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Civil Petition for Special Leave to Appeal No. 226‑R of 1977, decided on 10th May 1978.

(On appeal from the judgment and order of the High Court of Sind at Karachi, dated 30th October 1967, in Constitutional Petition No. 245 of 1972).

Displaced Persons (Land Settlement) Act (XLVII of 1958)‑--

----Ss. 10 & 11‑Fraud‑Cancellation of allotment‑‑‑Petitioner leaving behind in India only about 3 bighas of land but inadvertently his claim verified by Central Record Office for about 89 kanals‑Petitioner taking advantage of such mistake getting allotment of about 28 acres of land in excess of his entitlement‑Petitioner, held, acted fraudulently by taking unfair advantage of inadvertent mistake of officers of Central Record Office.‑[Fraud].

Sher Muhammad v. Chief Settlement Commissioner 1971 S C M R 339 ref.

Birjees Nagy, Advocate and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Noor Ahmad Noori, Advocate‑on‑Record for Respondent No. 2.

Nemo for Remaining Respondents.

Date of hearing : 10th May 1978.

J.‑This leave petition is meant to impugn the judgment of the Sind High Court at Karachi, dated 13‑10‑1977, by which the petitioner's writ petition, against the order of Settlement Commissioner, dated 16‑11‑1967, was dismissed.

The facts leading to this petition are that the petitioner, a displaced person from Hissar, India, filed before the Land Settlement Authorities Form No. 1334 regarding the land abandoned by him in village Khot Kallan, District Hissar, India, from where he migrated to Pakistan. The admitted position is that in the said form, he had claimed 3 bighas and 10 biswas of land but due to do inadvertent mistake of the Central Record Office, this claim was verified for 89 kanals and 14 marals. Taking advantage of the said mistake of the department, however, the petitioner got allotted to himself 28 acres and 36 ghuntas of land in the revenue estate of Bharia Road, District Nawabshah. It seems that when the brothers of the petitioner, who had also filed before the Land Settlement Authorities Form No. 1334 regarding the land left by each one of them. in the same village as the petitioner came to know of these facts, they filed before the Chief Settlement Commissioner an application under sections 19 and 11 of the Land Settlement Act pointing out therein that 28 acres and 36 ghuntas of land allotted to the petitioner had its origin in his fraud and false representation. And therefore, they prayed that action may be taken against him according to law.

On receipt of this application by the Chief Settlement Commissioner, he marked it to the Settlement Commissioner, with powers of Chief Settlement Commissioner, for disposal. The order of the learned Settlement Commis sioner would show that on receipt of the case from the Chief Settlement Commissioner, he issued notice to the parties, allowed them the liberty of whatever evidence they wished to produce in support of their respective stands, finally heard them at length and by his order, dated 16‑11‑1967, accepted the petition' holding that the petitioner was proved to have committed fraud and misrepresentation in getting allotted to himself 28 acres and 36 ghuntas of land in excess of his entitlement being aggrieved of the said order, the petitioner filed in the High Court of Sind at Karachi a Constitutional Petition. But his petition was dismissed by the impugned order.

We have heard Mr. Birjees Nagy, the learned counsel for the petitioner and Mr. Noor Ahmad Noori the‑learned Advocate‑on‑Record who has filed Caveat on behalf of the respondents. The only question which requires determination in this case is whether the petitioner had; by practising fraud and making misrepresentation, got allotted to himself 28 acres and 36 ghuntas of land in the District of Nawabshah in excess of his entitlement. By going through the order of the learned Settlement Commissioner, what we have noted is that in the proceedings before him the petitioner had admitted that he had been allotted land in excess of his entitlement, But he nevertheless contended that the Farde Haqiat issued in his favour was correct, as he had purchased the said excess land (60 bighas) from one Hindu Bania, namely, Indar, a year before he migrated to Pakistan. In support of this latter assertion, however, he was unable to produce before the learned Settlement Commissioner any evidence. Furthermore, in support of the application filed by them, the informers had appeared as their own witnesses as well as produced three other witnesses, namely, Munshi Iftikher Ahmad, Tapedar (P. W. 1), Munshi Aminur Rehman, Patwari, Central Record Office, Lahore (P. W. 2) and Munshi Talib Hussain, Tapedar (P. W. 3). Now according to the special Jamabandi produced by Munshi Aminua Rehman (P. W. 2), the petitioner herein had left in Khot Kallan, Tehail Bansi, District Hissar, only 3 bighas and 10 biswas of land. But by an inadvertent mistake of the Central Record Office, in the form submitted by the petitioner .his claim was verified for 89 kanals and 14 marlas. By taking advantage of this mistake of the department, the petitioner, therefore, got allotted to himself 28 acres and 36 ghuntas of land in the District of Nawabshah in excess of his entitlement. In these circumstances, it cannot be said that the finding recorded by the Settlement Commissioner against him is not proper. Nor indeed can it be said that the judgment of the High Court, which approved the said finding of the Settlement Commissioner, is in any way illegal. In point of fact in a similar case decided by this Court in the case of Sher Muhammad v. Chief Settlement Commissioner (1971 S C M R 339), it was held that "the allotment of excess area was due to an inadvertent mistake on the part of the officers of the Central Record Room who had wrongly verified his claim for 260 & bighas and 12 biswas. It is idle for the petitioner to contend that he did not know what his actual entitlement was. If knowing the same he tried to take unfair advantage of the inadvertent mistake made by the officials of the Central Record Office, he acted fraudulently".

It may as well be mentioned that this case had come up for hearing on 4‑3‑1978 when the learned counsel for the petitioner was allowed two months' time to produce whatever documents he wised to rely upon to show that the finding of the learned Settlement Commissioner was factually incorrect. However, the learned counsel conceded that his client has not been able co provide him with any documents. However, be argued that his client had purchased from a Hindu Bania 60 bighas of land a year before he migrated to Pakistan. But in the High Court no notice was taken of this claim. There is no force in this contention. The finding of the High Court is that the said purchase of 60 bighas of land was an independent transaction having nothing to do with the transaction which, was impugned in this case. The learned counsel has not been able to controvert the said finding.

We are, therefore, satisfied that the judgment of the High Court is un exceptionable. This petition, therefore, fails and is dismissed.

Petition dismissed.

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