NIAZ MUHAMMAD MANN Versus MUHAMMAD AHMAD

1. SHAFIUR RAHMAN, J. ‑‑Leave to appeal was granted to examine, whether the Settlement Authorities on the facts and the case before them were required to strictly follow the provisions of the Evidence Act and whether the pre‑emptor acquired right to the pre‑empted property without getting the decree executed and without the vendee withdrawing the money deposited for his benefit.

2. The parties to the litigation are refugee right holders having migrated from village Sathian Tehsil and District Hoshiarpur. Each received the verified claim for the property left there. The respondent Sh. Muhammad Ahmad (deceased) filed an application before the Rehabilitation and Settlement Authorities availing of the provisions of para. 52 of the Rehabilitation Scheme Part II. This paragraph was introduced on 10th September, 1951 enabling persons holding decrees of civil Courts to move an application for getting their entitlement as reflected in the decrees but not incorporated in the revenue record for being recognized and given effect to. This application was filed in 1958. The claim was that Dr. Niaz Muhammad now the appellant before us, had purchased one third share out of 96 Kanals 8 Marlas from a co‑sharer of the respondent Muhammad Ahmad which sale was successfully pre‑empted by him and the decretal amount deposited in the Civil Court. However, the decree was not incorporated in the Special Jamabandi received from India and hence the entitlement of Sh. Muhammad Ahmad was not established thereunder. It appears that an inquiry was undertaken and finalized by the Additional Settlement Commissioner in 1,960 but then the papers were misplaced. It was when Sh. Muhammad Ahmad applied for being delivered the result of his application that the record was reconstructed and once again the matter was looked into. The Additional Settlement Commissioner recorded the following finding and the operative order:‑

3. "As the original file had been lost, the difficulties of the petitioner in producing direct evidence must be appreciated. The fact that the salient features of the transaction of the sale, institution of the pre‑emption suit, the decree in favour of the petitioner depositing the decretal amount in the treasury by the petitioner, all put together substantiate the case of the petitioner. The remedy provided by paragraph 52 was of a special nature, and it was to my mind meant to cover cases of hardship of the type that the case under consideration is. It is a pity that the petitioner has so far remained deprived of the benefit which his successful litigation would have conferred on him. The documentary evidence put on record overwhelmingly supports the contention of the petitioner. I, therefore, allow the application and order that the decree, dated 10‑4‑1946 mentioned above should be implemented according to existing instructions and the claim of the petitioner verified accordingly. A copy of this order should be sent to the officer on Special Duty Central Record Office, Lahore, for necessary action."

4. An appeal was thereafter taken to the Settlement Commissioner by Dr. Niaz Muhammad. It was allowed by observing as follows:‑

5. "As regards the discrepancies in the area and description of the Land has submitted an affidavit stating that as consolidation of holding operations had taken place in the village, therefore, the area and Khasra number had been changed. I am afraid this is not valid explanation as the consolidation operations cannot increase the area by 16 Kanals and 11 Marlas as is the difference in the present case. He has not been able to meet the objection in regard to the admissibility of the copy of the Civil Court order. Moreover, a perusal of the record shows that the learned Additional Rehabilitation Commissioner had overlooked a very important aspect of the case in admitting the claim of the respondent over the land in dispute. According to his own showing the decree obtained by the respondent was in pre‑emption suit and he did not prove that it was got executed by him and possession 'of the pre‑empted land was ever delivered to him. Thus, unless this was done this decree was of no effect so far as the right of the petitioner to retain possession of the land was concerned. There is also no satisfac tory proof on record that the sale price deposited by the respondent with the Civil Court was ever received ,)v the petitioner.

6. In view of the above discussion, I hold that there was no justification for the admission of the respondent over the land in dispute and accept the revision petition, set aside the impugned order and direct that it should not be given effect to in the records."

7. A Constitutional petition was thereupon filed by the respondent Sh. Muhammad Ahmad. The learned Judge in the High Court held that notwithstanding deletion of paragraph 52 of Part‑II of the Rehabili tation Scheme in the year 1959, the relief could still be granted and distinguished the decision of this Court in Allah Ditta v. Haji Jan Muhammad and 3 others PLD 1974 S C 113. It was also held on the strength of Order XX, Rule 14, C.P.C. that execution of the pre emption decree and the withdrawal of the money deposited by the vendee was not at all necessary or relevant for the purposes of vesting of the title in the pre‑empted sale and the provisions of the Evidence Act were not strictly applicable to the proceedings before the Settlement Authorities. After recording these findings, the learned Judge ordered that the case shall go back to the Settlement Authorities to consider and decide afresh after hearing the parties and providing them with adequate opportunity to disclose their case.

8. Mr. Muhammad Naseem, Advocate, the learned counsel for the appellants, has contended before us that with the deletion of paragraph 52 of the Rehabilitation Settlement Scheme in 1959 even the pending proceedings on the application of the respondent became infructuous and no relief could be afforded to him. He has relied on the decisions of this Court in Allah Ditta v. Haji Jan Muhammad and 3 others PLD 1974 S C 113 and Settlement Authority through the Chief Settlement Commissioner, Lahore and another v. Mst. Akhtar Sultana P L D 1976 S ‑C 410. The other submission of the learned counsel for the appellant is that the proceedings before the Settlement Authorities are judicial in nature and the provisions of Evidence Act fully and strictly apply to the proceedings and on that view of the matter the decree of the Civil Court which was not certified in the manner prescribed under section 78(6) of the Evidence Act could not be admitted in evidence at all. Reliance for this proposition has been placed on decisions in Mst. Bhano and another v. Mian A.M. Saeed and others 1969 S C M R 299, M/s. Bengal Friends & Co. Dacca v. M/s. Gour Benode Saha & Co. Calcutta and another P L D 1969 S C 477, Abdul Hamid v. Malik Karam Dad, P.C.S., Election Tribunal Rawalpindi and 2 others P L D 1966 (W.P.) Lah. 16, Saeed Ahmad v . Mahmood Ahmad P L D 1968 Lah. 520 Des Dewan v . Major Nazir Beg and others P L D 1970 Lah. 790. Finally it is contended by the learned counsel for the appellants that there was no evidence at all that the decree, if at all any, in favour of the respondent, had been executed and the money deposited for his benefit was withdrawn. Without these acts of perfecting the decree the title could not vest in the respondent. The learned counsel has also drawn our attention to the inconsistency in the evidence with regard to the area sold, the area sought to be pre‑empted and the particulars of the property otherwise provided by the respondent.

9. Mr. Bashir Ahmad Ansari, Advocate, the learned counsel for the contesting respondent without disputing the generality of the submission of the learned counsel for the appellants, so far as it relates to the provisions of the Evidence Act, contended that it is established law that the mode of proof of public documents mentioned in Section 78 of the Evidence Act is permissive and that the Court or authorities are not precluded from having recourse to other modes of proof. On that basis the Settlement Authorities could have looked to the original challan showing the deposit of the decretal amount pursuant to the decretal amount and connecting it with the decree which was not certified in the manner envisaged by clause (6) of section 78. The learned counsel for the respondent has drawn our attention to para. 29 of the Rehabilitation Settlement Scheme to contend that such a power always existed with the appropriate authority to recognize such claims and it was independent of paragraph 52. The learned counsel for the respondent has also drawn our attention to Order XX, Rule 14, C.P.C. to contend that the title comes to vest in the pre‑emptor with the deposit of decretal amount and it is not dependent on further execution of the decree or withdrawal of the money deposited by the vendee.

10. Para. 29 of the Rehabilitation Settlement Scheme provides as hereunder: ‑

11. "29. Right to be given in accordance with entries in Jamabandis,‑Right under the Rehabilitation Settlement Scheme should given to a claimant in accordance with the entries in the special Jamabandis received from the prescribed area of India. Classification of evacuee land should be taken into account according to the entries in the special Jamabandis prepared for exchange with India and subsequent variations in the classification of soil should be ignored. If any hardship is caused by the application of this rule in individual cases a reference', should be made to the Rehabilitation Commissioner, West‑ Pakistan, (Reference former Punjab Government Memorandum No.8553‑R(L), dated 2nd September, 1950)."

12. Paragraph 52 was introduced in the Scheme in 1951 and deleted in 1959. It was in the words that follow:‑

13. "52. The Additional Rehabilitation Commissioner (Lands) and Additional Secretary Resettlement and Colonies Department will deal with such applications for claims to land allotment in the Punjab as are based on registered deeds and decrees of Civil Courts, effect to which had not been given in the revenue records of the prescribed territory in India, due to the perturbed conditions prevailing in those areas before the petition. Other refugee claimants with similar claims may, if they so desire, file their petitions with the Additional Rehabilitation Commissioner (Lands) and Additional Secretary Resettlement and Colonies Department (Reference endorsement No.7195‑R(L), dated the 10th September, 1951)."

14. The substantive power remaining intact and the procedural permissive provisions having been deleted, an application preferred by the respondent would not become infructuous by the deletion of the procedural provision relating to the decrees of the Civil Courts. The High Court has accordingly held that the power to afford relief in individual hardship cases remained intact and as the application of the respondent was already pending it could be finalized and can even now be finalized on merits. The cases cited by the learned counsel for the appellants are not relevant because in those cases the very power of the authority had been taken away.

15. In holding inquiry into hardship cases as ‑provided in para. 29 of the Rehabilitation Settlement; Scheme or under the deleted paragraph 52 of the Rehabilitation Settlement Scheme, the settlement authorities are not engaged in a judicial function strictly speaking and as such the approach of the Additional Settlement Commissioner in looking to the totality of the material before the authority and looking to the cumulative effect, was the correct approach to the problem. The learned counsel for the appellants has referred to a number of decisions in support of the contention but has omitted to take note of the decision in Muzaffar Hussain and 3 others v. Mst. Ghulam Fatima and 20 others (P L D 1976 Lah.1226) where such a question directly arose and was dealt with. The very exercise of looking for and identifying 'the exceptional hardship cases is not by its very nature a judicial function and hence the strict rule of law of evidence would not apply to an inquiry being conducted by the Rehabilitation Authority under paragraph 29 or paragraph 52 of the Rehabili tation Settlement Scheme. Besides in the proceedings before the Set tlement Authorities there were two different documents, one was a certified decree of the civil Court on the pre‑emption claim and the other was the original challan of the deposit of the decretal amount in court. One of the documents was the original, duly stamped, having the signatures of the authorities concerned and the other was the certified copy officially given to the party. These could be taken into consideration by the authorities in coming to a conclusion with regard to the claim advanced by the respondent. The view taken by the learned Judge in the High Court, on the facts of the case and the nature of the inquiry that was being conducted would appear to) be correct.

16. Relevant portion of Order XX, rule 14, C.P.C., reads as follows:‑

17. "14. Decree in pre‑emption suit.‑‑(1) Where the Court decrees a claim to pre emption in respect of a particular sale of property and the purchase‑money has not been paid into Court, the decree shall‑‑.

(a) specify a day on or before which the purchase‑money shall be so paid, and

18. (b)direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase‑money and the costs (if any) are not so paid, the suit shall be dismissed with costs.

19. It is specifically provided in this Rule that the title in the property shall be deemed to have accrued from the date of such payment. So the execution of the decree and the withdrawal of the money or its payment to the vendee is not relevant or of consequence for them vesting of the title in the pre‑emptor.

20. In view of the foregoing discussion, the appeal is found to be without merit and is dismissed with no order as to costs.

21. M.Y.H./N‑58/S Appeal dismissed.