law that disputed questions of facts are not open to question in the Constitutional jurisdiction of this Court especially when such controversies of facts have been resolved by the forums of exclusive jurisdiction by perusal of record and based on cogent reasons. In the case in hand, the learned Deputy Settlement Commissioner has on perusal of the record come to the conclusion that Nathoo son of Karam Elahi through whom the petitioners claimed a right was not the same person as Nathoo who had given bid at the auction of the shop in dispute. He in this regard has inter alia relied upon the testimony of one handwriting expert as against the other set.
9.Believing the testimony or report of one set of witnesses or the other is a matter in the exclusive jurisdiction of forums determining the questions of facts and a finding in respect of such a controversy would obviously be not assailable in the present proceeding on the basis that testimony of the expert relied upon was erroneous.
10. The basing of a finding on a naked eye examination can also be not held to be illegal when the purpose of such examination is to see whether opinion of one expert is to be relied upon or that of the other. In this regard the reasons advanced by the learned Deputy Settlement Commissioner otherwise appear to be unexceptionable.
11. I am also of the view that the contention of the learned counsel for the petitioner about the deposit of the compensation book at the time of auction of the shop in dispute is also not well based. Had the compensation book been deposited the price of the shop would have been adjusted against the same and in any case as pointed out by the learned counsel for the contesting respondent 1/4th thereof should have been deducted as provided by instructions on the subject. This having been not done and notice having been issued for payment of the price of the shop in dispute, which position could not be controverted by the petitioners even today, there is no scope left for holding that the compensation book had been deposited by Nathoo at the time of auction. That being so, the shop had been lawfully resumed to the compensation pool and price having admittedly been not paid and there being no approval of the auction, the filing of agreement-of-association which also has no approval of the Settlement Authorities will not confer any title on the petitioners to claim that the property could not be resumed from Nathoo. The property having been resumed to the compensation pool and the finding of Settlement authorities being that Fazal Din was in occupation thereof, the transfer to him also becomes immune from p attack.
12. In view of the foregoing discussion, I find no merit in this petition, which is accordingly dismissed, with costs.
H. B. T.Writ refused.