' MUHAMMAD NAWAZ ABBASI, J.---The petitioners have sought leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan. 1973, against the judgment of Lahore High Court, Lahore, dated 26-10-1999 passed in Writ Petition No,5275 of 1990.
2. Having heard the learned counsel for the petitioners on 28-11-2001, following order was passed by this Court:- ' "The office has reported that this petition is barred by one day.
2. In consolidation operations, the land in dispute was allotted to the petitioners in lieu of their entitlement. Mrs. Qaiser Sheraz/ respondent daughter of Muhammad Khan filed appeal in the Court of Additional Deputy Commissioner (Consolidation) with power of Collector (Consolidation) against the scheme of Consolidation in which'she did not implead the present petitioners as is apparent from the title of the appeal given in the order dated 12-6-1979 through which the said appeal was decided. The petitioners after coming to know filed appeal before the Additional Commissioner (Consolidation) which was dismissed as barred by time and after reconsideration of the entire case of consolidation, the cancellation of allotment of land made in their favour in the original consolidation scheme by order, dated 12-6-1979 was upheld. The revision petition filed by them before the Board of Revenue was too dismissed through judgment dated 7-9-1988 and review petition filed by them was also rejected.
3. The Constitutional petition filed by the petitioners before the Lahore High Court has been dismissed through the impugned judgment, dated 26-10-1999 against which leave is sought on the ground that the High Court could not 'sit as a Court of appeal against the findings of facts recorded by the Courts below against them on merits.
' Learned counsel for the petitioners submitted that the main objection which has not received proper consideration of the Courts below including the High Court was that in the original consolidation scheme, the land was allotted to the petitioners which was not challenged within limitation by any of the affected persons and the cancellation of the said allotment on the time- barred appeal of Mrs. Qaiser Sheraz made by the Collector (Consolidation) through order, dated 12-6-1979 was illegal for the petitioners were not heard because they were not impleaded as party.
The consideration of the case by the Additional Commissioner in the appeal of the petitioners on merits was not justified, for the original order of allotment of the land in their favour was not under issue and the only limited question was whether the cancellation of allotment of land to the petitioners was justified without hearing them. The reconsideration of the case on merits amounted to reopen the original consolidation scheme which had become final.
5. Prima facie, the arguments appear to have some force. Issue notice to the respondents for a date in the first week of February, 2002."
3. The petitioners purchased land measuring 10 Kanals situated in revenue estate of Niaz Beg, Lahore, vide registered sale-deed dated 9-4-1975 on the basis of which mutations were sanctioned in their names. The Khasra numbers of their ownership mentioned in the sale-deeds were, however, subsequently changed with new numbers during the consolidation proceedings in the revenue estate. The dispute between the parties pertained to Khasra No,5073 which in consequence to the consolidation, as per claim of the petitioners, was allotted to them vide order dated 30-4-1979 and later the Collector while entertaining a time-barred appeal filed by respondent No,1 in the year 1984, without summoning the record and hearing the petitioners, changed their entitlement of Khasra No,5073 and allotted the same to respondent No,1 vide order, dated 12-6-1979. The petitioners on coming to know about the order of the Collector in appeal challenged the same before the Additional Commission through an appeal, which could not succeed and was dismissed by the Additional Commissioner vide order dated 3-11-1984. The petitioners then took the 'natter of the Board of Revenue (B.O.R.) through a revision petition which also failed and the Member Consolidation dismissed the same vide order, dated 9-7-1988. The petitioners being not satisfied sought review of the order of Member, B.O.R. Through a petition under section 8 of the Board of Revenue Punjab Act, 1957 and on dismissal of the review petition vide order, dated 27-2-1990, invoked the Constitutional jurisdiction of Lahore High Court through Writ Petition No,2575 of 1990 but remained unsuccessful.
4. Learned counsel while repeating the arguments advanced on behalf of the petitioners before the High Court in the writ petition has contended that neither the petitioners were impleaded as party in the appeal before the Collector nor they were called by the Collector before passing the adverse order and were condemned unheard.
5. A perusal of the record would show that at the time of confirmation of consolidation scheme in the revenue estate of Niaz Beg on 29-7-1977 under section 10(3) of Consolidation of Holdings Ordinance, 1960, the Consolidation Officer allotted Khasra No,5066 to Mst. Qaisra Sheraz respondent No,1 herein, instead of Khasra No,5073 which was previously owned by her, therefore, she preferred appeal before the Collector and sought restoration of Khasra No,5073 in her name.
The Collector having come to the conclusion that the request of respondent No,1 was reasonable allowed the appeal and allotted Khsra No,5073 to her. The grievance of the petitioners was that they having been allotted the land of Khasra in question developed the same and also constructed house but the Collector through the change made behind their back deprived them from the valuable land. The claim of respondent No,1 on the other hand, was that she purchased the land in Khasra number in question much before consolidation in the revenue estate, and therefore; was entitled to retain the same which was wrongly excluded from her entitlement. The Additional Commissioner (Consolidation) having considered the matter minutely, in the appeal preferred by the petitioners dismissed the same with the observations that the respondent was not represented in the consolidation proceedings, therefore, confirmation of Khata in her absence would not affect her rights and while maintaining the order of Collector dismissed the appeal. Member Consolidation in the Board of Revenue having considered the matter in detail in the revision observed that the respondent had preferential right to hold the land allotted by the Collector and the petitioners being not the scheme holders, were not necessarily required to be impleaded as party in the appeal before the Collector and would have no preferential right to retain the land previously owned by the respondent before the consolidation and was of the view that the claim of the petitioners for specified piece of land, on the basis of possession, for the purposes of consolidation of holding could not be admitted. The Member Consolidation, B.O.R. In para.4 of the order, dated 27-2-1990 passed by him in the review petition observed that the petitioners did not press the claim against the respondents and consequence thereto, no argument was advanced on behalf of the respondents in rebuttal. The review petition was, however, dismissed on merits.
6. When confronted with the above situation, learned counsel for the petitioners submitted that the learned counsel who represented the petitioners before the Member, B.O.R. Has sworn an affidavit to the effect that he had not given up the claim of the petitioners against the respondent; before the Members, B.O.R. Consolidation, Punjab, Lahore. In proof thereof, an affidavit has been placed on record. Be that as it may, we do not deem it proper to comment upon the controversy relating to the correctness of the above statement made by the learned counsel representing the petitioners before the Member, Consolidation, B.O.R., Punjab, Lahore.
7: Learned counsel for the petitioners while repeating his arguments . Advanced before the Revenue Authorities contended that the confirmation of the consolidation scheme having attained finality was not challengeable subsequently and the Collector while entertaining a time-barred claim changed the entitlement of the parties in violation of the law of consolidation through illegal exercise of jurisdiction.
8. In response to the notice issued to the respondent, departmental representation is in attendance with record but no one has appeared on behalf of the respondents. However, we with the assistance of the learned counsel for the petitioners, have scrutinized the orders passed by the revenue authorities and find that the petitioners being not owners in the revenue estate before the consolidation were not held scheme holders and consequently, their non-impleadment as party before the Collector was not considered a ground to undo the order of Collector. The learned counsel for the petitioners has contended that since the petitioners were condemned unheard by the Collector in appeal, therefore, the confirmation of the order of Collector by Additional Commissioner in appeal and Member, B.O.R. In revision were of no consequence and that the High Court while not attending this aspect of the matter, has committed an illegality. The Additional Commissioner consolidation and the Member, B.O.R. In appeal and revision preferred by the petitioners having given full consideration to all aspects of the case disposed of the same on merits, therefore, the grievance of the petitioners that they were not provided opportunity of hearing by the Collector in appeal was adequately redressed subsequently by the Revenue Authorities and this ground was no more available to the petitioners before us for the purpose of this petition. The learned counsel next contended that the Collector was functus officio to entertain the claim of respondents after the prescribed period and change the entitlement of the parties at subsequent and consequently, the order passed by the Collector in appeal was without jurisdiction and coram non judice. We are arraid, this objection relating to the exercise of jurisdiction by the Collector regarding change of the entitlement of the parties was neither raised before the Revenue Authorities nor in the High Court, therefore, the same cannot be allowed to be raised before this Court for the first time. The Revenue Authorities having extensively dealt with the entitlement of the parties, have rightly determined the matter through the concurrent findings of fact and the High Court dismissed the writ petition with the following observation:-- "5. It is clear that the petitioners are in fact asking this Court to act as a Court of Appeal or review and to decide the question of fact, which stands decided against the petitioners at least at four stages viz. Collector, Additional Commissioner and Board of Revenue in revision and Board of Revenue in review. This, I am afraid cannot be done. While exercising jurisdiction under Article 199 of the Constitution, this Court of appeal and even an incorrect finding does not furnish good ground for interference However, if it is shown to be a case of a finding having been arrived at in disregard of material evidence or is shown 'to be otherwise perverse' interference in writ jurisdiction may be permissible. Additionally the order of the Additional Commissioner shows that the petitioners' appeal before him was barred by time. Learned counsel was unable to show that this finding of the Commissioner is incorrect or that the petitioners ever prayed for condonation of delay. It is settled law that a time-barred appeal has to be dismissed as such, without adjudication on merits. It is also settled 'that there cannot be implied condonation of delay'. The order of the Additional Commissioner, therefore, is correct and the petitioners' appeal was rightly dismissed. In spite of this, petitioners' case on merits was considered twice by the Board of Revenue and the petitioners failed. In the circumstances, I hold that no interference against the impugned orders is called for.
6. The impugned order, dated 27-2-1990, passed in review by Member, Board of Revenue clearly records that the petitioners did not press the case against respondent No,1, learned counsel for the petitioners disputed that he ever made such a statement. The presumption of correctness is attached to the judicial proceedings/record and mere counter assertion of the learned counsel is of no avail. Petitioners are, therefore, debarred from asking for equitable relief from this Court."
9. The learned counsel for the petitioners has not been able to point out any illegality or infirmity in the order of the High Court or the Revenue Authorities calling for interference by this Court. We having considered the matter in detail, find no substance in this petition and dismiss the same, accordingly.