1. This is a Constitutional Petition by which the three petitioners: Shahid-un-Nabi Khan, Anwar-un- Nabi Khan and Rafat-us-Sabah have impugned the order of Settlement Commissioner, Hyderabad, dated B-8-1973 restoring the allotment of four Survey Numbers namely 314, 340, 357 and 567 in Deh Khanpur (now District Shikarpur) in favour of the respondent Hashmatullah.
2. The petitioners' case is that the disputed serial Nos. Which were an evacuee property were allotted to them as per allocation order, dated 17-11-1962 (Annexure 'G'). The said order was issued after verification of their claims in the light of M.L.R: 89 and consequent surrender of the excess land and repurchase by them of the surrendered land. The serial Nos. In dispute are part of the area surrendered which was subsequently repurchased by the petitioners. In June 1971 he said respondent dispossessed the petitioners from serial Nos. 340 and 567, asserting his ownership not only in respect of these serial Nos. But also over the other two disputed serial Nos. 314 and 357 even though the petitioners continued to remain in possession of the latter serial Nos. On enquiry they came to know that the respondent who is claimant /displaced person from the prescribed area had managed to have issued a revised 'Khatoni' dated 15-2-1958 in lieu of the original Khatoni, dated 5-11-1957, in his favour. It also came to their notice that although the revised Khatoni was actually issued subsequent to the issuance of the allocation order, dated 17-1-1962 in their favour, it was got ante-dated and through manipulation was shown to have been issued on the date mentioned therein. It was in the revised Khatoni that disputed serial Nos. Are mentioned to have been allotted to the said respondent. The area of his entitlement is also shown to have been unduly increased in the revised Khatoni. Accordingly the petitioners challenged the revised Khatoni issued in favour of the respondent in appeal before the Deputy Commissioner and Additional Settlement Commissioner who by his order, dated 12-1-1972 allowed the appeal and cancelled the allotment of disputed serial Nos. From the name of the respondent. Aggrieved by this order the respondent filed revision petition before the Settlement Commissioner. Thus by the impugned order the Settlement Commissioner reversed the order of Additional Settlement Commissioner, restoring the allotment of the disputed serial Nos. In favour of the respondent. In the context of this factual background the present Constitutional Petition has been filed. I heard the learned counsel for the parties at great length and with their assistance also examined a great mass of the documents, relevant for disposal of this petition.
3. The learned counsel for the petitioners made the following submissions:
(a) that 52 documents admittedly produced by the respondent at the time of arguments before the Settlement Commissioner were not proved in legal manner nor opportunity was given to the petitioners to produce evidence in their rebuttal;
(b) that the admitted total entitlement of the agricultural land to be settled on the respondent was 22 Acres 23 Ghuntas which could not be increased as has been done in the revised Khatoni issued in his favour;
(c) that the first Khatoni dated 5-11-1957 issued in the name of the respondent was in the nature of permanent Settlement and as such it could not be revised and replaced by second Khatoni.
4. Taking up the first contention of the learned counsel for the petitioners, it goes without saying that several documents were produced and relied upon by the respondent Hashmatullah in course of the arguments before the Settlement Commissioner. The objection of the petitioners' learned counsel was that the said documents some of which were forged were illegally taken into consideration by the Settlement Commissioner with the result that his conclusions based on such material turned out to be erroneous. To support his argument he referred to section 23 of Displaced Persons (Land Settlement) Act, 1958 (hereinafter\LI11110Y101 1111 1111011, VJ referred to as 1958-Act) which, inter alla, lays down that every officer appointed under this Act for the purpose of making any enquiry or hearing any appeal shall have powers of civil Court under the Civil Procedure Code in regard to discovery and production of any document. In other words he meant to say that the documents sought to be relied upon by the respondent were required to be produced in accordance with relevant provisions of the Civil Procedure Code. In spite of the above position taken by the learned counsel for the petitioners, it was not denied by him that no objection was raised either to production or consideration of the documents as evidence. In view of this concession on behalf of petitioners, the learned counsel for the respondent submitted that since no objection was taken to the admissibility of documents in evidence in the lower Court, it was not permissible to raise such objection at this belated stage. In support of his argument he pressed into service several precedent cases. The first case referred to in this connection is reported as Malik Din v. Muhammad Aslam PLD 1969 SC 136 wherein it was held: "For, the document was admitted into evidence, without any objection, in the trial Court. It is now well-settled that an objection as to formality of proof must be taken at the earliest stage and if it has not been taken, then it cannot be allowed to be taken at the appellate stage. Another case on the same point relied upon by the learned counsel was of Abdullah v. Abdul Karim PLD 1968 SC 140 wherein it was observed: "The Code of Civil Procedure provides for admission of documents and it is now well-settled that if objection to the formal proof of a document has not been taken at the earliest point of time it cannot be taken subsequently and certainly not in appeal."
5. In the above-reported case of Abdullah, the learned Supreme Court also took note of the case of Privy Council reported as Gopaldas v. Shri Thakurji AIR 1943 P C 83 in which the Judicial Committee of the Privy Council observed as follows: "Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial."
6. In the case of Shamsuddin v. Pakistan and another PLD 1960 (W.P.) Kar. 231 it was held: "Mr. Ishaque has contended that since the Assistant Surgeon was not examined, this certificate is irrelevant, but it is too late in the day to object in an Appellate Court that a piece of evidence has been brought on record in a manner not provided for in the Evidence Act. The case quoted of AIR 1937 Cal. 697 itself quotes Master of Rolls in Richard v. Sanders as saying 'three certificates were tendered in evidence and objected to and yet they were not in.' Here there is no trace of any objection made at the time by the applicant. Mr. Ishaque says that he had objected orally. If so, it was his duty to make that objection substantial by putting in a written application. The case upon this subject are several."
7. The next case in the same context is of Muhammad Din v. Bashir Ahmed PLD 1977 Lah. 267 wherein the view taken was that if admission of the documents in evidence was not objected to, such documents can be safely held to have been duly proved. Another Lahore case relied upon in the same connection was of Sheikhupura Central Co-operative Bank Ltd. v. Tawakkal Ullah PLD 1977 Lah. 763 wherein it was held "For that point of view also it is not justified in these circumstances and at this late stage of appeal to raise objection to a common manner of proving and exhibiting documents as was adopted and accepted by all parties in the Court below."
8. The next case in the same line is of Gul Habib v. Habib Bank Ltd. PLD 1983 Pesh. 31 wherein it was held: "These documents were produced at the time of recording the statement of Mr. Dost Muhammad, Manager of the Bank-, and were admitted in evidence and duly exhibited without any objection by the opposite side. All these documents were stated to have been signed by the defendant (appellant herein). If any objection respecting the signatures of the defendant (appellant herein) on these documents was to be taken, the same should have been taken at that time, which would have then put the plaintiff-Bank on alert to formally prove them. Having not done so at the proper time, the defendant (appellant herein) could neither be permitted to raise such objection at the arguments stage before the learned trial Judge nor before this Court."
9. In the Lahore case reported as Abdul Ghafur v. Mukhtar Ali PLD 1983 Lah. 103 it was held: "13. The appellants have assailed the document Exh. P.1 which is a copy of Parcha Zamindaran Ishtimal Arazi Village Aghapur, Tehsil and District Bahawalpur and have contended that this document was not proved in accordance with the provision of section 76 of the Evidence Act.
10. Village Aghapur was under consolidation operations. The Patwari Halqa furnished the copy of this document which was exhibited without objection. The appellants have cited Khizar Muhammad and others v. Ghulam Muhammad and others PLD 1962 Lah. 492 in order to support their contention. Conversely PLD 1968 SC 140 has been referred to, which lays down that objection as to formal proof of document must be taken at the earliest point of time and it cannot be taken subsequently and certainly not in appeal. In this manner, no objection can be heard at this stage on the document Exh. P.1 which is reflective of the fact that both Mukhtar Ali and Faiz Ali Pre- emptors are owners in Village Aghapur whereas the appellant are strangers in this village."
11. In view of the above authorities it can be safely held that since the petitioners had allowed the documents in question to be produced in evidence without taking any exception in the Court of Settlement Commissioner, they cannot be permitted to object to production thereof at this late stage. Moreover it was conceded by the learned counsel for the petitioners that even the petitioners themselves had adopted the same method of producing their documents in the said lower Court. His grievance, however, was that their documents were not taken into consideration by the learned Settlement Commissioner. I have carefully gone through the impugned order. It is found that the above charge of the learned counsel has no truth in it. It appears from the order that the learned Settlement Commissioner has taken note of the documents produced on behalf of the respondents. Not only the documents find mention in the order but also they were perused along with other record by the learned Settlement Commissioner before passing of the impugned order.
12. Merely because each document produced by them is not discussed separately, it will not be justified to draw an inference that the documents were not given the consideration they actually deserved.
13. From the documents relied upon by the respondent, the learned counsel for the petitioners singled out the revised Khatoni, dated 15-2-1958 which was the main target of his criticism. According to the learned counsel for the petitioners the revised Khatoni is a forged document inasmuch as that it is ante, dated and is shown to have been issued on 15-2-1958 although it was actually issued in 1962. In support of his contention he referred to the respondent's application for revision of his Fard- e-Haqiat which according to the learned counsel was made on 18-8-1961. According to him it was on that application that the respondent's entitlement was revised and the revised Fard-e-Haqiat was issued and transferred from Sahiwal to Shikarpur District on 20-1-1962. Keeping the above factual position in view, the learned counsel argued, it was absurd to hold that the revised Khatoni could be issued on the date mentioned therein. In reply to above arguments, the learned counsel for the respondent vehemently denied that the revised Khatoni was ante-dated or that it was issued on the application made by the respondent on 18-8-1961. He submitted that the respondent's claim was verified for 22 Acres 23 Ghuntas which included garden area subsequently added on the respondent's appeal filed on 24-12-1951. Clarifying the issuance of the revised Khatoni on 15-2-1958, he pointed that on representations of the claimants who had settled at Khanpur, Taluka Shikarpur the then Rehabilitation Commissioner made a general order that the said claimants be given the land of their choice. In pursuance of that order, he maintained, the old R.L.II Register was replaced by the new register and in this way hundreds of Khatonis were revised and like other claimants revised Khatoni was also issued in favour of the respondent on 15-2-1958. In this connection he referred to the relevant documents (copies of R.L. II Register) which clearly support his assertion that the S. Nos. Withdrawn from the respondent's earlier Khatoni were re- allotted to other claimants on the same date on which the revised Khatoni was issued in his favour.
14. Reference was also made by the respondent's learned counsel to land revenue receipts pertaining to the years 1958 and 1959, which too support the respondent's case inasmuch as that the cultivable land borne on the revised Khatoni was in his possession for the said years and consequently the allegation of ante-dating of the revised Khatoni stands falsified. The learned counsel for the respondent also referred to the application, dated 16-4-1960 of one Shamsuddin, the attorney of petitioner Anwar-un-Nabi by which he prayed for cancellation of the allotment of three of the disputed serial Nos. (340, 357 and 567) and in their place for allotment of alternate land, as according to the said attorney the disputed serial Nos. Were either Muslim property or were doubly allotted. After obtaining the report of S.T.R. (supervising Tapedar, rehabilitation) the Rehabilitation Mukhtiarkar passed the following order on 18-4-1960 on the said application "Being double allotment the disputed serial Nos. Mentioned above are cancelled from the subsequent allottee Anwar-un-Nabi as per his request, necessary corrections be made in Rehabilitation record."
15. Apart from above my attention was also drawn to copies of the corrected R.L.II Register and the Khatoni issued in favour of the petitioner, which had been obtained by Muhammad Sarwar son of the respondent Hashmatullah after the above order was passed on the application of the petitioners' own attorney. It was clear from the corrected R.L.II Register and Khatoni that the disputed serial Nos. Are scored off in the said documents.
16. I have also come across photo copy of Mashirnama under which possession of S. Nos. Allotted to the respondent as per revised Khatoni was delivered in presence of Mashir. The Mashirnama is dated 2-4-1958. I was also shown the photo copy of the receipt indicating that the respondent had paid even the rehabilitation fee on 9th March, 1959 i.e. Subsequent to issuance of the revised Khatoni in his favour.
17. As regards the alleged application made by the respondent on 18-8-1961 for revision of his entitlement; the learned counsel for the respondent explained that it was in fact his Uzurdari for Shamilat land which after verification from Central Record Office, Lahore came with a note that Shamilat land was already verified in the first Fard-e-Haqiat. The only clarification made in the note was that the area to which he was found entitled included the garden area. Thus according to him the said application had nothing to do with issuance of the revised Khatoni.
18. Apart from above, the learned counsel for the respondent also referred to some documents, which, on the contrary, give rise to doubts as to the manner in which the disputed serial Nos. Were included in the allocation order issued in favour of the petitioners. In this connection I have also noted the observations made by the learned Settlement Commissioner about the two officers namely Mr. Rafiullah, Assistant Rahibilitation Mukhtiarkar and Syed Sardar Ahmed, Deputy Commissioner and Additional Settlement Commissioner who have been helpful to the petitioners in Settlement of their claim.
19. After taking into consideration the argument addressed at the Bar and the documents available on record. I am of the view that the petitioners learned counsel has not succeeded in his attempt to showthat the revised Khatoni is the result of forgeries or that it is ante-dated or that it was actually issued in 1962. Since the other two points raised by the learned counsel for the petitioners are inter- connected, they may be disposed of together. The learned counsel's submission was that the respondent being a claimant from the prescribed area was governed by Rehabilitation Scheme of 1956 read with Supplementary Rural Scheme No.l which was prepared under section 14 of Land Settlement Act, 1958 and was enforced, w.e.f. 28-8-1959. He contended that in the case of respondent, once his entitlement was determined as reflected in the first Khatoni issued in his favour, settlement of his claim attained the finality and it could not be subsequently reopened nor his entitlement could be revised. Therefore, according to the learned counsel, the revised Khatoni was illegal inasmuch as that new serial Nos. Including the four disputed serial Nos. Were substituted and that the area of entitlement was increased. I regret I cannot accept this argument.
20. First of all the learned counsel could not point out any specific provision in the scheme applicable to the respondent which has been violated by replacing one set of serial Nos. By totally different set of serial Nos. In the Khatoni. As for modification in the original entitlement to which the respondent was found due, it seems the learned counsel was labouring under, misapprehension. As a matter of fact the entitlement of the respondent was determined in terms of P.I. Units. It would be noticed that the entries with regard to P.I. Units due to the respondent as mentioned in the R.L.II Register prepared for the first time tally with those given in such register subsequently prepared. In the first register the respondent was shown to be entitled to 767.916 P.I. Units (Annexure 'C'). Same number of P.I. Units are mentioned even in the modifiedR.L.II Register which is the basis of revised Khatoni.However the acreage given in the first Khatoni has been increased in the revised Khatoni.
21. This difference in acreage is not difficult to explain. The fertility of land depends upon the kind of soil which varies from place ..To place. Banjar Qadeem land is less fertile than the Banjar Jadid land.
22. Accordingly one will be entitled to more acreage of Banjar Qadeem than that a Banjar Jadid. In the instant case the respondent opted for the Banjar Qadeem land instead of the Banjar Jadid land and hence in the revised Khatoni he was given more acreage of land than he was allotted previously as per earlier Khatoni. This also explains why hey opted for less fertile land when more fertile land was available. Like him many other claimants are shown to have got Banjar Qadeem land instead of Banjar Jadid land as two Acres of Banjar Qadeem are equivalent to one Acre of Banjar Jadid.
23. For the foregoing reasons the impugned order of the Settlement Commissioner is unexceptionable and 1 see no justification to interfere with it. Accordingly the petition is dismissed with no order as to cost.