1986 PLP 1262 (CLC)

A.R. Shaukat with Aftab Iqbal Chaudhry for Respondents Nos. 1 and

2. Date of hearing: 30th November, 1985. The dispute between the parties relates to house No. B.1 S‑2‑26 Mandi Chuharkana, District Sheikhupura. It was initially applied for by Allah Rakha respondent and one Taj Din on the basis of their possession. On the. assumption that they were unwilling to have the house transferred to them, the Deputy Settlement Commissioner brought it on the list of the houses, to be disposed of under earmarking scheme and accordingly was transferred to one Ghulsm Din under that Scheme, who surrendered his rights in favour of the petitioner. Subsequently, Ghulam Din litigated with the petitioner for cancellation of the Deed of Association but he failed.

2. It appears that at a later stage, Taj Din became aspirant for transfer of the house and preferred an appeal. But it is discernible from the Deputy Settlement Commissioner's order dated 11‑8‑1960, that he could not succeed for the reason that the house already stood transferred to Ghulam Din. This order was called in question by Allah Rakha respondent before the Additional Settlement Commissioner. There he raised the plea that his N . C . H . Form was lying undisposed of and before transferring the house to Ghulam Din he was not given any opportunity of being heard. On the other hand, the petitioner relied upon a statement attributed to the respondent, according to which he did not want the transfer of the house, in his name; as its price was beyond his means. However, the Additional Settlement Commissioner held that the thumb impression appearing on the statement, xxx said to be marked by the respondent, was forged one. The operative part of his order dated 8‑8‑1962 is as under:‑

....... I, think this association with Ahmed Din is also against law. No opportunity according to the record has been given to Allah Rakha. I, therefore, accept the appeal and remand the case to the learned Deputy Settlement Commissioner for giving full opportunity to Allah Rakha to plead his case regarding his N . C .,H . form, secondly to see the association filed by Ghulam Din and Ahmed Din and also to hold an enquiry against the said forged thumb‑impression of Allah Rakha."

3. The petitioner's revision against this order was dismissed by the learned Settlement Commissioner in limine. He then brought W.P. No. 1774/R‑62 which alongwith connected W.P.No.451/66, was, accepted on 11‑2‑1969 and it was directed that the appeal decided by the Additional Settlement Commissioner on 8‑8‑1962, would be treated as pending and disposed of afresh after notice to Ahmed Din petitioner and others. The reason which weighed with the learned Chief Justice in accepting the appeal, was, that the petitioner was necessary party to the appeal but he was not arrayed as such.

4. In pursuance of the directions of the High Court the Additional Settlement Commissioner re‑heard the appeal; upheld the petitioner's contention that the respondent made the statement expressing his disinclination to get the property transferred to him and acquiesced in the proceedings as to its disposal under the ear‑marking scheme. Accordingly by order dated 14‑4‑1970, the respondent's appeal was rejected. This rejection was challenged by him through a revision. Before the Revisional Authority he dis‑owned the thumb impression; took up the stand that he could sign and drew the attention of the Settlement Commissioner to the fact that all the relevant documents on the Settlement file, bore his signature. The thumb impression appearing on the statement, attributed to the petitioner was thus, dubbed by him as a forgery. The learned Settlement Commissioner allowed the appeal and vide his order dated 16‑3‑1971 sent back the case to the Additional Settlement Commissioner with the direction to take a decision afresh providing full opportunity to both the parties to enable them to establish their respective contentions.

5. In the meanwhile the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 was promulgated; as a result whereof the appeals pending before the Additional Settlement Commissioner stood transferred to Settlement Commissioner, to be disposed, of by him as revisions. In this view of the matter, the appeal remanded to the Additional Settlement Commissioner was lifted for adjudication before the same Settlement Commissioner (Syed Walayat Ali Bokhari) who had earlier passed the order dated 16‑3‑1971. He did not make any adjudication on merits but passed the order dated 24‑4‑1976 maintaining:‑-- "

it would be better in the interest of justice that the case is taken up by the Deputy Settlement Commissioner for a decision after hearing the parties as directed vide my order dated 16‑3‑1971, and taking a correct decision on merits. Parties to appear before the Deputy Settlement Commissioner Sheikhupura on 18‑5‑1976."

6. In compliance with this order the Deputy Settlement Commissioner took up the case, dealt with the contentions of the parties elaborately and found that the proceedings culminating in the disposal of the house by the drawing of lot, in favour of Ghulam Din, on the strength of the respondent's statement, were not attested/signed by the Deputy Settlement Commissioner; orders in this respect, were not passed after notice to the parties, respondent was never served; he retired from the Police Department after 34 years service as a Constable and could sign; that in fact the relevant papers in the Settlement file were signed by him. In view of his these findings the Deputy Settlement Commissioner declined to accept the petitioner's version that the respondent thumb marked the statement in question. In this respect, he differed with the opinion of the Finger Print Bureau and held that it was not conclusive of the proof of the identity of the thumb impression. He came to the conclusion that the transfer of the house to the petitioner's predecessor in‑interest i.e. Ghulam Din without disposal of the respondent's Form N . C. H . , was illegal. As the latter was in possession since 1952, and had filed Form N . C . H . within time, the Deputy Settlement Commissioner transferred the house in his name. His order dated 24‑6‑1976 is under challenge in this writ petition.

7. The learned counsel for the parties have been heard. Two contentions have been advanced on behalf of the petitioner. Firstly the Settlement Commissioner, in law, was bound to decide the appeal converted into revision, himself on merits and, therefore, the remand of the case of the Deputy Settlement Commissioner, by him under this order dated 24‑4‑1976 is illegal. Secondly the view taken up by the Deputy Settlement Commissioner in holding that the statement aforesaid, was, not made by the respondent and that it did not bear his thumb impression is palpably wrong; much against the weight of the material on the record and attending circumstances of the case.

8. None of these submissions call for interference with the impugned orders through judicial review. The petitioner was party to the order dated 24‑4‑1976 but he never agitated against the same, rather participated in the proceedings before the Deputy Settlement Commis sioner, commenced in pursuance thereof. The order of the Settlement Commissioner, therefore, attained finality and it is idle for the petitioner to subject it to any criticism now.

9. The question as to whether or not the disputed thumb impression is that of the respondent, is, a question of fact. The findings recorded by the D.S.C. on this issue, after hearing the parties and examining the record before him, cannot be disturbed in these proceedings. In the impugned order there is an exhaustive discussion on the respective contentions of the parties. It was incumbent upon the Settlement Authorities to have disposed of the respondent's form N.C.H. before the transfer of the house under the ear‑marking scheme. It is on the record that he was neither served nor heard and his N.C.H. form was pending when the property was transferred to Ghulam Din. It is not disputed that the respondent is in possession of the house since 1952 and has filed form N.C.H. In these circumstances the Deputy Settlement Commissioner acted in accordance with law, in transferring the house in his name. There is no jurisdictional defect or even an illegality in the impugned order.

10. There is no merit in this writ petition, it is dismissed. The parties are, however left to bear their own costs. H . B . T . Writ petition dismissed.