1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the plaintiffs' side; against the dismissal by the High Court, of their Regular Second Appeal.
2. The plea before the trial Court from the petitioners' side was that their predecessor-in-interest Mst.
3. Hassan Bano being allottee owner of the land in dispute under the Displaced Persons (Land Settlement) Act it could not have been sold to the respondents' side. The defendants' plea was of valid transfer to them by the Central Government and the Custodian prior to the allotment made to Mst. Hassan Bano.
4. The suit was decreed but on appeal from the respondents' side the judgment and decree was reversed. On second appeal, which was dismissed, the learned Judge in the High Court made the following observations:-- "The findings recorded in the appeal below with regard to absence of title in Mst. Hassan Bano and the plaintiffs relate to questions of pure fact and are justified on the record. Learned counsel has not been able to dislodge the said findings as having resulted from any misreading or being otherwise not justified and has, instead, tried to only collaterally attack the orders of the Settlement Authorities on the plea tht the appellants had Hot been heard before the passing of the relevant orders. His plea also is that erstwhile evacuee land once allotted to a displaced person is not liable to be cancelled in exercise of powers of review and even if the allotment is lawfully cancelled, the land has to revert to the compensation pool to remain available for satisfaction of claims of displaced persons and is not liable to be disposed of by negotiations. For a number of reasons I am unable to accept these contentions because they had not been raised as such either in the suit or even in the appeal below and not only section 22 of the Displaced Persons (Land Settlement) Act, 1958 shuts out the present dispute but also Article 14 of the Limitation Act gets attracted in so far as it provides a period of only one year, for a suit to challenge the order passed by an officer of the Government in his official capacity, starting from the date of the order. Findings of fact, with regard to absence of title in the plaintiffs, recorded in the appeal below are justified on the record and this case really stands concluded thereby."
5. Learned counsel for the petitioners has contended that following the rule laid down in 'Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 the judgment impugned before the High Court being of variance, independent mind should have been applied in the a second appeal so as to discover/compare reasonableness and soundness of both the judgments; that the Custodian by his order dated 24-5-1961 illegally approved the sale of the land in question in favour of the respondents because, firstly, it was without the approval of the Central Government; and secondly, that the relevant Notifications of acquisition issued under the Displaced Persons (Land Settlement) Act had the effect of taking away the land in dispute out of the control and management of the Custodian. It accordingly had to be disposed of under the said law and could not be sold by the Custodian to the respondents. He has relied in this behalf on `Messrs Pakasia Paint Mills Ltd. v. Dr. Abdul Rauf and 9 others 1970 SCMR 739.
6. Regarding the first contention it would suffice to say that the petitioners being duly represented before the High Court, their learned counsel pointed out the infirmities which he thought would be enough for the setting aside of the first appellate judgment and the learned Judge dealt with the points so raised. The formal comparison of the two judgments of variance brought under scrutiny before the High Court was thus avoided by the petitioners' counsel and accordingly rightly not done by the High Court. May be that the learned counsel then appearing for the petitioners thought it better for them to adopt the line of argument as he advanced before the High Court. Leave accordingly cannot be granted on this point.
7. The second argument has two parts -- one is factual; whether or not the Central Government granted approval for sale to the respondent. It is a question of fact and not having been pressed before the High Court we would not permit it to be re-opened now. The second part of the argument is undoubtedly legal but in the circumstances of this case is linked with the findings of fact. As it appears from the impugned judgment, the sale in favour of the respondent being in fact perior to the allotment in favour of Mst. Hassan Bano, the petitioners cannot be given any benefit in this behalf. See also Ghulam Farid and 6 others v. Abbasi Textile Mills Ltd. And 3 others 1982 SCMR
958. Be that as it may it was a collateral challenge to the actions of the Government/Custodian and the difficulties pointed out by the learned Judge of the High Court in the impugned judgment to accept this plea cannot be ignored either as irrelevant or without any force. Looked at from whatever angle, after hearing the learned counsel at some length, we do not find any force in this petition; the same, accordingly, is dismissed.