' MUNAWAR AHMAD MIRZA, J.---This petition is directed against judgment, dated 1st October, 1997 passed by Lahore High Court in Letter Patent Appeal No,298 of 1971 whereby decision dated 5-10- 1971 of the learned Judge of the said Court passed in Writ Petition No,783/B-65 was upheld.
2. The dispute between the parties relates to Shop No,6/1309 situated in Ghalla Mandi, Sialkot (hereinafter referred as suit property). The undispute features of the case are that suit property was initially auctioned in favour of Rashid-ur-Rehman on 30th January, 1960, but same was not approved by Additional Settlement Commissioner vide order, dated 8th February, 1960. One Muhammad Shafi on 4th May, 1960 applied for transfer of suit property on the ground of having purchased evacuee machinery lying in the shop, but his request was rejected by Additional Settlement Commissioner (Factories) on 24-11-1960. He then filed revision petition which also met the same fate on 18th April, 1962. During the pendency of proceedings launched by said Muhammad Shafi, one Meraj-ud-Din submitted a miscellaneous application before Deputy Settlement Commissioner, Sialkot towards 14th November, 1960 seeking transfer of suit property in his favour. It was alleged that previous auction proceedings though apparently pertained to shop in dispute, but factually same comprised of No,6/1308. A report favourable to Meraj-ud-Din was given by the Deputy Settlement Commissioner on 12th December, 1960 which was confirmed by Additional Settlement and Rehabilitation Commissioner, Sialkot on 13th December, 1960.
Consequently, on the basis of said orders, P.T.O. Was issued in favour of Meraj-ud-Din on 15th December, 1960.
3. It is pertinent to mention that in actuality the same very shop, namely, 6/1309 was auctioned on 13th April, 1960 in favour of Haji Muhammad Jamil (respondent No,4). Auction was confirmed by Additional Settlement Commissioner on 25th April, 1960 and sum of Rs,13,500 being the highest bid was deposited/adjusted by the auction-purchaser. Subsequent to approval by the Additional Settlement Commissioner, P.T.O. Bearing No,1790 was issued in favour of respondent Haji Muhammad Jamil on 4th May, 1960. It is interesting to notice that respondent No,5, Sain Bakhsh had got corrected the entries in the auction list by the orders of Additional Settlement Commissioner, dated 16th March, 1962 without notice to above transferees. Petitioner on coming to know that a duplicate P.T.O. Had been issued concerning suit property filed an application before Deputy Settlement Commissioner of getting these entries corrected, which was rejected on 2nd August, 1963. Petitioner then filed an appeal before Additional Settlement Commissioner, Sialkot, but without any success and same was dismissed on 7th December, 1963. Revision petition filed by the petitioner before the Settlement Commissioner met the same fate vide order, dated 30th March, 1964. The above-referred orders of the Settlement Authorities were, therefore, challenged by respondent Haji Muhammad Jamil by way of Writ Petition No,783-R of 1965. The above-referred orders of the Settlement Authorities issuing subsequent P.T.O. In favour of Meraj-ud-Din were declared to be without lawful authority of no legal consequence and to that extent petition was accepted. However, questions for consideration by the Settlement Authorities raised Meraj-ud-Din had surrendered his rights with regard to suit property in favour of petitioner Muhammad Aslam who paid entire price and ultimately P.T.D. Was also issued in his favour. Therefore, feeling aggrieved Muhammad Aslam Khan, the transferee of rights from Meraj-ud-Din, filed Letter Patent Appeal No,298 of 1971 challenging the decision of learned Judge of the High Court, dated 5th October, 1971. This appeal has now been dismissed. Relevant observations are reproduced as under:-- "10.... We have noticed that alongwith the application made by one Sayeen Bakhsh under Order 1, Rule 10, C.P.C. Seeking impleadment as party he has appended certified copy of a list of evacuee shops in Ward No,6 published by the D.S.C., Sialkot on 2-4-1960. Shop No,6/1309 has been shown to be in occupation of one Salah-ud-Din. A similar list of evacuee shops published on 9-5-1964 Salah-ud-Din a local has been shown to be in occupation of Shop No,6/1308, therefore, in the presence of this documentary evidence it could not be argued that no man of the name of Salah- ud-Din was in occupation of Shop No,6/1309 and a man of the name of Salah-ud-Din was in occupation of only Shop No,6/1308 to contend that it was Shop No,6/1308 which was auctioned in favour of Muhammad Jamil.
11. Learned counsel for appellant submitted that auction in favour of Muhammad Jamil was confirmed by an Additional Settlement Commissioner. He argued that the Additional Settlement Commissioner according to the law laid down by the Supreme Court could confirm the auction only if he had been authorised by the Chief Settlement Commissioner.
12. We have examined the memo. Of this appeal and find that no such ground has been urged. It is a question of fact whether the Additional Settlement Commissioner at the relevant time had been authorised by the Chief Settlement Commissioner to confirm auction of evacuee properties and this factual plea having not been raised in the appeal or in writ petition, therefore, we are not inclined to allow the appellant to advance arguments in respect thereof, for, a factual plea could be met if raised by the respondent that the Additional Settlement Commissioner had been authorised by the Chief Settlement Commissioner to confirm the auction. We will, therefore, presume that the Additional Settlement Commissioner had been authorized by the Chief Settlement Commissioner to confirm the auction of Shop No,6/1309 in favour of Muhammad Jamil respondent as all official acts are to be presumed to have been regularly and validly done which presumption in this case can legitimately be raised.
13. The judgment passed by the learned Single Judge does not suffer from any legal infirmity, therefore, the appeal has no merits which is accordingly dismissed. We will not burden the appellant with costs as none has appeared today on behalf of the respondent."
' Present petition for leave to appeal is now directed against (i) judgment, dated 5th October, 1971 passed in Writ Petition No,783-R of 1965, and (ii) judgment dated 1st October, 1997 passed in Letter Patent Appeal No,298 of 1971.
4. Mr. Samad Mahmood, Advocate Supreme Court, learned counsel for petitioner, contended that Meraj-ud-Din was lawfully transferred the property by Additional Settlement Commissioner on the basis of detailed report submitted by Deputy Settlement Commissioner, Sialkot. Besides, petitioner had purchased suit property from Meraj-ud-Din for lawful consideration pursuant upon surrender of rights. According to him, material facts were totally misread by the High Court. Learned counsel convassed that Settlement Authorities on scrutiny of entire record had rejected claim put forth by respondent Haji Muhammad Jamil, therefore, factual controversy could not be challenged by invoking Constitutional jurisdiction. It was argued that High Court unjustifiably ignored to consider above discussed important legal aspects. According to learned counsel the property which was auctioned in favour of respondent Haji Muhammad Jamil was actually numbered as 6/1308, and therefore, was not relatable to the lands transferred in favour of Meraj-ud-Din or obtained by petitioner Muhammad Aslam Khan.
5. We have perused the record and considered the arguments advanced by learned counsel for petitioner. Undisputedly, auction of the Suit property was held on 13th April, 1960 and confirmed in favour of respondent Haji Muhammad Jamil by Additional Settlement Commissioner on 25th April, 1960. P.T.O. Was also issued in his favour on 4th May, 1960 after payment/adjustment of the auction price, therefore, ex facie suit property was not available for disposal by the Settlement Authorities.
The commencement of the proceedings or assumption of jurisdiction by the Settlement Authorities on a miscellaneous application filed by Meraj-ud-Din was totally devoid of lawful authority.
Accordingly, order dated 13th December, 1960 confirming transfer of suit property in favour of Meraj-ud-Din was void ab initio and no rights concerning suit property could be transferred to or acquired by the petitioner. Legal and factual aspects have been elaborately discussed in both the impugned judgments. There does not exist any illegality, infirmity or material defect which may warrant interference. Consequently, petition is dismissed and leave to appeal refused.