SHER ALI Versus MUHAMMAD SHARIF
ORDER
SAAD SAOOD JAN, J.-- This is a petition for special leave to appeal from the judgment and order dated 2-5-1982 of the Lahore High Court declaring the orders of the Additional Settlement Commissioner and Settlement Commissioner to be without lawful authority and of no legal effect.
2. The dispute between the parties relates to 31 kanals and 1 marla of agricultural land situate in village Chikri of Tehsil Narowal. It was evacuee property and was proposed for allotment in favour of the petitioner who was a claimant and a refugee from Jammu and Kashmir. The proposal was confirmed on 10-12-1962. However, on 13-11-1962, the same land, without cancellation of the proposal in favour of petitioner, was proposed and confirmed on the same day to one Sultan Haidar who then sold it to Muhammad Shafi and his brothers, respondents Nos.l to 3. It may be mentioned that Muhammad Shaft was a patwari. On 23-12-1972, the petitioner filed an appeal challenging the order of 13-11-1962 whereby the land in dispute was transferred to respondents Nos.l to 3. The appeal was heard ex-parte by the Additional Settlement Commissioner as despite being served twice the said respondents did not appear before him. By an order dated 30-4-1973 the learned Additional Settlement Commissioner accepted the appeal on the ground that after the land in dispute had been proposed in favour of the petitioner, it was no longer available for allotment to the respondents. The respondents challenged the order of the Additional Settlement Commissioner in revision before the Settlement Commissioner who also exercised the powers of the Chief Settlement Commissioner. The learned Settlement Commissioner dismissed the revision petition.
3. The main contention of the respondents before the Settlement Commissioner was that the appeal of the petitioner was barred by time and as such without condonation of delay it could not be entertained. The learned Settlement Commissioner found that there had been tampering with the record in order to show that the proposal made in favour of the petitioner was of a date subsequent to the confirmation of the land in favour of the respondents. Further, the entries in the Khasra girdawari showing the respondents to be in cultivating possession of the land were not reliable. Accordingly, he held that as the order of confirmation of the land in favour of Sultan Haidar was void ab initio, it could be challenged at any time.
4. Aggrieved by the orders of the Additional Settlement Commis sioner and the Settlement Commissioner, the respondents filed a writ petition in the High Court. A learned Single Judge in the High Court accepted the writ petition on the ground that the appeal of the petitioner before the Additional Settlement Commissioner was barred by time; the Settlement authorities had not adverted to this aspect of the case; the petitioner had not filed any application for condonation of delay nor had he offered any explanation why he had kept quiet for a period of ten years; .in the circumstances, the orders of the Settlement authorities could not be sustained.
5. In support of this petition, it is contended that the learned Single Judge was not right in holding that the question of limitation was not considered by the Settlement authorities, for, the Settlement Commissioner did examine this question and recorded his finding thereon. Thus the very basis upon which the learned Single Judge proceeded to issue the writ was non-existent.
6. The contention raised on behalf of the petitioner needs examination. Leave to appeal is granted. Security for costs in the sum of Rs.2,000. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if necessary.
M. I./S-96/S Leave granted.