MIAN BURHANUDDIN KHAN, J.--Leave is sought to appeal against the judgment and order of the learned Lahore High Court dated 10-3-1984 passed in ICA No. 8 of 1983. Facts necessary for the decision of this petition are that pursuant to the remand order of the Lahore High Court made in the Constitutional Petition (Writ Petition No. 120/R of 1976) case was taken up by the Settlement Commissioner, as Notified Officer. Parties were allowed to lead evidence, and file the written statements. He had noticed certain facts inter alia that Muhammad Ismail, Patwari, Halqa Manawala, Patti Jod Singh, Tehsil and District Sheikhupura had stated that he had not received the Claim Form while taking charge from the previous Patwari, and that he had not himself seen the Patwari writing the note dated 2-3-1965; that the Claim Form had been traced out. The Officer then referred to the statement of the previous Patwari dated 25-6-1977, and the statement of Bashir Ahmad, Inspection Muharrar, Office of the Saddar Qanungo, Sheikhupura, which were also to the same effect. He then took notice of the report of the Central Record Office in which it had been stated that the Claim Form was sent to Chak No. 27/GB, Tehsil and District Lyallpur, after verification, and that subsequently the claim was cancelled, and new entitlement created, which was available in the Central Record Office. The contention on behalf of the petitioners that the proposal made in favour of Sindhi Khan, was not sustainable as his Claim Form had been transferred out of the District and that the Central Record Office, had subsequently cancelled Claim Form No. 7950, and had not re-verified the same. The Claim Form, therefore, was not pending in Sheikhupura District, was thus accepted. After recording these facts the learned Officer made certain observations in favour of the petitioners which were conclusive. It is evident that the finding of the notified Officer that the area was available when sold to the petitioners' predecessor was based on facts and recorded after having considered the material before him. The learned Judge in directing that the Claim Form be re-verified; has taken a different view on facts. The finding of the Settlement Commissioner, therefore, that after the area had been sold in favour of the petitioners, the proposal was not entitled to be confirmed was not open to any exception. The learned High Court Judge was not sitting in appeal over the judgment of the Notified Officer.
2. The learned counsel contended that the mutation of inheritance was sanctioned in favour of the respondent two widows namely Mst. Bali and Mst. Hasan Bi and the children of Adalat Khan. The respondent's share, therefore, in the entire Estate was less than 20 Kanals. The order of the Notified Officer, was not challenged by the other set of heirs. The writ petition was liable to be dismissed on this short grounds. In any case the learned Judge could not restore the entire area in favour of the respondent, even if it be assumed that the proposal was entitled to be confirmed: secondly that in the mutation proceedings, which were initiated in the year 1973, it had been noticed expressly that no area was proposed against this claim. The conclusion is strengthened by other circumstances noticed above. Therefore, it appears that a fictitious proposal was got prepared after the repeal of the Evacuee Laws; thirdly; that the learned Judge has not considered the aspect that from 1964 when the proposal allegedly was cancelled, the respondent did not come out to agitate against this cancellation. He had questioned this cancellation only in 1975. By that date the property had vested in the Provincial Government, and sold in favour of the petitioners' predecessor. The petitioners cannot be divested of their rights to make room in favour of the respondent on the re- verification of his claim: and lastly that on the cancellation of the proposal made in favour of the respondent, the land in fact, belonged to the Central Government as part of the Compensation Pool. On the repeal of the Evacuee Laws this became the property of the Provincial Government and the Provincial Government made sale of this land in favour of the petitioners. We have examined the contentions raised by the learned counsel and have also gone through the judgment of the learned single Judge of the Sind High Court and find that during the hearing of the case, the record from the Central Record Office was summoned. The Naib Tehsildar appeared with the record in order to verify the entitlement of the right holder Sindhi Khan, father of respondent No.
1. Similarly the Consolidation Officer, Sheikhupura was examined to produce R.L.II and the relevant record. It was found that the Central Record Office had verified the claim of Sindhi Khan, received back in the Central Record Office, and on re-checking his entitlement was found to be more than what had originally been verified. Fard-e-Haqqiat was also examined by the learned Judge where originally an area of 44 Kanals was recorded and on re-checking Sindhi Khan was found to be entitled to an area of 54 Kanals and 2 Marlas. It was further observed by the learned Judge that the Central Record office had entered the claim after due correction was made and sent it back. It was also noted that a proposal was made in favour of Sindhi Khan on 17-8-1954 by a competent Rehabilitation authority and thereafter there appears an undated note of the Patwari and report of the Consolidation Officer dated 12-2-1964 to the effect that the claim form had been transferred, therefore, Khata was liable to cancellation, but the officials did not bother to make a self-contained note. It was their duty and obligation to mention the manner and mode in which and under whose order the claim was transferred and to which place it was sent this omission was found to be an irregularity which would not attract presumption of correctness of official acts. It is also evident that Khata was cancelled by R A/D SC Sheikhupura on 6-8-1964 but nobody was present nor the requirement of notice was adverted to. It thus only shows that the order of R A/D SC was merely in existence on the Khata and the respondent could not be burdened with the knowledge of that order. Having come to know the fact that the land in the meanwhile had been sold away to the petitioner by order dated 30-4-1975 passed by the AC/Collector, Sheikhupura, he approached the High Court by way of a writ petition which was accepted by a learned Judge vide order dated 14-2- 1977 and the case was remanded. After remand, the case was taken up by the Notified Officer who by order dated 20th December, 1980 held that respondent had unverified entitlement in Pakistan despite the fact that the Claim Form No. 7950 was sent to the Central Record Office for revivification and that new entitlement of the respondent was created and was still available in the Central Record Office though it had not been formally issued. The learned Notified officer in spite of this, thought it fit to completely disentitle the petitioner to the benefit of allotment of land against his entitlement.
3. The first question to be examined is whether the proposal which has been made in favour of the claimant (respondent) in the year 1954 has been lawfully cancelled. As already noticed above, the proceedings for, the cancellation of the proposal were based on misreading of the report made by the Patwari and the Consolidation Officer which stand contradicted by the Patwari's report for the year 1965 that the claim was available. The next irregularity in the order cancelling the proposal as contained in the order of R A/D SC is that he has passed the order in violation of the rules of natural justice inasmuch as he never bothered to issue notice to the respondents to grant them an opportunity to be heard. It is also not questioned, that the predecessor-in-interest of the petitioner was in fact, a claimant right holder. It stands verified that the claim of Sindhi Khan was genuine and in fact what had happened was that the Central Record Office instead of verifying the correct entitlement of Sindhi Khan, had verified it for lesser area and the claim having been received back by the Central Record Office but they failed in performing their legal obligations by sending the claim back after correct verification. It is not a circumstance on the basis of which a claimant right holder's valuable rights could be defeated. It was rightly observed by the learned Single Judge in pars. 8 of his judgment:-- "The failure of settlement' functionaries to perform their legal obligations cannot be construed as a circumstance against the petitioners or their predecessor-in-interest. If the Notified Officer had bothered to undertake the exercise to summon the records from the Central Record Office, it would have come to his notice that the petitioner, in fact, had an entitlement of 54 Kanals and 2 Marlas which was unfortunately not re-issued. This will be deemed to be a pending proceedings because the officials of Central Record Office are under obligations to verify the correct entitlement and send it back to the field staff for adjustment against the land proposed. In this view of the matter, I have been left with an unfortunate irresistible impression that the petitioner has not received a fair treatment at the hands of statutory functionaries who have been delinquent in the performance of their obligations with the result that this litigation has ensued for the last so many years."
Similar view was taken by the learned High Court Judges in their decision in I . C . A . No. 8 of 1983.
We, therefore, consider that this petition has no merit and the same, is, consequently, dismissed.