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---S. 2--Constitution of Pakistan (1973), Art. 199--Findings of Tribunal of exclusive jurisdiction--Interference in constitutional jurisdiction--Scope of--Interference in writ jurisdiction in findings of fact of Tribunal of exclusive jurisdiction on question of fact, could only be made when such findings were entirely unjustified or arbitrary--Every error in recording finding as to fact was never considered to be error of law justifying interference in constitutional jurisdiction, but only juris dictional error warranted such interference--Findings recorded by Settlement Authority being well founded on record and order passed by such authority not suffering from any jurisdictional error, no case, held, was made out for interference of High Court in exercise of constitutional jurisdiction in circumstances.

Ch. Muhammad Hassan for Petitioners.

Ch. Akhtar Ali for Respondent No. 1.

Date of hearing: 9th October, 1984.

The dispute in this constitution petition pertains to the inheritance of one Shams-ud-Din, a refugee right-holder, who died in Pakistan in 1948. The petitioners claim that they are collaterals of said Shams-ud-Din and, as such, after his death they were entitled to inherit his estate alongwith his daughter Mst. Kalsoom, and on the death of Mst. Kalsoorr, (she having died issueless) they are entitled to inherit her share also alongwith Niaz Muhammad, her husband. The two mutations of inheritance sanctioned initially, whereby they stand excluded from inheritance under the orders passed by the Settlement Authorities, were challenged earlier by filing writ petition No. 1736 of 1969. A learned Judge of this Court accepted this petition in terms that the order of the Board of Revenue and the Additional Commissioner (Revenue), dated 19-6-1968 was declared to be without jurisdiction and it was directed that the revision of the contesting respondents against the order of the Collector shall be taken to be pending before a competent Rehabilitation Authority and shall be heard and disposed of by the Notified Officer under section 2 of the Repealing Act. The revision was then disposed of by the Settlement Commissioner (Lands) with the powers of Chief Settlement Commissioner Punjab vide order, dated 29-3-1981. The petitioners were again excluded from the inheritance and it was held that Niaz Muhammad contesting respondent would inherit the entire property. The order of the Collector, Sialkot, dated 23-8-1965 was thus set aside. The petitioners thereafter challenged the order, dated 29-3-1981 of the learned Settlement Commissioner (Lands) by filing the present constitution petition.

2. The dispute as indicated above, pertains to inheritance of Shams ud-Din, refugee right-holder, and only two questions require determination viz. whether Ghulam Abbas and others, the petitioners, are the collaterals of Shams-ud-Din, and whether Mst. Kalsoom left behind any son, and if so, how does it affect the shares to be devolved upon the parties. The finding returned by the learned Collector in the order, dated 23-8-1965 was that the petitioners are the collaterals of Shams-ud-Din and that Niaz Muhammad had failed to discharge the burden of proof of the existence of any child of Mst. Kalsoom. He, therefore, held that mutation No. 3 pertaining to the inheritance of Shams-ud-Din is to be attested half and half in favour of Mst. Kalsoom and Ghulam Abbas and others and mutation No. 2 pertaining to the inheritance of Mst. Kalsoom is also to be attested to the extent of one half in favour of Niaz Muhammad and remaining one half in favour of Ghulam Abbas and others. In revision, learned Settlement Commissioner vide impugned order has reversed both these findings and resultantly has held that the petitioners having not been established on record to be the collaterals of Shams-ud-Din and that Muhammad Yaqoob was the son of Mst. Kalsoom and he having died after the death of Mst. Kalsoom, Niaz Muhammad respondent is entitled to inherit the entire property and that the petitioners are to be totally excluded from inheritance.

3. Learned counsel for the petitioners argued that the findings on both these questions recorded by the learned Settlement Commissioner were not only contrary to record but were also arbitrary. He argued that the non-application of judicial mind is apparent from the fact that the factors which weighed with the learned Collector and on which he based his findings, were not adverted to by the learned Settlement Commissioner while reversing the said findings. With regard to the existence of Muhammad Yaqoob, a son from Mst. Kalsoom, it was argued that the learned Settlement Commissioner failed to notice that in earlier proceedings, Niaz Muhammad respondent failed to claim that he had a son from Mst. Kalsoom and that the plea raised being an afterthought, merited to be discarded. It was asserted that the learned Settlement Commissioner after observing that Mst. Sairan was married to Niaz Muhammad, respondent on a date later than the date of death of Muhammad Yaqoob jumped to the conclusion that Muhammad Yaqoob was the son of Mst. Kalsoom. With regard to the second question, it was urged that the reasons given by the learned Settlement Commissioner for holding that the petitioners were not the collaterals of Shams-ud-Din, were not sufficient for returning the finding as recorded, and for reversing the finding of the learned Collector.

4. Learned counsel for the contesting respondent argued that the petitioners have lost the locus standi to agitate against the impugned order as they have given the land in dispute to one Attaullah in exchange and they are in fact fighting the battle for the said Attaullah. On merits, he argued that the plea of "insufficient reasoning" hardly makes out a case of jurisdictional defect for the correction of which constitutional jurisdiction can be invoked. Learned counsel further emphasised that the reasons given by the learned Settlement Commissioner are not only based on the material available on record but are also sufficient for reversing the findings of the learned Collector.

5. I have gone through the record and have also considered the respective pleas of the parties. The petitioners claim that they are descendants of one Alia who was son of Shahu who in turn was brother of Abdullah and Wali Muhammad. Shams-ud-Din is claimed to be the son of aforesaid Wali Muhammad. The name of the father of Wali Muhammad and Abdullah, according to the petitioners, is Seebu, whereas according to the contesting respondents the name of father of Wali Muhammad and Abdullah was Albela. The pedigree-table produced on record does not give the name of the common ancestor of the persons mentioned therein. The name of father of Shams-ud-Din has also not been recorded in this pedigree-table. Alia, however, has been recorded as the name of father of Karim Bakhsh, Ibrahim and Gam Din. Another Mirdad according to the pedigree-table had two sons Nabza and Faiz Muhammad. Another name recorded is Abdullah who had two wives, namely, Mst. Hakeeman and Mst. Kabiri. From Mst. Kabiri there was a son Wali-ud-Din and on the death of Wali-ud-Din her widow Mst. Sakina, succeeded him and after her, Shams-ud-Din inherited the estate of Wali-ud-Din. Alongwith Shams-ud-Din the name of Nasar-ud-Din in the same category appears in the pedigree-table and on the death of his son Ghulam Nabi, the fact that Shams-ud-Din inherited the estate of Nasar-ud-Din also stands recorded therein. It is pertinent to state here that name of "Diwan" also appears in the pedigree-table and on the death of Diwan, Mst. Khairan his widow inherited his estate and on her demise the estate appears to have been mutated in the name of Karam Bakhsh, Ibrahim, Gam Din, Muhammad Yasin, Shams-ud-Din. Barkat Muzaffar and others. On the basis of this entry, learned counsel for the petitioners argued that as Karam Bakhsh, Ibrahim, Gam Din, and Yasin, the petitioners or their ancestors had inherited, alongwith Shams-ud-Din, the estate of Diwan, it stands established that they were collaterals of Shams-ud-Din and, as such, the finding recorded to the contrary by the learned Settlement Commissioner in the impugned order is arbitrary and unfounded. This plea was repelled by the learned Settlement Commissioner by observing that the pedigree-table does not show the Khewat number of the land which they had inherited from Diwan so they cannot take benefit of this entry. It was also noted that under the pedigree-table Khewat numbers belonging to Shams-ud-Din were distinctly shown but no such Khewat numbers had been shown under the entry concerning Diwan. The learned Settlement Commissioner also noted that the certified copy of the pedigree-table differs from the statements of the petitioners while entering mutation No. 2 and that at that time the petitioners had not mentioned the name of Diwan in the said pedigree-table. It may also pertinently be noted that the petitioners as well as their witnesses in their statements did not refer to any such Diwan as one of their relative. The fact that they had inherited the estate of any such Diwan, was also not mentioned. Learned Collector had not relied on this entry for holding that the petitioners were collaterals of Shamas-ud- Din. It is also of importance to note, as observed by the learned Settlement Commissioner, that had the petitioners been collaterals of Shams-un-Din they would have inherited the estate of Nasir-ud-Din as well as Wali-ud-Din on the demise of these two persons. As per the pedigree-table Shams-ud-Din inherited the estate of these two persons exclusively. The finding of the learned Collector on the question of relationship is based mostly on the evidence of the two witnesses produced by the petitioners. This oral evidence was considered not sufficient to connect the petitioners with Shams-ud-Din as collaterals by the learned Settlement Commissioner. I have myself gone through these statements and I find that these statements were qualitatively not sufficient to establish the claimed relationship. Both the witnesses produced by the petitioner failed to show any special means of knowledge of the existence of the relationship. One of the witnesses, namely, Safdar, belonged to a different caste and admittedly had no special connection with Yasin, etc., the petitioners. He deposed that he formally knew them as they were residents of village Kandoli. This will hardly give him special knowledge to know about the relationship or to know the ancestors of the parties. The other witness Aziz-ud-Din was though an old man, yet he made a very general statement about the relationship of the parties. Such a general statement can hardly be made basis for establishing the pedigree of the parties. In view of the above narrated factors, it cannot be said that the findings recorded by the learned Settlement Commissioner were not based on record or were arbitrary or were not recorded after due consideration of the material on record.

As regards the existence of Muhammad Yaqoob a son of Mst. KalSOOm, the most which can be urged is and which was argued before me, was that had there been a son born to Mst. Kalsoom, the contesting respondents would have taken up the said plea in the initial round of litigation. It is true that this plea was not taken at the very outset, but it was explained that at appeal stage he was informed that a son is also entitled to inherit. Be that as it may, the mere failure to take the plea at the earliest opportunity cannot be made a basis for denying the right of inheritance if otherwise it stands established that Mst. Kalsoom gave birth to a son and that son died after the death of Mst. Kalsoom. On this question, learned Settlement Commissioner observed that the existence of Muhammad Yaqoob was not disputed and that the plea was that he was not the son of Mst. Kalsoom but was the son of Mst. Sairan, the second wife of Niaz Muhammad, contesting respondent. This plea was repelled by the learned Settlement Commissioner as it stood established, on record that Mst. Sairan was married to Niaz Muhammad on 9-2-1956 whereas the son named Yaqoob expired on 6-5-1954. The date of death of Yaqoob has been recorded as 12-5-1954 in the order of the Settlement Commissioner. This date is in fact the date of reporting the death. The death certificate on record shows that the death took place on 6-5-1954 and the death was reported on 12-5-1954. Again, there is birth certificate of Muhammad Yaqoob on record which gives 13-9-1953 as the date of birth of Muhammad Yaqoob. Again, in the evidence of the petitioners nothing was stated as to Muhammad Yaqoob. The findings recorded by the learned Settlement Commissioner, as such, have to prevail over the findings of the learned Collector.

6. In view of the foregoing reasons, it is apparent that the findings of learned Settlement Commissioner are not only well-based but are also supported by sufficient reasoning. Be that as it may, interference in writ jurisdiction in the findings of a tribunal of exclusive Jurisdiction on the questions of fact can be made only when findings are entirely unjustified or arbitrary. No interference is possible merely because another view of the matter can be taken. Again, every error in recording the finding as to fact is never held to be an error of law justifying interference in constitutional jurisdiction. It is only jurisdictional error, which warrants interference in constitutional jurisdiction. As the findings recorded by the learned Settlement Commissioner are well founded on record and as the impugned order does not suffer from any jurisdiction error, no case is made out for interference in exercise of constitutional jurisdiction.

7. For the reasons given above, this petition fails and is dismissed.

No order as to costs.

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