1988 PLP 1013 (SCMR)

MUHAMMAD HALEEM, C.J,‑‑The dispute in this appeal relates to the transfer of the residential premises at the back of the shop of respondent Bashir Ahmad now represented by his legal representatives 1 to 10, comprised in the composite building No.27, Ward No.3, Faisalabad. This composite building consisted of a shop, a Chaubara on the top of it and the disputed premises. The shop was again divided into three units. One was in possession of Bashir Ahmad, its area was 1/4th of the total area of the shop. Another 1/4th area of the shop in the occupation of Muhammad Ashraf, and the remaining half in possession of Muhammad Saeed. One Mst. Begum Bibi was in occupation of the disputed premises who being a local was eliminated from the dispute although she had filed an N . C . H . Form and is no longer in the picture. The appellant filed a C. H. Form for the transfer of the entire building as he claimed to be its prior allottee. Muhammad Bashir filed a C.S. Form for the portion of the shop in his possession. Similarly the father of Muhammad Ashraf filed a C.S. Form for the transfer of the property in occupation of Muhammad Ashraf who is a non‑claimant. Muhammad Saeed filed an N . C . H . Form for the transfer of the portion in his possession. The Deputy Settlement Commissioner by his order dated 23‑11‑1959 held that the shop can be vertically divided, and, accordingly, transferred the entire shop and the Chaubara on the top of it to the appellant who was the senior claimant /allottee, and the residential portion at the back of the shop to Bashir Ahmed and rejected the forms of the father of Muhammad Ashraf and Muhammad Saeed. Against this order three appeals were filed, one by Bashir Ahmad and the other two by Muhammad Ashraf and Muhammad Saeed. The appellant, however, did not feel aggrieved by the transfer of the residential portion at the `back of the shop of Bashir Ahmad to him, and, therefore, did not contest the order. The Additional Settlement Commissioner after inspecting the spot and hearing the parties dismissed the appeals on 1‑1‑1960. Against this order three revisions were filed by the aggrieved persons before the Settlement Commissioner who by his order dated 26‑10‑1960 maintained the division of the property and transferred to Bashir Ahmad the portion of the shop in his possession and one room at the back of it and to Muhammad Ashraf he transferred the portion of the shop in his possession. Muhammad Saeed was, however, held to be a local and his shop was ordered to be auctioned. Against this order not only the appellant, but Muhammad Saeed, Muhammad Ashraf and Bashir Ahmad filed second revisions before the Chief Settlement Commission which were heard by his delegatee who by order dated 11‑8‑1961 dismissed the revisions. Against this order Muhammad Saeed filed Writ Petition No.1346‑R of 1961 and so did the appellant (Writ Petition No.266‑R of 1963). Bashir Ahmad accepted the order of the Settlement Commissioner dated 26‑10‑1960 which was confirmed qua him in the revisions filed thereafter, Mr. A.R. Sheikh, who was then an Advocate, filed the petition of the appellant. The writ petitions were disposed of by a common judgment dated 3‑11‑1965. The writ petition of the appellant was dismissed while that of Muhammad Saeed was allowed and the ease was remanded for the determination of his entitlement as he was held to be a non‑claimant‑displaced person. Against this order, the appellant filed Letters Patent Appeal No.316 of 1965 which was dismissed by the Letters Patent Bench comprised of Mr. Justice Mushtaq Hussain and Mr. Justice A.R. Sheikh, Mr. Justice A.R. Sheikh was by that time elevated to the Bench. The appeal was dismissed in limine on 5‑4‑1966. Mr. Justice Gul Muhammad Khan, who was then Advocate, appeared for the appellant. On remand the Deputy Settlement Commissioner took up the case. It was then that the appellant filed a miscellaneous application on 11‑7‑1966 for the transfer of the residential portion in possession of Begum Bibi apart from the one room transferred to Bashir Ahmad on the premise that it was still undisposed of. The Deputy Settlement Commissioner by order dated 15‑9‑1966 transferred it to the appellant. Against this order both the respondent and the appellant filed appeals which were dismissed on 19‑12‑1967 by the Additional Settlement Commissioner. The grievance of the appellant was that he was trans ferred the back portion less the room transferred to Bashir Ahmad which was part and parcel of the residential portion. Against this order two revisions were preferred and the Settlement Commissioner by order dated 24‑4‑1968 allowed the appellant's claim and rejected that of the respondent. The room which was transferred to Bashir Ahmed was included in the residential premises. The respondent thereupon challenged this order through Writ Petition No.724‑R of 1968 which was allowed by Mr. Justice Gul Muhammad Khan who held him entitled to the entire residential portion including the room on the ground that the appellant did not challenge that order of transfer of the Deputy Settlement Commissioner dated 23‑11‑1959. Leave to appeal was granted to consider whether the High Court was competent to interfere directly or indirectly with the Settlement Commissioner's order dated 26‑10‑1960, and if the answer is in the negative, the further question would be that of the directions to be given for the disposal of the residential premises behind the shop other than the room transferred to the deceased‑respondent by the said order. The learned counsel for the appellant raised two contentions. Firstly, that the judgment in Writ Petition No.724-R of 1968 is a nullity as Mr. Justice Gul Muhammad Khan had appeared as a counsel for the appellant in Letters Patent Appeal No.316 of 1965; and, secondly, that even if the transfer of the residential portion of Begum Bibi to the appellant was not proper still Bashir Ahmed had no locus standi to challenge it as he was neither an applicant for its transfer nor did he impugn the order dated 26‑10‑1960 by which he was only transferred a room of this residential premises. Significantly it may be stated that at no stage of the litigation, the division of the property was disputed and interfered with. The order of the Deputy Settlement Commissioner and the Settlement Commissioner are unequivocal though instead of the premises only one room is mentioned in it. The entire dispute was in regard to the word "one room" used by the Settlement Commissioner in his order dated 26‑10‑1960. But this was merely an error as the property stood divided into four units. It comprised of the Chaubara on the top of the shop of Bashir Ahmad, the shop of Bashir Ahmad and the residential portion on its back in the occupation of Begum Bibi and the other two portions of the shop which had been divided into three units. Obviously, what he meant to say was that the residential portion at the back of the shop. In this connection it would be pertinent to refer to the order of the High Court dated 3‑11‑1965 which has assumed finality. The case of the appellant before the High Court was that the composite building was a one unit and being the senior most allottee he should be transferred the entire building, and, therefore, the order of the Deputy Settlement Commissioner should not have been interfered with by the Settlement Commissioner in revision. The High Court rejected his, contention and upheld the division of the composite building as held by the Settlement Commissioner in his order dated 26‑10‑1960. The case was only remanded for the disposal of the shop qua Muhammad Saeed. This judgment, accordingly, was conclusive and the Deputy Settlement Commissioner had no jurisdiction to interfere with this division of the property which was final and conclusive qua the claim of the appellant. Additionally, if the portion in the occupation of Begum Bibi was a separate unit then the appellant could not have been entitled to more than one house. In this view of the matter, it could then only be auctioned but as already held that it was not available property, the question of its disposal did not arise. In view of our conclusion neither the order granting leave nor the contentions raised by the learned counsel for the appellant require consideration. The appeal, accordingly, has no merit and is dismissed but with no order as to costs. M.Y.H./T-22/S Appeal dismissed.