' The dispute in this case relates to the inheritance of one Rehman who died at the age of 13 in the Walton Camp, Lahore, in 1947. Rehman was son of Man Singh and grand-son of Mona. It now stands proved on record that Mst. Mahajani petitioner is the widow of Mona and grand-mother of Rehman the deceased right-holder. Jaimal who is respondent No, 2 in this petition, filed a claim of late Rehman. This claim was verified and land measuring 395 kanals, 9 marks was allotted in village Matta, Tehsil Kasur, District Lahore, on 27th February 1952, in the presence of Jaimal as uncle of Rehman who also marked his thumb-impression on the RL-II. Subsequently, on 28th August 1957, mutation of inheritance of Rahman was entered and attested in favour of Mst. Mahajani, petitioner at her own request. In a statement made by her, at the time of attestation of the mutation, she accepted as correct the pedigree-table wherein she was shown as the mother of Rehman: The name of the owner was given as Rehman son of Maida Mona caste Meo. It was subsequently found that the correct description of the owner according to the record was Rehman Nabeera Mona which means grand-son of Mona.
2. On 11th March 1965, Jaimal respondent filed an appeal against the order dated 28th August 1957, attesting the mutation of inheritance in petitioner's favour. He also filed an application under section 5 of the Limitation Act explaining the delay and prayed for extension of time. Any other appeal was filed by Mst. Mehtabi, respondent No, 1, on 17th March, 1966, claiming a share in inheritance as mother of Rehman. She also prayed for extension of time for the reasons stated in the application made under section 5 of the Limitation Act. Ladha Khan another person, not a party to the present petition, also filed an application that he alongwith 6 others be made a party as their interest was the same at that of Jaimal. Chhotay Khan alongwith two others also made a similar application on 16th August 1966, for being impleaded as party. The applications came up for hearing before the Deputy Settlement and Rehabilitation Commissioner who condoned the delay in the case of Mst. Mehtabi and also accepted her appeal. He however, vide order dated 1st September 1966, did not condone the delay in the case of Jaimal. Mst. Mahajani petitioner and Jaimal respondent filed two separate revision petitions against the said order of the Deputy Settlement and Rehabilitation Commissioner. These revision petitions came up for hearing before the Settlement Commissioner who ride his order dated 30th November 1966, condoned the delay in case of Jaimal also, accepted his revision petition and remanded the case. The matter was considered in remand by the Deputy Settlement Commissioner (Land) who vide his order dated 4th January 1967, held that Mst. Mehtabi as a mother was entitled to 1/3rd of the property whereas Jaimal respondent to 2/3rd as a collateral. He, however, did not hear Mst. Mahajani petitioner as according to him she had no case in the presence of the mother and collaterals of Rehman deceased right-holder. Mst. Mahajani filed a revision petition which was accepted by the Settlement and Rehabilitation Commissioner by his order dated 4th May 1967, with the observation that the order of remand meant to send the cue to the trial Court and not to the appellate authority. He therefore, remitted the case to the Assisttant Settlement Commissioner. The proceedings started before the Assistant Settlement and Rehabilitation Commissioner who examined four witnesses. Their depositions have been placed on this record as Annexure R3 to R6.
He also concluded by his order dated 8th August 1967, that Mst. Mehtabi was entitled to 1/3rd and Jaimal to 2/3rd of the estate of Rehman. The evidence mentioned above was, however, not considered as according to him the Settlement Commissioner had already held Mst. Mehtabi to be the mother and Jaimal to be the collateral. Mst. Mahajani petitioner filed an appeal which was considered by the Deputy Settlement Commissioner who rejected the same vide order dated 8th October 1967. A revision petition was also rejected by the Settlement Commissioner by his order dated 4th June 1968. The petitioner now challenges the order against her in the present Writ Petition.
3. It is contended by the learned counsel for the petitioner that the authorities below illegally accepted the appeals filed after about 8 years by Mst. Mehtabi and Jaimal, particularly when section 5 of the Limitation Act was not applicable and there was no other sufficient cause to allow extension of time. According to the learned counsel Jaimal was not only present at the time of allotment in favour of Mst. Mahajani but he had been living in village Matta. There was, therefore, neither a justification to hold that he did not know about the mutation nor was there any other sufficient cause available to him to extend time. The learned counsel for the petitioner also contended that the petitioner had never stopped challenging the orders passed by the Settlement Authorities and that she continuously and persistently stood by the position she had taken from the very beginning to get the unlawful order set aside. He has also referred to a number of precedent judgments including Ata Ullah Malik v. Custodian, Evacuee Property etc. (1), and Province of East Pakistan v. Abdul Hamid Darji and others (2), to say that in order to seek extension of time the delay of each and every day has to be explained and that the same being not done in this case, the order dated 1st September 1966, of the Deputy Settlement Commissioner and dated 30th November 1966, of the Settlement Commissioner condoning the delay in the case of Mst. Mehtabi and Jaimal respectively, are without jurisdiction and void tainting all the orders passed subsequent thereto with the same defect.
4. It is to be noted that the delay in the case of Mst. Mehtabi was condoned vide order dated 1st September 1966 of the Deputy Settlement Com. Missioner while it was condoned on 30th November 1966, in case of Jaimal by the Settlement Commissioner. The petitioner did not challenge these orders further and submitted to the jurisdiction of the lower authorities who were directed to proceed on merits in pursuance of the remand order noted above. The petitioner, therefore, cannot challenge the condonation of delay in the third round of litigation. It was held in Ghulam Mohi-ud- Din v. Chief Settlement Commissioner and others (3), that the petitioner who submitted to the jurisdiction of an authority cannot challenge the same if the decision went against him. Even otherwise this objection is not available to the petitioner on the principle of waiver and acquiescence. In Begum Zainab Tiwana v. Ch. Aziz B Ahmad Waraich and others (4), Malik Muhammad Din v. Babu Fazal Karim and others (5), Suleman and others v. The Board of Revenue West Pakistan (6) and Fazal Din v. Wall Muhammad and others (7), it was held that the petitioner
(1) PLD 1964 SC 236 (2) 1970 SCMR 558 (3) PLD 1964 SC 829 (4) PLD 1967 Lah. 977 (5) PLD 1968 Lab. 544 (6) 1970 SCMR. 574 (7) 1970 SCMR 180 who did not challenge the remand order cannot challenge the point already decided before remand having acquiesced in the same as he shall be deemed to have waived his right with regard to the same. As extension of time is discretionary with an authority and as the Settlement Authorities found Mat. Methabi and Jaimal having not known the mutation in favour of the petitioner, the extension of time was not without lawful authority and cannot be said to be void and a nullity. I was held in Muhammad Hussain Munir and others v.
Sikandar and others (1) that :- "The argument in our opinion is unexceptionable. It is not controverted that the matter before the learned Single Judge fell to be dealt with under paragraph (ii) of sub-clause (a) of clause (i), Article 98 of the 1962 Constitution. That being so, the learned Judge could have set aside the order if he had reached the conclusion that the revisional order of the learned Member, Board of Revenue was "without lawful authority and of no legal effect." These are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decision whether of question of fact or even of law. It is well-settled that where a Court or tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law."
' In any case the first mutation of inheritance of a deceased right-holder is provisional and can be interfered with at the instance of any of the heirs D not present on the first attestation as provided in para. 67 read with Appendix VI mentioned therein. There was, therefore, no question of limitation involved as such.
5. The next point raised is that the refusal on the part of the Assistant Settlement Commissioner to consider oral evidence recorded on 28th July 1967, amounted to refusal to exercise jurisdiction vesting in him under law. According to the learned counsel the remand order passed by the Settlement Commissioner at the instance of Mat. Mahajani complaining that she had been illegally ousted from the proceedings by the Deputy Settlement Commissioner (Land) was a sufficient manifestation of his will that she as well could assert her right and that the evidence produced by her was to be considered. It is also urged that the question before the Assistant Settlement Commissioner was the determination of the rights of the parties about valuable immovable property and it ought to have been considered and decided in the same way as a civil suit on the basis of evidence which is legal and admissible. There cannot be a quarrel with the broad proposition of law as laid out but as the strict provisions of general law have not been applied in the Settlement cases and emphasis has been laid on the satisfaction of the Chief Settlement Commissioner as held in Mst. Bhano and others v. Man A. M. Saeed and others (2). Even otherwise the Assistant Settlement Commissioner was acting only under the remand order. He was, therefore, not free to travel beyond the ambit of the remand order to go into such questions as stood already decided by the authorities higher than him. It may be repeated here with advantage that the Deputy Settlement Commissioner and the Settlement Commissioner had already held that Mat.
Mehtabi was the mother and Jaimal a collateral. The Assistant Settlement Commissioner was thus not entitled to consider the evidence being led at the later stage to dislodge that finding.
(1) PLD 1974 SC 139
(2) 1969 SCMR 299
6. The next objection raised was that some affidavits were taken into consideration to come to a conclusion about the relationship of Mst. Mehtabi and Jaimal with Rehman, without allowing an opportunity to the petitioner to cross-examine the makers thereof. This objection is also belated.
The relationship of Mst. Mehtabi and Jaimal had been determined finally vide orders dated 1st September 1966, and 30th November 1966, of the Deputy Settlement Commissioner and Settlement Commissioner which were never challenged. The findings, therefore, became final and could not be reopened in the following rounds of litigation.
7. The learned counsel for the petitioner has also taken very strong exception to the procedure adopted by the Deputy Settlement Commissioner while passing the order dated 1st September 1966. The Deputy Settlement Commissioner had gone to the village in question and recorded the statements of a number of witnesses placed on record as Annexure rule 14 to rule 20. It may be added here that one of the statements recorded was that of Mst. Mahajani petitioner. The other parties had also cross-examined the witnesses as is clear from those Annexures. The learned counsel relied on Ch. Sir Muhammad Zafarullah Khan and others v. Custodian of Evacuee Property and others (1), to say that procedure adopted was illegal. However, the facts of that case and the law laid down there would be of no help to the petitioner in the present case. According to this judgment the administrative authorities are also obliged to follow the same procedure and employ the same care and caution in admitting and accepting the evidence as the civil Court would do.
However, no illegality has been pointed out in the procedure adopted by the Deputy Settlement Commissioner (Land) in the present case. The procedure adopted In the case is rather supported by the following p observations of the Supreme Court in Mst. Bhano and another v. Mian A. M. Saeed and others where it was held as follows :- "The next contention advanced is that to establish fraud or misrepresentation a more reliable and stronger kind of evidence was required. No law provides a special quantum of evidence for the establishment of fraud. While it is true that the Court should be careful in coming to a finding of fraud and should normally satisfy themselves that the finding is based on reliable evidence, it cannot be said that any special number of witnesses or any special nature of evidence is needed to establish fraud. It is for the Court which is to decide this question to be satisfied that the evidence adduced before it is such that it can believe it. The Court which was entrusted with this task has done so and it is not for us to re-assess that evidence or come to a different finding of our own, if there was evidence on which such a finding could be based.
' The last question urged is that the finding of fraud is vitiated by the admission of inadmissible evidence namely, an Electoral Roll produced from India. The Settlement authorities who are making enquiries of hearing appeals under the Act, are civil Courts under the Code of Civil Procedure for several purposes but it does not follow that all the provisions of the Evidence Act also necessarily apply to proceedings before them. Under section 10 of the Displaced Persons (Land Settlement)
Act, 1958, in particular, it is the Chief Settlement Commissioner who has to be satisfied that the allotment was obtained by fraud or by misrepresentation. It is nowhere provided that such satisfaction (1) PLD 1964 SC 865 must be based upon evidence which is strictly admissible under the Evidence Act.
' The certified copy of the electoral roll prepared in India was also certified by the High Commission for Pakistan in India and was thus admissible under section 78(6) of the Evidence Act. The further endorsement made on it out of abundant caution merely affected its weight."
8. The last point urged was that admittedly Rehman died in 1947 and hit. Mehtabi who if it is held is mother of Rehman would inherit the property of Rehman as a limited owner under custom. It was, therefore, contended that the mutation in question could not be considered in accordance with the Shariat Laws but could only he decided under section 5 of the Punjab Laws Act. The precise question being taken in the case is that the Settlement and Rehabilitation Authorities could not act upon the instructions as contained in paras. 46-A and 67 of the Rehabilitation Settlement Scheme for that would amount to impliedly repealing the provisions of Punjab Laws Act be subordinate legislation as contained in these instructions. The learned counsel also referred to cases cited as Unto. Draz Khan v. Khurshid Ali (1), Abdur Rashid v. Pakistan (2) and Mst. Basso v. The Rehabilitation Commissioner (Land) and another (3), to say that the question being raised by him at this stage had never been considered in those judgments and, therefore, the rule laid down therein may not be applied to the present case. I am afraid, the contention of the learned counsel cannot be gone into by me in the presence of all the judgments mentioned above and I have no option but to follow the rule laid down in those.
' For the foregoing reasons the writ petition is dismissed leaving the parties to bear their own costs.
(1)PLD 1960 Lab. 834
(2) PLD 1962 SC 42
(3) PLD 1963 SC 347