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Civil Petition for Leave to Appeal No. 196 of 1974, decided on 15th October 1974.

(On appeal from the judgment and order of the Lahore High Court, dated 9‑11‑1973 in Writ Petition No. 1477/R of 1965).

‑‑---Art. 199‑Writ jurisdiction‑Question whether a certain person survived another‑ Essentially one of fact‑Question of fact decided by Settlement authority on material evidence produced‑High Court, held, rightly declined to interfere with finding of Settlement authority.

‑‑ Art. 185‑Leave to appeal to Supreme Court‑Point neither urged before High Court nor before tribunal originally seized of case -Petition for leave to appeal on such point dismissed.

D. M. Arbay, Advocate Supreme Court instructed by Khawaja Wali Muhammad for Petitioners.

Nemo for Respondents.

Dates of hearing : 14th and 15th October 1974.

.‑This petition is from the judgment of the High Court dated 9‑11‑1973, dismissing Writ Petition No. 1477‑R of 1966 filed by the petitioners herein.

The dispute is about the right of inheritance to one Karam Dad a right- holder who died early in 1953. Mutation of his inheritance entered at No. 51 was attested on 23‑4‑1953 in favour of his three brothers Ghulam Muhammad, Jagirdar and Mansabdar and sister Mst. Barkate. Ten years later, respondents 1 to 4, sons of Ghulam Muhammad who died in the meantime, filed a time‑barred appeal for the exclusion of sons of Mst. Barkate from the inheritance on the ground that their mother had pre‑deceased Karamdad and therefore did not succeed to the deceased right holder under the Muslim Law of Inheritance. The appeal was accepted by Deputy Settlement Commissioner vide order dated 19‑4‑1962. On a revision by the sons of Mst. Barkate the case was remanded by the Addi tional Settlement Commissioner on 20‑4‑1963 to the Deputy Settlement Commissioner for a fresh decision after hearing all parties concerned it, the dispute. On remand, the Deputy Settlement Commissioner after hearing the parties vide order dated 18‑10-1963 confirmed the earlier order of D.S. C. dated 19‑4‑1962 and the two sons of Mst. Barkate were again excluded from inheritance to the deceased right‑holder. It is pertinent to point out that Nisar Ahmad (petitioner No. 1 herein) who was present in person, on being asked by the D. S. C. to produce evidence in support of his case, expressed his inability to do so. On a further revision by the sons of Mst. Barkate the order of the Deputy Settlement Commissioner was upheld by the Additional Settlement Commissioner vide order dated 6‑2‑1965. From the order dismissing the revision, it appears that the petitioners in the revision, who are also the petitioners herein, were absent. But nevertheless the learned Additional Settlement Commissioner examined the case on merits and found that there was no proof that Karamdad died during the lifetime of Mst. Barkate and therefore the order of the Deputy Settlement Commissioner on remand was not open to any question.

Aggrieved by the above order the petitioners filed the writ petition which was dismissed by a learned Single Judge by means of the impugned order. The main ground urged by the petitioners in the High Court was that the Deputy Settlement Commissioner after remand of the case disposed it of on 18‑10‑1963 without affording proper opportunity to the petitioners to prove that Karam Dad had died during the lifetime of Mst. Barkate. It was suggested that the petitioners herein had no notice of the hearing of the case by the D. S. C. on 18‑10‑1963 after its remand by the Additional Settlement Commissioner. The learned Single Judge appears to have gone into the matter with care and come to the conclusion that not only the petitioners had notice of the hearing but Nisar Ahmad petitioner was present in person before the Deputy Settlement Commissioner, and on being speci fically asked to produce evidence in support of his case, he expressed his inability to do so.

In support of this petition the petitioners' learned counsel repeated the argument which had been canvassed in but rejected by the High Court. The question whether or not Mst. Barkate survived Karamdad is essentially one of fact which has been decided by the Settlement Authorities against the petitioners on the material produced before such authorities. Therefore High Court was right to decline to interfere.

It was also submitted by the petitioners' learned counsel, that the respondents' initial appeal against the mutation order dated 23‑4‑1953 was hopelessly barred by limitation, and there is nothing to show that the D. S. C. had condoned the delay. The petitioners have not placed on the record a copy of the order of the D. S. C. dated 19‑4‑1964 and in the absence of that order, there is no basis for any such plea. In any event, the point does not seem to have been urged either in the High Court or before the Settlement Authorities.

The petition is therefore dismissed.

Petition dismissed.

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