1969 PLP 336 (SCMR)

Date of hearing : 14th April 1969. M. R. KHAN, J.‑The dispute giving rise to this petition for special leave to appeal relates to demarcation of two adjacent evacuee properties, namely, properties Nos. B‑111‑SI‑18 and B‑III‑SI‑18‑A situated on the Lahore‑Sheikhupura Road. For the sake of convenience, these two properties are herein after referred to as property No. 18 and property No. 18‑A, respectively. On 9‑1‑j960, the property No. 18 was transferred to the present petitioner Fahmida Kausar against her C. H. Form on the basis of allotment of her husband. It was found on subsequent inspection that the area of the property transferred to the petitioner was in excess of the area as shown in the record. Accordingly, the Deputy Settlement Commissioner, by his order, dated 17‑12‑60 enhanced the value of that property by 50 %. Property No. 18‑A, which was included in' ear‑marking list (Category `C') was transferred in favour of Mst. Farhat (respondent No. 1) on 19‑4‑1960 in association with her sister Mst. Rahat (respondent No. 2) and a P. T. O. was, accordingly, issued on 2‑5‑

60. The respondents claimed that the property transferred to them measured an area of 1 kanal 15 marlas. As however, they were not getting that quantity of land, they made an application for demarcation of their property. On that application, the Deputy Settlement Commissioner made an order on 31‑5‑1961 demarcating the property. Being aggrieved ‑by that order, the respondent made a revisional application before the Settlement Commissioner in which they called in question the aforesaid orders, dated 9‑1‑60, 17‑12‑60 and 31‑5‑

61. On this revisional application, the Settlement Commissioner passed the following order on 6‑9‑1962 :‑ "The petitioners are justified in their claim that no part of property No. B‑111‑SI‑18‑A which was originally transferred to Mst. Farhat with whom her sister Mst. Rahat has since entered into association should be effected by any subsequent order. 1, therefore, order that the property bearing No. B‑III‑SI 18‑A according to the Taxation records be retained by Mst. Farhat and Rahat and that nothing contained in the above‑mentioned orders dated 17‑12‑60 and 31‑5‑61 shall affect the transfer of any part of this property (No. B‑III‑SI‑18‑A) to the petitioners. Both the parties shall be charged the transfer prices of the properties transferred in their favour respectively in accordance with the relevant provisions of law and the instruction. It is for the parties to obtain demarcation of properties transferred to them respectively, if required." Both the parties remained satisfied with the above order. In pursuance of that order, the Deputy Settlement Commissioner again demarcated the property No. 18‑A by his order dated 17‑11‑1962, which runs thus:‑ "I have visited the spot in the presence of the parties on the request of Ch. Nasarullah Khan. As far I could follow the orders of the learned Settlement and Rehabilitation Commissioner I have given demarcation to the parties. The demarcating line would be the wall which already exists between the two properties." The respondents preferred an appeal against that order of demarcation mainly on the ground that the demarcation was not made in accordance with the Settlement Commissioner's final order, dated 6‑9‑1962, which is binding on both the parties. The appeal was dismissed and the respondents' revisional application against the appellate order met the same fate. Thereupon the respondents made Writ Petition No. 826‑R of 1964 in the High Court of West Pakistan, Lahore, challenging the orders of the Settlement Authorities as regards demarcation of their property No. 18‑A. A Division Bench of the High Court allowed the writ petition on the finding that the properties Nos. l8 and 18‑A, have not been demarcated according to the Taxation records as directed by the Settlement Commissioner in his order, dated 6‑9‑1962, which is final and binding on the parties. Accordingly, the learned Judges quashed the orders of demarcation passed by the Settlement Authorities and remanded the case for fresh demarcation of the properties on the basis of the Taxation records. The order of emand reads thus:‑ "The case will now go back to the Settlement Commissioner to demarcate the properties on the basis of the Taxation record giving 1 kanal 15 marlas each to both the parties and in accordance with the Taxation record and also in compli ance with the orders of the Settlement Commissioner and in the light of the observations made above." No exception can be taken to the order remanding the case for fresh demarcation of the properties on the basis of the Taxation records, because the demarcation, as it clearly appears from the Deputy Settlement Commissioner's order, dated 17‑11‑62, was made only on the basis of an existing wall and not on the basis of Taxation records as per order of the Settlement Commissioner, dated 6‑9‑

62. Learned counsel for the petitioner, however, submits that certain observations made by the learned Judges in their judgment will prejudice his client when the properties are demarcated afresh in pursuance of that judgment. The learned Judges have firstly observed that the area of property No. 18‑A is 1 kanal 15 marlas. I heir next observation is that there stands a patrol pump in a part of that property. The determination of the exact area of property No. 18‑A and the exact location of the patrol pump is dependent upon the demarcation of that property on the basis of the Taxation records. Hence, the Settlement Authorities need not consider those observations of the learned Judges as binding on them. The next submission of the learned counsel is that the area of the property transferred to the respondents cannot exceed three times the plinth area of that property. This point cannot be allowed to be agitated at this stage as the same was not raised before the Settlement Commissioner whose final order, dated 6‑9‑62 is binding on both the parties. The petition is dismissed. Leave refused.