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Civil Appeal No. K‑122 of 1980, decided on 21st January, 1986.

(On appeal from judgment and order, dated 28‑10‑1978 of High Court of Sind at Karachi in Constitutional Petition No. 73 of 1972).

‑‑‑Art. 185(3)‑‑Leave to appeal granted to consider whether earlier judgment of Supreme Court remanding case to Additional Settlement Commissioner was misread by High Court.

‑‑‑Ss. 10 & 11‑‑Settlement Scheme No. I‑‑Settlement Scheme No. VI‑ Transfer of property‑‑Appellant a local and in possession of property since many years‑‑Property in dispute transferred to him under Settlement Scheme No.I and Settlement Scheme No. VI on ground that he had rebuilt property and a charge had been created by him, subject to confirmation upon verification of area and nature of construction‑ Notice was issued to appellant but he failed to produce evidence, his 'P' Form was rejected and he was informed by a notice when property was put to unrestricted auction which was confirmed in favour of respondent‑‑Appellant applying for charge money as well as filing appeal against auction which was ultimately accepted by Settlement Commissioner who remanded case for disposal of appeal in accordance with law after adducing evidence on question of limitation and fraud Appellant contending non‑service of said notices but failing to establish it before Settlement Authorities‑‑Appeal filed before Additional Settlement Commissioner against auction barred by limitation and so also, that on date of auction it was available property for disposal as Form 'P' had been rejected, Appellant having no entitlement under Settlement Scheme‑‑Appellant's only claim for expenditure on reconstruction of building also stood rejected as he failed to establish same‑‑Appeal rejected as having no force, in circumstances.

Akhtar Mahmood, Advocate‑on‑Record for the Appellant.

Maroof Ali Khan, Advocate‑on‑Record for the Respondents Nos. 1 to 3.

Nemo for Respondent No.4.

Date of hearing: 21st January, 1986.

This appeal, by leave, arises from the judgment of the High Court of Sind, dated 28th of October, 1978, by which Constitutional Petition No. 73 of 1972, was dismissed.

Leave to appeal was granted to consider whether the earlier judgment of this Court remanding the case to the Additional Settlement Commissioner was misread by the High Court. .

The dispute herein relates to a composite property bearing No. B‑189 situate in Ward 'B' of Sukkur City. It comprises a shop and residential premises over it. The appellant, who is a local, claimed to be in possession of it since many years and also to have repaired or rebuilt it when it was damaged by a collapse of the adjoining building with the approval of the Deputy Custodian, and, accordingly, a charge was created on the property by the Deputy Custodian qua the expenditure amounting to Rs.9,666/2/‑ incurred by him by order, dated 20th of March, 1958.

On the commencement of the Settlement operations, the appellant filed an LH Form for its transfer but the Assistant Settlement Commissioner by order, dated 14th of October, 1959 rejected it on the ground that he was not eligible to seek its transfer as the property was a "shop". He was further informed to apply for its transfer in the prescribed form if and when applications were invited from 11non allottees." Subsequently, the appellant submitted a 'P' Form on 30th of November, 1959, for the transfer of the entire premises under para. 21 of the Settlement Scheme No.I read with Settlement Scheme No. VI on the ground that he had rebuilt the property and a charge had been created. The Deputy Settlement Commissioner, by an order, dated 10th of January, 1960, transferred the property and directed Appendix IX and P.T.O. to issue subject to the confirmation upon verification of the area and the nature of construction. It transpires that a notice No. DSC‑M‑739 dated, 9th of February, 1960 was issued to the appellant, but as he failed to produce evidence his 'P' Form was rejected and he was informed accordingly by notice, dated 25th of July, 1960. Thereupon the property was put to unrestricted auction and as no one gave an acceptable bid it was cancelled and again put to reauction on 17th of October, 1960, on which date the respondents 1 to 3 gave the highest bid of Rs.14,000 as against the reserve price of Rs.26,000. The auction was confirmed on 20th of March, 1960 and a P . T . D . was issued in favour of these respondents on 18th of February, 1962. It may here be recalled that after the rejection of 'P' Form the appellant applied in November, 1960 for the payment of charge money on the ground that the property had been disposed of by auction. Nonetheless he filed an appeal against the auction in favour of the contesting respondents on 26th of September, 1962, which was allowed by order, dated 30th of April, 1963. These respondents went in revision which was dismissed on 19th of December, 1964.

Thereupon they challenged this order in the High Court through a writ petition which was also dismissed. However, they succeeded in the appeal before this Court and the case was remanded to the Additional Settlement Commissioner "for the disposal of the appeal in accordance with law after giving the parties adequate opportunity of representing their respective cases adducing evidence both on the question of limitation as well as the question of fraud." Here it may be of interest to mention that this Court while being referred to the application filed in November, 1960, for the re‑payment of the charge money held:

"That this piece of evidence was not taken into account by the Additional Settlement Commissioner even though it had a material bearing on the question of fraud and in regard to the auction held."

On remand, the Additional Settlement Commissioner by his order, dated 11th of February, 1971, allowed the appeal holding:

"I, therefore, hold that the impugned order rejecting the 'P' Form of the appellant was passed without complying with the principle of natural justice and as such is illegal and void. There is no documentary or other evidence to prove that the information of passage of the impugned order was received by the appellant. The Advocate of the respondent cites the application, dated November, 1960 in proof of the appellant's having knowledge of the impugned order but the signature on the application drastically differ from that of the appellant appended on the 'P' Form and the contention remained unproved. The appeal is therefore, within time. The auction, dated 17‑10‑1960 without judicially deciding the case of 'P' Form of the appellant, becomes infructuous and is hereby cancelled.

In the result, the 'P' Form of the appellant for the transfer of the property in dispute is still pending before the Deputy Settlement Commissioner, Sukkur, which is to be disposed of according to law by him."

This order was however, reversed in revision by the Settlement Commissioner on 2nd of February, 1972. In these proceedings two points received attention. The first was the question of limitation in filing the appeal against the auction and the second was of fraud alleged to have been committed by the contesting respondents. The Settlement Commissioner held that in view of the application having been filed by the appellant in November, 1960 for the payment of the charge money it could not be in doubt that the appellant was aware of the auction held in favour of the contesting respondents. As to the finding of the Additional Settlement Commissioner that this application was not filed by the appellant, the Settlement Commissioner reversed it on the basis of the material available on record and on the observation of this Court while remanding the appeal to the Additional Settlement Commissioner on the question of fraud at which point of time no objection was taken as to its genuineness. On the second point, the Settlement Commissioner agreed with the Additional Settlement Commissioner that there was no evidence of fraud. Additionally, the Settlement Commissioner also concluded that there was no material on record to show that para. 21 of the Settlement Scheme No. l was applicable to the disputed property, and, accordingly, it was liable to be disposed of in accordance with the instructions of the Chief Settlement Commissioner, dated 3rd of February, 1960. In this connection he held:

"At best, it is proved by documents produced by the respondent that he had repaired the building. This instruction applied only in such cases where the building of a house or shop was either incomplete or uninhabitable on 14‑8‑1947 or was rendered as such subsequent. This was not the case of the respondent that the property in question had become uninhabitable. In view of this matter, the property was not at all transferable on 'P' Form. Application in 'P' Form (Settlement Scheme No. VI) can be filed for the transfer of only, such property which had been completely destroyed and had not been constructed thereafter. The building which has been repaired by the occupants as in the present case, are not transferable as vacant building site under said instruction."

Accordingly, in his view, neither it was transferable to the appellant on 'P' Form nor was the appeal within time and as such was not entertain-able as it was not accompanied by an application for condonation of delay under section 5 of the Limitation Act. The plea of fraud having been altogether Settlement Commissioner held that the P. T . D. issued to the contesting respondents could not be :cancelled.

The appellant challenged this order in the abovenamed constitution petition, but again did not succeed. Before the High Court, it was contended on behalf of the appellant that notice, dated 9th of February, 1960, was not served on the appellant for the production of documentary evidence to establish the expenditure incurred on rebuilding the property, and, therefore, the order, dated 21st of July, 1960, canceling the Form was illegal, and for that reason the property could not have been auctioned as his 'P' Form was not finally disposed of. The next limb of the argument was that the delay in filing the appeal would not also come in the way as he was not aware of the disposal of the property: and as to the filing of the application for the payment of charge money it was contended that the finding of the Settlement Commissioner did not have any support from the judgment of the Supreme Court remanding the case to the Additional Settlement Commissioner. The High Court upon an examination of the contentions, held, after referring to the earlier judgment of this Court, firstly, as under‑.‑

"The above passage makes it‑ abundantly clear that the fact regarding filing of application for refund by the petitioner in November, 1960 had gone unchallenged and was adverted to by the Honourable Supreme Court almost as a proved fact. The only doubt expressed was as to the auction referred to in the application. In the circumstances no exception can be taken to the finding of the learned Settlement Commissioner in this behalf."

Secondly, that the Settlement Commissioner found as a fact that the petitioner had knowledge of the auction, and, therefore, until the delay was condoned for sufficient cause, his appeal was time‑barred. Lastly, on the question of fraud, the High Court held that both the Additional Settlement Commissioner and the Settlement Commissioner concurrently held that there was no evidence to establish that the auction was fraudulently held.

Again the learned counsel for the appellant vehemently supported the order of the Additional Settlement Commissioner, but the High Court has examined the reasons in detail given by the Settlement Commissioner for not upholding it on the questions formulated above, and we see no reason to disturb the conclusion on facts arrived at by the Settlement Commissioner. It is too late in the day to contend that the notices, dated 29th of February, 1960 and 25th of July, 1960 were not served on the appellant, eminently when there is no evidence on record to disprove it. In the ordinary course it is presumed that the judicial and officials acts have been regularly performed in the absence of any evidence to the contrary. We do not see any reason why we should depart from this rule when the appellant has not been able to establish non‑service on him before the Settlement Authorities. This being so, the appeal filed before the Additional Settlement Commissioner against the auction was barred by limitation and so also, that on the date of the auction it was available property for disposal as the 'P Form had been rejected. Apparently 'P' Form was filed as the disputed property was not transferable under para. 21 of the Settlement Scheme No. I. It was later that memorandum, dated 3rd February, 1960 was promulgated. The Form when submitted could not refer to the "Building Site" under Settlement Scheme No. VI as according to its definition in para.l (2)(b) it only referred to the property which had been completely destroyed by floods, fire, incendiarism or any natural calamity, whether or not any construction had subsequently been raised on it. Such was not the case here, and therefore, the appellant had no entitlement under this' Scheme. If, at all, he had any claim, that could be only under clause (6) of the memorandum, dated 3rd of February, 1960, but that too was rejected as he had failed to establish the expenditure met on the reconstruction of the building.

For all these reasons the appeal has no substance and is dismissed with costs.

M.Y.H. Appeal dismissed.

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