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Civil Petition for Special Leave to Appeal No. K‑162 of 1978, decided on 4th November 1978.

(On appeal from the judgment and order of the High Court of Sind, at Karachi, dated 28th September 1978, passed in Constitutional Petition No. 128 of 1972).

---Art. 185(3)‑Special leave to appeal‑High Court by an elaborate order applying its mind to facts as well as evidence and agreeing with finding of fact recorded by Department concerned‑Case not involving any question of law nor High Court committing any constitutional error in exercise of its constitutional jurisdiction‑Petition dismissed.

Maroof Ali Khan, Advocate and Vakil Ahmad Kidwai, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 4th November 1978.

.‑This petition for leave to appeal is directed against the judgment of a learned Single Judge of the Sind High Court, at Karachi, dated 28‑9‑1978, and arises in the following circumstances :---

Taj Muhammad and his father Marhu, the predecessor‑in‑interest of the petitioners, were claimant displaced persons from East Punjab. Against his verified claim, Taju was allotted land comprising in Khasra No. 70 and 371 situate in deh Kharo, District Sanghar. However, on an application made by someone, whose identity is not known, the authorities in the Department took proceedings in the matter of allotment of Taju to ensure if the land allotted to him was not in excess of his entitlement. It seem that during the pendency of the said proceedings the heirs of Marhu made an application to the Assistant Rehabilitation Mukhtar‑e‑Kar praying therein that the land comprising in Khasra No. 70 may be withdrawn from Taju and the same allotted to them against the claim of Marhu. This application was made on 23‑6‑1961 and was allowed by the A. R. M. vide his order of the same date. On the basis of the said order, Khatoni was issued to the heirs of Marhu and consequently an endorsement was made in the Khatoni which was already issued in the name of Taju on 25‑6‑1971 that the land comprised in Khasra No. 70 was withdrawn from him and the same allotted to the heirs of Marhu.

It seems that after the death of Marhu the proceedings in regard to as to who were his heirs were pending before the A. R. M. respecting which a public notice had been issued inviting objections by 20‑7‑1962. In 1964, however, an application was filed by respondent Kalu (through his attorney) before the authorities contending therein that the land comprising in Khasra No. 70 had already been allotted to him vide Khatoni, dated 4‑7‑1961 and therefore, the same could not have been allotted to the heirs of Marhu subsequently, i.e. on 25‑7‑1960. The Department on 27‑7‑1964 and when the heirs of Marhu came to know of the said order they filed an application before the Deputy Commissioner Additional Settlement Commissioner under sections 10 and 11 of the Land Settlement Act, 1959, accepted this application contending therein that respondent Karu had obtained the said allotment on account of fraud inasmuch as there already existed in the field the order of A. R. M., dated 23‑6‑1971 and so long as the said order was not set aside the said allotment to Kalu could not be made. The record would show That the said application was treated by the learned Deputy Commissioner/Additional Settlement Commissioner as an appeal who having heard the parties dismissed the same, vide his order, dated 29‑I1‑1969. Being aggrieved, the petitioners challenged the said order in revision before the Settlement Commissioner but their application was dismissed, vide order dated 3‑2‑1972. Finally they challenged all the said orders by a writ petition in the High Court, but their said petition also was. dismissed, vide the impugned judgment.

From the narration of these facts, it is evident that the case of the petitioners, which was examined in the Department thrice and again by the High Court, was found to have no substance in it, and so it was rejected. The view taken by the functionaries of the Department was "that the entries in regard to date of withdrawal of the land from the allotment of petitioner Taju were forged" as also "that the same survey number had been allotted to respondent Kalu on 4‑7‑1961", i.e. to say long before it was allotted to Taju. With this finding of fact the learned Judge in the High Court substantially agreed as is evident from the following observations made by him in para. 7 of the impugned judgment.

7. On a consideration of all the circumstances I have come to the conclusion that the Perchi Taqsim produced by petitioner Taju as Annexure A' to the petition does not relate to the petitioner Taju because the name of the transferee in this document which is the basis of the entitlement shows an endorsement of the Assistant Rehabilitation Mukhtiarkar that the Survey Number in question had been transferred in the name of Marhu, the father of the petitioner on 25‑7‑1961. It could not have been transferred to Marhu on this date because R. L. II Register shows the date of transfer to be 7‑7‑1961. If on the other hand we are to believe that the endorsement made on the Perchi Taqsim bears the correct date, the case of the petitioner does not advance because on 4‑7‑1961 this survey number had already been transferred to respondent Kalu. The conclusion is irresistible that the land in question stood transferred to respon dent Kalu earlier than its transfer to Marhu, the father of the petitioners. The subsequent transfer in favour of Marhu is for such reason invalid because on such date the land was not available for transfer."

It would thus be seen the learned Judge in the High Court had, by an elaborate order spread over more than six typed pages, applied his mind to the facts as well as the evidence, and consequently agreed with the finding of fact recorded by the Department. In these circumstances, there is nothing that can be done for the petitioners. In point of fact, the case does not involve any question of law, nor can it be contended that in the exercise of its constitutional jurisdiction the High Court had committed any constitutional error.

This petition, therefore, fails and is dismissed.

Petition dismissed.

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