1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed; against the dismissal by the High Court of appellants' Writ Petition.
2. ' The facts and circumstances noted for grant of leave to appeal are that "the land in dispute was allotted to respondent No,4, Masita on 18-11-1958 which was in turn sold by him to the petitioners Nos. 1 to 3 vide registered sale deed dated 2-6-1954. Mutation was sanctioned on 15-1-1965.
3. Respondent Khuda Bakhsh who was originally a Hindu named Bihari Ram made an application to the Deputy Settlement Commissioner for cancellation of the aforesaid allotment which was rejected on 14-1-1960 on the ground that Khuda Bakhsh should approach the appropriate authority by way of an appeal or revision. Khuda Bakhsh died on 24-9-1960 and one Allah Ditta, whose original name was Bhola Ram, got mutation of inheritance entered in his favour as nephew of the deceased Khuda Bakhsh. On 31-10-1960 this mutation was suo motu cancelled on the ground that the property was evacuee, against which Allah Ditta took up further proceedings and finally the Member, Board of Revenue, vide his order, dated 31-2-1971 accepted the revision application of Allah Ditta and held that he may be treated as successor of Khuda Bakhsh. Allah Ditta then approached the Additional Settlement Commissioner and obtained an ex parte order on 15-5-1974 cancelling the allotment made in favour of respondent No,4. The petitioners then moved the High Court in Writ Petition No,1305/R of 1974 which was dismissed on the finding that Behari Ram had never migrated and that it was not shown that his property was treated as an evacuee property before the target date, i,e. 1-1-1957 provided in section 3 of the Act XII of 1957".
4. Leave to appeal was granted to examine the arguments advanced on behalf of the appellants that it was not open to the Additional Settlement Commissioner to give a finding that the subject property was not evacuee as not only it had become part of compensation pool but in fact had been transferred to the predecessor-in-interest of the appellants. And the further argument that the remedy for Allah Ditta was to move the Custodian and seek declaration to the effect that the property was not evacuee.
5. ' The finding of fact by the lower functionaries which was affirmed in the High Court on very crucial question involved in this case is that Behari Lal who had embraced Islam and adopted the name of Khuda Bakhsh had never migrated to India and that he remained in Pakistan. It is not only a finding but also there is an admission in this behalf before the High Court in the following observation: "It is not disputed in the present petition that he never migrated to India".
6. ' Confronted with this finding learned counsel for the appellants who himself had not appeared before the High Court tried to reopen this finding of fact which after hearing him we have not been able to find any justification to set aside. If that is so then the entire subsequent superstructure of facts and circumstances and assumptions of law made, will undergo major change. For example, the assumption that the owner a non-Muslim having migrated to India as a result of partition, the property so left by him in Pakistan could be treated as evacuee, was wrong; notwithstanding the fact that the question; whether, in fact the property was ever treated as evacuee remained throughout disputed. Stand taken from the respondents' side gets strengthened from the aforeaffirmed finding of fact that the owner had not migrated to India nor had he become evacuee. He had embraced Islam and he stayed in Pakistan, therefore, while there was no justification for treating the property as evacuee, there is very strong probability that in reality it was not treated so though in paper some entries which obviously were wrong, were made.
7. Accordingly, in the circumstances of this case the finding on issue regarding treatment "of the property in question as of one or the other character" also stands concluded by finding of fact; namely, that it was never in reality treated as evacuee. Be that as it may, even if there was some lacuna of technical nature and even if it has affected the jurisdictional aspect of the Settlement authorities, the appellants having approached the High Court in its Constitutional jurisdiction, the same would be dismissed on equitable considerations on which basis, undoubtedly the appellants have no case. Looked at from whatever angle this appeal has no force and the same is dismissed.
8. There shall be no order as to costs.