SAAD SAOOD JAN, J.-- This is an appeal by special leave from the judgment and order dated 22- 10-1975 of a learned Single Judge of the Lahore High Court in Writ Petition No. 687-R of 1971 whereby a direction was given to the Settlement Commissioner to examine the entitlement of Muhammad Din, respondent No.2, to part of a plot which had earlier been permanently transferred to the predecessor-in-interest of the appellant.
2. The plot in question measures about 10 Marlas and is situate in the Main Bazar of Canal Park, Lahore. Soon after Independence. Muhammad Din, respondent No.2, and his brother Muhammad Sharif, who were refugees, took over its possession and raised some structures thereon.
Nevertheless, the Settlement authorities included it in the auction list and on 30-5-1960 put it to auction. One Mst.Bakhtawar offered the highest bid of Rs.5,600. On 25-6-1960 the Additional Settlement Commissioner confirmed the auction proceedings. On 26-10-1962 after she had paid the entire price she obtained a permanent transfer deed in respect of the plot. After her death her heirs sold it to the appellant. The appellant died during the pendency of this appeal which is now being pursued by his legal representatives.
3. According to Muhammad Din, respondent No.2, he and his brother had filed a form under Scheme No.VI for the transfer of the plot in their favour. No order was made on their form before the auction was held. As soon as they learnt about the auction they moved an application for the cancellation of the auction proceedings and for the transfer of the plot to them. In pursuance of this application an Inspector from the department visited the spot and made a report on 20-6- 1960. In the report prepared by him the Inspector confirmed their assertions both with regard to their possession over the plot and the existence of the Katcha-Pacca structures raised by them. On receipt of this report the Deputy Settlement Commissioner made an inquiry from his office if the plot had been auctioned and the proceedings confirmed by the Auction Committee. The office replied that though the plot had been auctioned but the auction proceedings had not yet been confirmed. Despite this report the Deputy Settlement Commissioner dismissed their application.
From the order of the Deputy Settlement Commissioner they filed an appeal before the Additional Settlement Commissioner. On 30-7-1960 when their appeal was fixed for hearing their counsel died. For this reason they were un-represented when the appeal was called for hearing.
Consequently, the Additional Settlement Commissioner dismissed the appeal in default. They applied for the restoration of the appeal on that very day. No order was even made on this application. Subsequently, the entire record relating to their case was misplaced' by the department.
4. It appears that on 20-10-1966 Muhammad Din and his brother sent a petition to the Governor which was forwarded by the latter's Secretariat to the Settlement department. On 4-2-1967 the office of the Additional Settlement Commissioner informed them that they should file an appeal, which would be considered for admission on merit. In pursuance of this advice respondent No.2 alone preferred an appeal from the order dated 30-5-1960 of the Deputy Settlement Commissioner whereby the plot was put to auction. Together with the appeal he also moved an application under section 5 of the Limitation Act for condo nation of the delay. By an order dated 18-2-1971 the Additional Settlement Commissioner dismissed the appeal on the ground of limitation as well as for the reason that as the first appeal had already been dismissed no second appeal was entertain able. Muhammad Din preferred a revision petition before the Settlement Commissioner. It was dismissed on 24-7-1971. He then invoked the constitutional jurisdiction of the High Court to challenge the legality of the orders of the Settlement Department whereby the plot was put to auction and his appeals and revision petitions were dismissed.
5. In the period intervening between the dismissal of the appeal preferred by Muhammad Din and his brother on 30-7-1960 and institution of the writ petition in the High Court some further developments took place. Muhammad Sharif, brother of Muhammad Din voluntarily surrendered possession of the portion which was under his occupation to the appellant. There is now no dispute with regard to this portion which in area covers about half of the plot. We are now concerned only with the portion which was in the possession of Muhammad Din. After purchasing the plot from the heirs of Mst.Bakhtawar the appellant filed a suit for the possession against Muhammad Din. The suit was decreed ex parte. In execution of the decree the appellant obtained possession of Muhammad Din's portion as well. On his part, Muhammad Din filed a declaratory suit challenging the legality of the ex parte decree which was dismissed.
6. The learned Single Judge in the High Court who disposed of the writ petition took notice of the report dated 20-6-1560 of the Rehabilitation Inspector wherein he had found that Muhammad Din and his brother were in possession of the plot and after raising Katcha-Pacca structures were residing therein. The learned Judge also noticed that while confirming the auction proceedings the Additional Settlement Commissioner was ignorant of the said report. He found that the application of Muhammad Din and his brother for the restoration of the appeal had remained un-disposed of.
He observed that since Muhammad Din and his brother had made constructions on the plot in question and had applied for its transfer, the order of putting the plot to auction was void ab initio.
Consequently, the second appeal preferred by Muhammad Din could not be thrown out on the ground of limitation. He also observed that the Settlement Commissioner while dismissing the revision petition had given no specific reasons in support of his order. On the basis of these findings he directed the Settlement Commissioner to find out if Muhammad Din had in fact applied for the transfer of the plot and if so whether tie was entitled to transfer of the same in accordance with law.
7. It seems that in issuing the writ the learned Single Judge ignored a number of circumstances which had important bearing on the case before him. To begin with, there was no evidence at all that Muhammad Din or his brother had ever applied for the transfer of the plot. In support of their contention that they had submitted a form in that regard they placed on record a Photostat copy of a receipt, dated 17-11-1959 issued by the office of the Deputy Settlement Commissioner. The learned counsel for the appellant pointed out that this receipt related not to the plot in question but to a shop which was occupied by the appellant's brother Umar Din. It is not necessary to comment upon the assertion of the appellant for the receipt clearly relates to an N.C.S. Form submitted in respect of a shop located in Street No. 13 of the Main Bazar. On the other hand, in paragraph 2 of the writ petition Muhammad Din has himself mentioned Street No. 36 as the location of the plot. Clearly, the receipt upon which Muhammad Din relies does not relate to the plot in question.
8. There is of course a mention of an application under Scheme No. VI submitted by Muhammad Din and his brother in the order, dated 30-7-1960 of the Additional Settlement Commissioner. But then a copy of the order of the Deputy Settlement Commissioner which was under appeal has not been placed on the record. It is, therefore, not known on what ground the application was dismissed by the Deputy Settlement Commissioner. It is to be noticed that in order to take advantage of the provision of Scheme No. VI the appellant and his brother had to show inter alia that they had raised a permanent building on the plot. There is no finding by any authority from the Settlement department in their favour in this regard. The appellant denied that Muhammad Din had put up any Pacca structure on the plot. In support of his assertion that he had raised a permanent building on the plot, Muhammad Din relied entirely upon a copy of a report of the Rehabilitation Inspector, dated 20-6-1960. Now this copy is an unattested one and it is not clear how and from where Muhammad Din obtained it. Even the learned counsel who filed it in the High Court did not care to describe it as a "true copy"; apparently he too had not seen the original document. This was thus a worthless document and the learned Single Judge ought not to have taken any notice of it.
9. As stated earlier, the appeal of Muhammad Din from the order of the Deputy Settlement Commissioner was dismissed in default by the Additional Settlement Commissioner. Although Muhammad Din averred that he had moved an application for the restoration of the appeal, the finding of the Settlement Department in this regard is against him. In this context reference may be made to the order, dated 18-2-1971 of the Additional Settlement Commissioner wherein he stated that there was no proof that any application for the restoration of the appeal was made. There is no basiswhatsoever to interfere with this finding.
10. It is also of interest to note that after the dismissal of his appeal on 30-7-1960, Muhammad Din took no steps to pursue his claim of the plot for more than six years for it was only in October, 1966 that he sent a petition to the Governor. Although the learned counsel appearing for Muhammad Din did contend that Muhammad Din had been approaching various Settlement Authorities to assert his claim but this was merely a bald assertion entirely unsupported by any evidence of whatsoever nature. His inaction over such a large period was by itself sufficient to disentitle him to any relief in writ jurisdiction.
11. In support of his case learned counsel appearing for Muhammad Din relied upon Syed Azmat A.I v. Chief and Rehabilitation Commissioner PLD 1964 SC- 260, Abdul Jabbar Khan v. Additional Settlement and Rehabilitation Commissioner PLD 1964 Kar. 365, Ch. Sardar A.I v. Ch. A.I Muhammad PLD 1970 Lah. 647 and Abdul Malik v. Chief Settlement Commissioner PLD 1967 Lah.
520; but these cases are easily distinguishable. To begin with, as noticed earlier, there is no evidence that he had submitted any form for the transfer of the plot. His application under Scheme No. VI was dismissed by a Deputy Settlement Commissioner. He has not cared to place a copy of the order on the record. The dismissal could well have been possibly on merit. He preferred an appeal which was dismissed in default. He did not take any steps for more than six years to get his appeal restored. In the circumstances, the above-mentioned cases can hardly be of any assistance to him. The learned counsel also referred to Fazal-ul-Haq v. Said Muhammad 1968 SCMR 113 and Mst. Mahmooda Tahsin v. S. Ijaz Hussain Shah, Settlement and Rehabilitation Commissioner PLD 1965 SC 618 but these cases again are distinguishable as there is no reliable evidence that Muhammad Din and his brother had constructed permanent buildings on the plot in question.
12. In the circumstances mentioned above we do not think that there was any basis with the learned Single Judge for reopening the matter by directing the Settlement Department to inquire whether Muhammad Din had submitted any form or application for the transfer of the plot and whether his entitlement to obtain the same had been made out. Accordingly, we would accept this appeal and withdraw the writ issued by the learned Judge. The appellant will also have costs of this appeal.