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Civil Petition for Special Leave to Appeal No. 92 of ' 1975, decided on 2nd May 1975.

(On appeal from the judgment and order of the Lahore High Court made on the 4th of November 1074, in Writ Petition No. 248‑R of 1974).

‑‑‑ Paras. 29 & 52 read with Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10 & 11‑Contention that petitioners having purchased land in India transaction could be given effect to in Pakistan under paras. 29 & 52 and that finding of Rehabilitation authorities that they obtained land fn excess of their entitlement merited cancellation‑ Contention not having been taken, nor facts relating to such contention raised, before Settlement authority, held, unacceptable.

‑‑ Para. 29‑Para, caters for alienations not given effect to in last Jamabandi before Partition‑Para. not applicable to alienations taking place, or rights acquired, long before Partition.

Paragraph 29 of the Rehabilitation and Settlement Scheme is intended to cater for those alienations which could not be given effect to in the last jamabandi prepared before the Partition of the subcontinent, and it would indeed work hardship on the land‑owners concerned if they were to be penalised for the circumstances created by the Partition of the country. There paragraph, however, was certainly not intended to apply to cases where the alienation was said to have taken place, or rights were acquired, fifteen years before the Partition.

Muhammad Sadiq v. Fateh Muhammad P L D 1967 S C 233 distinguished.

----‑ Para. 52‑Para. gave effect to such registered deeds and decrees of civil Courts and other similar claims which could not be reflected in revenue records before Partition‑‑Para, however no longer in force and omitted from Scheme.

Ch. Khalil-ur-Rehman, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 2nd May 1975.

This petition for leave to appeal is directed against an order made by a learned Single Judge of the Lahore High Court on 4‑11‑1974, whereby he has dismissed Constitution petition moved by the petitioners in respect of the cancellation of an area of evacuee agricultural land from the names of the two petitioners, who are mother and son respectively.

The two petitioners had obtained land in village Lulliani, in Tehsil Kasur of the Lahore district, in lieu of their verified claims for lands abandoned in India. An information was laid against them by respondents Nos. 2 to 4, alleging that they had obtained excess land by practising fraud and misrepresentation in the matter of the verification of their claims. The matter was examined in detail by the learned Settlement Commissioner, exercising the powers of the Chief Settlement Commissioner under section 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, and he came to the conclusion that the complaint against the petitioners was correct. He found that each of the petitioners had abandoned only 7 bighas and 11 biswas of agricultural land in India, whereas they had secured allotments to the extent of 51 bighas each. He, therefore, ordered the cancellation of the excess allotment. The High Court was not persuaded to interfere with this order of the learned Settlement Commissioner.

It is submitted by the learned counsel for the petitioners that they had respectively purchased, in 1932, land measuring 30 bighas, and 33 bighas and 10 biswas of land, that although the transactions had not been entered in the revenue records until 194 7, yet they could be given effect to in Pakistan by the Rehabilitation and Settlement authorities under Paragraphs 29 and 52 of the Rehabilitation Settlement Scheme. In support of this submission, reliance was placed on Mohammad Sadiq v. Fateh Mohammed (PLD 197SC 233.).

The contention is unacceptable for two reasons. In the first place, we find that these facts were not urged before the learned Settlement Commis sioner when" he passed the impugned order on the 27th of November 1973. In the second place, the two paragraphs of the Rehabilitation Settlement Scheme relied upon by the petitioners have no application. Under Paragraph 29 of the Scheme rights are to be given to a claimant in accordance' with the entries in the special Jamabandis received from the prescribed areas of India, but in a case where hardship is caused by the application of this rule in individual cases reference is to be made to the Rehabilitation Commissioner, presumably for the relaxation thereof. This paragraph is intended to cater for those alienations which could not be given effect to in the last jamabandi prepared before the Partition of the subcontinent, and it would indeed work hardship on the land‑owners concerned if they were to be penalised for the circumstances created by the Partition of the country. The paragraph, however, was certainly not intended to apply to cases where the alienation was said to have taken place, or rights were acquired, fifteen years before the Partition. The petitioners have not, even before us, furnished any satisfactory explanation for their failure to have their purchases mutated in their names at the proper time. In these circums tances, there was no justification for giving the petitioners any benefit under paragraph 29 of the Rehabilitation Settlement Scheme. The facts in the precedent case were entirely distinguishable, as they did constitute a case of hardship, the land having been purchased in that case in 1940 in India and the transaction having been entered in the revenue records, but some litigation was still pending with the result that final entries could not be made in the Jamabandi.

As regards the application of paragraph 52 of the Rehabilitation Settlement Scheme it has to be observed that this paragraph was omitted from the scheme on the 14th of January 1959. Even otherwise, this paragraph was intended to give effect to registered deeds and decrees of civil Courts and other claims of alike nature, which could not be reflected in the revenue records before Partition owing to the disturbed conditions then prevailing. In the present case, the petitioners are relying only oil' oral transactions of sale in their favour, which find no mention whatsoever in the relevant revenue records although a period of fifteen years had elapsed between 1932 and 1947.

In the circumstances, the High Court was right in refusing to grant any relief to the petitioners. The present petition fails and is hereby dismissed.

Petition dismissed.

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