' TALAAT QAYUM QURESHI, J.---Through writ petition in hand the petitioners have sought declaration of orders dated 27-8-1999 of respondent No.2, 22-2-1989 and 11-5-1989 passed by respondent No.4 as without lawful authority and of no legal effect and they have also prayed for restoration of order dated 22-4-1999 of respondent No .3 .
2. Mian Iqbal Hussain, the learned counsel representing the petitioners argued that respondent No.1 had filed application on 15-1-1971 claiming half share in Mauza Batora. He also made statement on 19-1-1971 before the Land Disputes Enquiry Commission in which he claimed half share, in Mauza Batora. Later on he filed another application which though was dated 7-10-1969 but was filed on 22-1-1971 and the same was filed by the Commission without passing any order thereon, therefore, the property in dispute was half share in Mauza Batora.
3. It was also argued that the order of respondent No.3 dated 22-4-1999 had attained finality and was never challenged before respondent No.2, rather in appeal, its restoration was prayed for by respondent No. 1 . As such legally respondent No.2 could not set aside the same through the impugned order.
4. It was further argued that against the order dated 22-2-1989 appeal of the petitioners was accepted vide order dated 22-4-1999, which was challenged by respondent No.1 in his appeal, therefore; the said order dated 22-2-1989 should not have been restored by respondent No.2 vide his order dated 22-4-1999.
5. It was further argued that through subsequent order dated 8-6-1999 respondent No.3 had only clarified his previous order dated 224-1999, therefore, the impugned order of respondent No.2 is illegal.
6. It was further argued that the appeal filed by respondent No.2 against the order on review by respondent No.3 is not maintainable and against law. Moreover, the petitioners were also not made party therein.
7. It was further argued that the order dated 22-2-1989 passed by respondent No.4 is against law, as the same was passed in violation of the provisions of section 45 of the West Pakistan Land Revenue Act, 1967 and through which huge property measuring 2190 Kanals, 6 Marlas of land and later on 2417 Kanals, 9 Marlas through order dated 11-5-1989 recorded in the names of several other persons was ordered to be exclusively recorded in the name of respondent No.1, without hearing/impleading the said other persons.
8. On the other hand Mr. Abdul Sattar Khan, the learned counsel for respondent No.1 argued that factual controversies have been raised in the writ petition which cannot be gone into by this Court while exercising its Constitutional jurisdiction.
9. It was also argued that the writ petition was also not maintainable because the Special Tribunal i.e. Land Disputes Enquiry Commission appointed for the specific purpose has given its findings and even if another view was possible, the same cannot be made basis for setting aside the judgment/order passed by Special Tribunal.
10. It was also argued that the learned Deputy Commissioner in order to know the factual position had appointed Tehsildar Babuzai and Tehsildar Land Reforms as Local Commissioners. They were directed to submit report after spot inspection which they submitted on 18-1-1989 and it was on the basis of the said report that the order dated 22-2-1989 was passed.
11. It was also argued that the order dated 22-2-1989 had been reviewed vide order dated 11-5-1989 by the learned Deputy Commissioner but the said order (dated 11-5-1989) was not challenged by the petitioners before any forum, hence the same had attained finality.
12. It was further argued that respondent No.1 had submitted application on 7-10-1969 in which the property in dispute was specifically mentioned. Thereafter, he moved another application on 15-1- 1971. His earlier application dated 7-10-1969 was placed on record and both were before the Land Disputes Enquiry Commission when decision with regard to property in dispute was made. The property in dispute included all those properties mentioned in the application dated 7-10-1969 and the judgment and decree passed by the learned Senior Member Board of Revenue, respondent No.2 was proper and in accordance with law, hence required no interference.
13. Mr. Azizur Rehman, Advocate the learned counsel for the newly-added respondent argued that his clients had purchased a portion of the suit property and a decree was passed in their favour on 9-4-1997 against respondent No.1 by the learned Civil judge, Swat, which is still intact. Even if respondent No.1 is held entitled to half share in Mauza Batora, the land purchased by added respondents is covered into that half share, hence their rights are protected under section .41 of Transfer of Property Act.
14. We have heard the learned counsel for the parties and perused the record.
15. We tend to agree with the learned counsel for respondent No.1 and are of the view that the writ petition in hand is not maintainable for the reasons: Firstly, the question raised in the writ petition is as to what was the -property in dispute" i.e. Whether the property in dispute consists of half share in Mauza Batora or it includes those properties which find mention in the application submitted by respondent No.1 on 7-10-1969 before the Land Disputes Enquiry Commission. We are afraid while exercising our Constitutional jurisdiction we shall not be in a position to embark upon the enquiry into the facts pertaining to the matter and to go into the factual controversy to find out as to what was land in dispute, therefore, the writ petition is not maintainable.
' Secondly, the N.-W.F.P. Government vide Notification No.66 (S.P.L.)/ H.D/70, dated 8-10-1970 had appointed Dir, Swat Land Disputes Enquiry Commission to determine as to what property was State Property of former State of Dir and Swat respectively; what property is private or personal property of late Nawab Sir Shah. Jehan Khan, Ex-Ruler of the former State of Dir late Sir Abdul Wadud Sahibzada, K.B.E., Badshah Sahib of the former State of Swat and respective shares of the various heirs of the aforesaid two Ex-Rulers in their personal or private property. Respondent No.1 on 7-10- 1969 submitted application before the said Commission and thereafter on 15-1-1971 submitted another application. The said Land Disputes Enquiry Commission after perusing the record and material placed before it decided the matter against which appeals/revisions were filed by the parties up to the highest hierarchy/forums provided under the law, who gave their findings after applying their mind. It is by now settled law that even if we form another view on re-appraisal of the record available before us, the same was not sufficient to justify interference and substitute our own findings in place of findings given by the forums/Tribunals of competent jurisdiction, if those findings are otherwise found to be arbitrary or capricious. Wisdom in this regard has been gained from the following judgments:--
(i) Export Promotion Bureau and others v. Qaiser Shafiullah 1994 SCM R 859.
(ii) Ghazanfar Abbas v. Additional District Judge Jhang and 3 others 2001 YLR 644.
(iii) Siraj Din and 17 others v. Member (Judicial-1) Board of Revenue, Punjab Lahore and 11 others 2003 M LD 772.
(iv) Khuda Yar v. M.B.R. And others 2003 M LD 1075.
16. Abdul Wali Khan through Legal Heirs v. Muhammad Saleh 1998 SCM R 760. So far as the argument of Mr. Azizur Rehman the learned counsel representing the newly-added respondent is concerned, suffice it to say that being ostensible purchaser against lawful consideration and having decree of competent Court of law passed in his favour in Suit No.404 of 2001 decided on 9- 4-1997 his rights are protected under section 41 of the Transfer of Property Act and whatever may be the outcome of litigation between the petitioners and respondent No.1, he shall be entitled to the purchased property.
17. Therefore, without dilating upon other arguments addressed by the learned counsel for the parties we hold that the writ petition in hand is not maintainable and the same is dismissed with no orders as to costs.