JAVED IQBAL, J.---This petition for leave to appeal is directed against judgment dated 3-5-1999 passed by learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby judgment dated 1-4-1970 passed by a learned Single Bench of High Court of West Pakistan, Lahore, has been kept intact dismissing the Constitutional petition (Writ Petition No,346-R of 1970) preferred on behalf of the petitioner.
2. Briefly stated the facts of the case are that "according to the case of the appellants they are displaced persons from Jammu and Kashmir State and in that capacity were allotted land provisionally in Mouza Rawat, Tehsil and District Rawalpindi. The possession was taken over by the appellants in the year 1951 and since then they are in possession thereof. Subsequently, respondent No,2 son of Mst. Saeeda Khatoon, claimed that the land allotted to his mother, thus the appellant were constrained to move an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act of 1958 seeking cancellation of the allotment but this application was dismissed.
Thereafter an appeal was filed, which too was dismissed but as being incompetent, against the above two orders, this Court was approached in its writ jurisdiction and the petition filed by the appellant was dismissed in limine vide order dated 1-4-1970 by the learned Single Judge in Chamber". Being aggrieved L.P.A. No,91 of 1970 was preferred which was also dismissed vide impugned judgment, hence this petition.
3. It is mainly contended by Ch. Afrasiab Khan, learned ASC on behalf of the petitioner that legal and factual aspects of the controversy have not been dilated upon and considered in its true perspective which resulted in serious miscarriage of justice and on this score alone the impugned judgment is liable to be set aside. It is urged with vehemence that 8 Kanals, 11 Marlas of land bearing Khasra No,2112 was never allotted to Mst. Saeeda Khatoon but on the contrary it was allotted to the petitioner as a result of an application preferred under section 10/11 of the Displaced Persons (Land Settlement) Act of 1958 which aspect of the matter escaped notice and resulted grave prejudice. It is next contended that the dictum as laid down in Shaukat Hussain Rizvi v. Yar Muhammad Khan PLD 1964 (W.P.) Lahore 469 has been ignored without any rhyme and reason wherein it was held that displaced persons using and occupying urban lands allotted in their favour temporarily had a right to retain the same and get it adjusted against their claims. It is argued that had the said verdict been considered the position would have been different and the injustice which has been done to the petitioner could have been avoided. It is next contended that it mainly prevailed upon the learned Division Bench that "all the appellants have claimed joint temporary allotment and their rights are inseparable" which is based on misreading and non- reading of the record of the case as a separate action was initiated by the petitioner and accordingly he could not have been joined with the other claimants. It is pointed out that proper opportunity of hearing has not been afforded as an application preferred on behalf of the petitioner to bring on record certain additional and essential documents was ignored and without taking into consideration the said documents controversy could not have been resolved and the conclusion drawn in the absence of said documents is based on conjectural presumptions. It is also argued that Mst. Saeeda Khatoon never produced her R.L.II in order to substantiate the claim which was in fact bogus and the land in question was got allotted with collusion of the concerned functionaries of the Government.
4. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court appeared on behalf of respondent No,2 and supported the impugned judgment being free from any illegality or serious infirmity. It is contended that it was never the case of petitioner before any forum that the land in question was got allotted by means of fraud or misrepresentation or collusion with the Settlement Authorities and such pleas which were never raised previously cannot be agitated now. Sardar Muhammad Siddique Khan, learned Advocate Supreme Court appeared on behalf of respondents Nos.3 to 6 and supported the impugned judgment and adopted the arguments of Mr. Muhammad Munir Peracha, learned Advocate Supreme Court and in addition thereto relied heavily upon L.R.II.
5. We have carefully examined the respective contentions as agitated on behalf of the parties and perused the record with eminent assistance of learned counsel for the parties. We have also gone through the impugned judgment. We are not impressed by the prime contention of Ch. Afrasiab Khan, learned Advocate Supreme Court on behalf of the petitioner that land measuring 8 Kanals, 11 Marlas bearing Khasra No,2112 was never allotted to Mst. Saeeda Khatoon but on the contrary it was so allotted on an application moved by Baqa Muhammad with others under section 10/11 of the Displaced Persons (Land Settlement) Act of 1958 for the reasons that the petitioner failed miserably to substantiate that the land in dispute was ever allotted in his favour by producing any cogent, concrete, oral or documentary evidence before the Settlement Authorities of High Court. By no stretch of imagination "Jamabandi" can be considered as exclusive proof of ownership or allotment. No doubt that it has got presumption of truth which is always subject to rebuttal and moreso, the same were never produced before High Court and there would be no lawful justification to consider the same at this belated stage which should have been produced at opportune moment. It would be relevant to mention here at this juncture that neither the allotment of Mst. Saeeda Khatoon was ever challenged nor any fraud or misrepresentation was alleged. It transpires from scrutiny of record that first application to get the controversy resolved was moved on 25-5-1969 and the main grievance of the petitioner was that allotment regarding land in question was got confirmed without the knowledge of the petitioner which should have been confirmed in his favour. The learned Additional Commissioner Settlement had set the controversy at naught by observing in his order dated 27-10-1969 that the land in question was allotted in favour of Mst. Saeeda Khatoon on 29-9-1952 and in the year 1953 no such land was available for allotment to the petitioner. The conclusion drawn by learned Additional Commissioner Settlement is not only in accordance with law but based on the report of Patwari of the Halqa and it is quite astonishing that the petitioner remained mum for about seventeen long years and the allotment which was made in 1952 was half-heartedly questioned in 1969 that too on the ground of lack of knowledge regarding allotment/confirmation of land 'which is hardly believable. The order of learned Additional Commissioner Settlement was assailed before Settlement Commissioner (Appeal No,103 of 1968-69) which was dismissed and rightly so as he had no authority to dilate upon the controversy and decide in view of the Notification No,4501/5361-R(L), dated 3-9-1963 as the powers of Chief Settlement Commissioner were delegated to all the Additional Deputy Commissioners in the capacity of Additional Settlement Commissioners.
6. Much stress has been laid on the fact that in absence of any notice to the petitioner the land in question could not have been allotted/confirmed in favour of Mst. Saeeda Khatoon but nothing could be brought on record to show that at the first instance land in dispute was allotted in favour of petitioner who emerged at the scene in 1953 while the land had already been allotted in favour of Mst. Saeeda Khatoon in the year 1952 and accordingly the question of issuance of notice does not arise. We are not persuaded to agree with Ch. Afrasiab Khan, learned Advocate Supreme Court on behalf of the petitioner that a serious prejudice has been caused as the dictum laid down in case titled "Shaukat Hussain Rizvi v. Yar Muhammad Khan" (supra) has been ignored because according to well-considered view of learned Additional Commissioner Settlement land was never allotted in favour of the petitioner and hence the question of its retention on permanent basis does not arise. We cannot subscribe the view as expressed by Ch. Afrasiab Khan, learned Advocate Supreme Court on behalf of the petitioner that various documents which could not be obtained earlier may be considered now for the reason that the same were never produced before the forums below and accordingly we are not inclined to consider the same. We are of the considered opinion that the forums below have not been. Shown to have committed any material irregularity or illegality in exercise of jurisdiction vested in them under the law and no evidence has been kept out of the consideration, misread or misconstrued duly adduced by the parties.
7. We are, therefore, not inclined to grant leave and accordingly the petition being devoid of merits is dismissed.