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Civil Appeal No. 45 of 1973, decided on 9th January, 1984.

(Against the judgment and order of the Lahore High Court dated the 21st March, 1972, in Writ Petition No. 219/R of 1965).

--‑Arts. 58 & 98‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10‑-‑Leave to appeal granted to succes sors‑in‑interest of petitioner to examine question whether High Court while exercising jurisdiction under Art. 98, justifiably interfered with findings of fact recorded by Settlement authorities, on a petition by respondent/Auction‑purchaser.‑[Finding of fact].

------O XII‑Abatement of appeal‑Appeal or petition to Supreme Court‑Provisions of Civil Procedure Code, 1906 not applicable‑No automatic abatement of appeal provided in Supreme Court Rules, 1980‑Technical failure on part of appellant Record completed and corrected at instance of respondents themselves‑Appeal, held, does not abate or fail in circumstances‑Such record, held further, not defective as successor‑in‑interest of respondent properly represented by counsel.‑[Abatement].

Ghulam Qadir and another v. Abdus Sattar and another P L D 1984 S C 12 and Khushi Muhammad v. Afzal Bibi 1980 S C M R 531 ref.

‑‑ Art. 98 ‑ Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10 ‑ Serious controversy on facts involving large scale tampering with record of Settlement authorities Settlement authorities being Custodian of record most competent to distinguish authorised from unauthorised, proper from improper and legal from illegal ‑ Inquiry held time and again and was found by Settlement authorities that N being in continuous pos session, had in fact applied for transfer of property and was entitled to transfer of that property‑Held, but for tamperings and deviation found and suspected to be unauthorised, N could not be denied its transfer nor could property be put to auction‑Finding of Settlement authorities being finding of fact, three was thereafter left little scope for disturbance of such a finding of fact by High Court in its constitutional jurisdiction particularly when facts remained controverted and facts admitted or found established were not capable of establishing case to an extent that finding of fact could be interfered with or reversed Findings of fact recorded by Settlement authorities were sustainable on record and not liable to interference in circum. stances.

Abdul Rashid, Advocate Supreme Court and Rao Muhammad Yousuf, Advocate‑on‑Record for Appellants.

Masud Akhtar, Advocate‑on‑Record and Sh. Salahuddin, Advocate‑on- Record for Respondents.

Date of hearing : 9th January, 1984.

Leave to appeal was granted to the two appellants who are the successors‑in‑interest of one Niazi to examine whether the High Court of Lahore by its judgment dated 21‑3‑1972, justifiably inter fered with the findings of fact recorded by the Settlement Authorities, while exercising its extraordinary jurisdiction on a petition by the respondent -auction purchaser Allah Banda, the predecessor‑in‑interest of the respon dent under Article 98 of the Constitution of 1962.

Niazi son of Kaloo, the predecessor‑in‑interest of the appellants filed N. C. H. form dated 26‑8‑1959 claiming the transfer of house No. 3/343 Mohalla Shiwa Mian Wala in Miani town bf Sargodha District. The evacuee owner of the house was shown to be Shev Charan son of Nikka and its annual rent Rs. 36. The rent payable was shown to be Rs. 205 which was, it appears, in arrears. This application on N. C. H. form was registered in the register of N. C. H. forms at Serial No. BWQ‑377 on 29‑8‑1959. The house applied for therein is mentioned to be house No. 3/343. A report is there after recorded on 27‑1‑1960 by Rehabilitation Inspector giving the number of house as 3/343, the locality as Miani, the evacuee owner as Shiv Charan and the annual rental as Rs. 36. In the report it is mentioned that one Niaz Muhammad son of Allah Banda is recorded to be in its possession since 1‑8‑1958 as its illegal occupant and the form of eligibility was pot accompanying the application. There is an order there after which is dated 2‑2‑1960 "Transferred. Put up Appen dix IX". It appears that at some stage there was tempering with this entry of N. C. H. form and the number of house 3/343 was changed to read 3/341. Elsewhere the original number 3/343 was left intact on the form. The report of the Rehabilitation Inspector which has been reproduced was cross over and thereafter number 3/341 was mentioned and the locality as Miani. In respect of the rent it was recorded that there was no assessment. The evacuee owner was mentioned as Gun Das Ram son of Shev Das and it was thereafter reported that house No. 3/341 was in possession of Niaz Muhammad son of Kaloo from 1‑1‑1949 and the number was correct. This report was so introduced as to substitute for the earlier report of the Rehabilitation Inspector keeping the order of transfer intact. Some affidavits also accompanied the N. C. H. form and in at least two of them the appli cant Niazi claimed that he was in possession of the house 3/343 since 1‑5‑1948. The affidavits are of the same date, that is, 26‑8‑1959 and attested by Oath Commissioner but in both there‑is an overwriting changing the house No. 3/343 to 3/341. The notice of transfer and the appendix which issued to Niazi was in respect of house No. 341 and a price of Rs. 1,302 was required to be paid.

The bid‑sheet on the basis of which the predecessor‑in‑interest of the respondent claimed the same house to have been purchased by him in auction shows that the particulars of the property sold at auction were to be found at serial No. 665 of fifth list of auction of evacuee property of Sargodha District held on 8‑10‑1960 at Miani. The Serial No. 665 has been over written to make it 662. The property No. 3/353 has been overwritten to read 3/343. The evacuee owner of this property is shown to be Brij Mohan and its reserve price is shown to be Rs. 1,440 and the highest bid of Rs. 340 was offered by Allah Banda which was accepted by the Additional Settlement Commissioner on 8‑10‑1960.

The claim set out by Allah Banda in the writ petition was that he had purchased house bearing No. 3/343 Ward No. 3, Miani, District Sargodha owned by one Hari Ram appearing at serial No. 62 in the auction list published by the Settlement Authorities. The particulars as given in the bid- sheet do not correspond to this description.

In course of time both Niazi, the predecessor‑id‑interest of the appellant as well as Allah Banda, the predecessor‑in‑interest of‑ the respondents came to possess P. T. O. of the same property that is house No. 3/343 and it was then that both were directed to file appeals which they did. The Deputy Settlement Commissioner while seized of the proceedings on remand held that Niazi, the predecessor‑in‑interest of the appellants had remained in continuous possession of the property, had applied for it and but for these unauthorized tampering in the N. C. H. form, and the reports, he was entitled to be transferred this property and its auction in favour of Allah Banda, the predecessor‑in‑interest of the respondent was illegal and improper. On these grounds, the P. T. D. obtained by Allah Banda on 6‑12‑1962 was cancelled and the property was held transferred to the predecessor‑in- interest of the appellant and he made. the required payments. The appeal of Allah Banda failed before the Additional Settlement Commissioner on 29‑6-64 and before the Settlement Commissioner on 29‑7‑1964.

Allah Banda thereafter filed a. Constitutional petition challenging the orders of the Deputy Settlement Commissioner passed on 5‑5‑1964, the orders of the Additional Settlement Commissioner dismissing his appeal on 29‑6‑1969 and the orders passed by the Settlement Commissioner on 29‑7‑1964. The case set out by him was that Niazi, the predecessor‑ca‑interest of the appellant was never in possession of the house No. 3/343, that he bad applied for the house No. 3/341 and that the auction ‑had been rightly held and confirmed in his favour and be was the holder of P. T. D. which could not be interfered with in such a summary fashion on a miscellaneous application of the predecessor‑in‑interest .of the appellants as was done by the Settlement authorities in reopening the case.

The learned Judge in the High Court after examining the record which was produced before him found that in fact the N. C. H. form filed by the predecessor‑in‑interest of the appellant had the corrections which indicated that he in fact applied for house No. 3/341. This was borne out by a number of applications made by him (wherein he admitted that he had committed a clerical mistake in giving the number of the property as 3/341 and it should have read as 3/343. The learned Judge also found that it was doubtful whether there existed any order of the Settlement Commis sioner dated 4‑4‑1964 whereby the proceedings were remanded to the Deputy Settlement Commissioner for the benefit of predecesor‑in‑interest of the appellants though that fact found mention in the order of the Deputy Settlement Commissioner himself 'which was passed on 5‑5‑1964 and also supported by an unattested copy of 1hat order. It was held that in the absence of such an order, the Deputy Settlement Commissioner was not competent to reopen the case for the benefit of the predecessor‑in- interest of the appellants.

A preliminary objection bas been raised by the learned counsel for the respondents contending that the appeal should be deemed to have abated as Allah Banda died on 4‑12‑1976 and this fact was brought to the notice of the Court by an application filed by the respondents, his successors‑in‑interest on 22‑1‑1978 alongwith a copy of the death certificate and it was thereafter that the appellants made an application dated 16‑3‑.1978 whereby they sought the impleading of the respondents but they never sought condonation of the delay. It is said that as the successors‑in‑interest of the respondent who died were not imp leaded,, within time and there is no application for the condonation of the delay, the appeal should be held to have abtated and an order should be passed accordingly.

It is settled law that the provisions of the Civil Proceedings Code do not apply to the hearing of petitions and appeals in this Court for which an altogether different and exhaustive provision is made in the Supreme Court Rules and Orders. On the basis of these provisions as interpreted by this Court in authoritative pronouncements there is no automatic abatement. When the record has been completed and corrected at the instance of the respondents themselves and it is only a technical failure on the part of the appellants, the appeal does not abate or fail. This has been so held in the following two decisions. Ghulam Qadir and another v. Abdusattar (PLD 1984SC 12), and Khushi Muhammad v. Aziz Bibi (1980 SCMR 531). We, therefore, overrule this objection and hold that the record is not defective a6 the successors‑in -interest of the respondents are being properly represented by the learned counsel.

The history of the case as narrated while giving out the facts makes it, that there was a very serious controversy on facts involving large scale tampering with the record of the Settlement authorities. Ordinarily the Settlement authorities themselves who were the custodian of such record would be the most competent to distinguish the authorized from the unauthorized, proper from the improper and the legal from the illegal. We find that time and again such an inquiry was held and it was found that Niazi had, in fact, applied for property No. 3/343, that he was in fact in continuous possession of it and was entitled to its transfer on the evaluation price and but for these tamperings and deviations which were found or suspected to be unauthorized, he could not be denied its transfer nor could that property be put to auction. That finding of fact has been examined over again by the Additional Settlement Commissioner and the Settlement Commissioner and these authorities have sustained it. There was there after left little scope for disturbance of such a finding of fact by the High Court in its constitutional jurisdiction particularly so when the facts remained controverter and the facts admitted or found established were not capable of establishing the case to an extent that the finding of fact could be interfered with or reversed.

The learned Judge in the High Court has not taken note of the fact that in the appropriate register the property applied for is mentioned as 3/343. The survey register also shows that Niazi was in possession of this property. ''he contention of the writ‑petitioner/respon dent that Niaz Muhammad was in possession of this property and was a different person than Niazi, the predecessor‑in‑interest of the appellants is not borne out from the copy of the survey register of the relevant period. The bid‑sheet would also show that it was not exactly the property 3/343 which was put to auction because there is tampering of the material particulars of the pro perty which was put to auction and there is irreconcilable discrepancy with regard to its evacuee owner. We are quite clear that the findings of facts recorded by the Settlement authorities were sustainable on record and that it was not liable to interference. The admission made by the predecessor‑in -interest of the appellants in various applications was in fact a desperate attempt on the part of an illiterate person to avoid the irreparable con sequences of the interference and tampering by unauthorized officials in the department. It cannot in this context serve as the foundation of a claim or be interpreted and understood in any other light except as a misconceived admission. We hereby, therefore, accept the appeal, set aside the judgment of the High Court, recall the writ and maintain the findings of the Settlement authorities.

M. Z. M. Appeal accepted.

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