1986 PLP 2382 (MLD)

Rana Muhammad Bashir Khan for Petitioners. Shahzad Jahangir for Respondent No.1. Munir Ahmad Bhatti for Respondent No.2. Dates of hearing: 2nd and 3rd June, 1986. This case has a long and chequered history gathered from various documents placed on the record of this petition as well as, earlier Writ Petition No.232‑R of 1976. Bungalow bearing property No.S.62‑R‑7, Inder Nagar, Lahore was transferred to the respondent No.‑2 on 2‑1‑1960. She agitated the matter through a Miscellaneous Application for some servant quarters. The Additional Settlement Commissioner, vide his order, dated 2-11‑1960 declined the request and directed the Deputy Settlement Commissioner to check up the property which has been transferred through earmarking and which is No.60‑S‑11 (which incidentally has been transferred to one Muhammad Ishaque) "to ensure that the open plot next door has not been transferred alongwith this". The dispute is about this open plot.

2. This plot was put up for public auction at S.No.39 item No.6 bearing Khasra Nos.907‑min and 905 min Plot No.11. Inder Nagar Scheme to be held from 3‑5‑1966. It was auctioned in favour of the predecessor?-in‑interest of the petitioners. Mian Abdur Rehman on 7‑5‑1966. The auction was confirmed by Mr. M.A.A. Wasty, Additional Settlement Commissioner, vide order, dated 31‑5‑1966. After payment of the transfer price and the dues, Mian Abdur Rehman was issued Y. T. D. on 18‑1‑1967.

3. The plot in question was again put for public auction to be held on 23‑6‑76 at S.No.297 item No.15. It was then purchased by one Roshan Ali on 28‑5‑1971. Respondent No.2 filed an application before the Deputy Settlement Commissioner that the plot was part of her bungalow. The application was rejected on 19‑12‑1973. Her revision petition ''was, however, accepted and the case remanded vide order, dated 19-16‑1975. In remand proceeding, it was pointed out that the auction in favour of Roshan Ali had not been confirmed. However, the Deputy Settlement Commissioner observed that the respondent No.2 had no right to the plot in question and that the auction in favour of Roshan Ali be got confirmed. This is vide order, dated 14‑10‑1975.The auction was then confirmed on 19‑12‑1975. The respondent No.2 in the meanwhile has challenged the auction in favour of Roshan Ali through Writ Petition No.23‑R of 1976 filed on 11‑2‑1976.

4. In pursuance of the P.T.D. issued in favour of the petitioners predecessor‑in‑interest on 18‑1‑1967, mutation No.301 was sanctioned by the revenue authorities on 9‑1‑1973. The respondent No.2 filed a civil suit against the petitioners for permanent injunction. The civil suit was dismissed on 4‑11‑1974. She filed an appeal which too was dismissed on 4‑1‑1975. The petitioners coming to know of the respondent No.2 having filed Writ Petition No.23‑R of 1976 claiming the plot filed Civil Miscellaneous No. 5 of 1976 seeking to be impleaded as a party. The application was allowed subject to just exceptions on 22‑9‑1976. The auction having been, in the meanwhile confirmed in favour of Roshan Ali on 19‑12‑1976, the respondent No.2 who had filed aforementioned writ petition against Roshan Ali, entered into a compromise with him and withdrew the writ petition in the absence of the petitioner on 15‑11‑1977.

5. The petitioners filed a civil suit for permanent injunction against the respondent No.2 and two others saying that their father was transferred the plot in question vide P.T.D., dated 18‑1‑1967. It was contested on the ground that "the plaintiffs have already sold out the plot in dispute to some person and as such the plaintiffs have got no right to institute the suit. The learned trial Court observed that "no document has been placed upon record to prove this allegation, on the other hand the plaintiffs still insist to be in possession of the plot in dispute being the legal owners. Despite all these facts, the defendants have categorically admitted that they had been contesting for the ownership and possession of the plot in dispute in the past with one Roshan Din, and the matter went upto the learned High Court in para.8 of the written statement, the defendants have stated in clear words that the answering defendants had nothing to do with the plot in question, but they have not denied the allegation made in para. No.6 of the plaint regarding the dismantling of their own boundary wall. In view of the above averments made in para. No.6 and para. No. 8 of preliminary objections of the written statements no further probe or inquiry is required and the suit is decreed in favour of the plaintiffs against the defendants permanently restraining from encroaching upon the plot No.11, Inder Nagar, Lahore bearing Khasra No.907‑Min, 905‑Min measuring 19 Marlas 35 sq. ft. The parties to bear costs". This is vide judgment and decree, dated 5‑5‑1980. This has not been challenged any further by the respondent No.2 in any proper and regular proceedings. Instead, the respondent No.2 put in an application before the Deputy Settlement Commissioner on 30‑11‑1980 saying that property No.S‑XV‑62 Sr.7. measuring 4 ? Kanals was transferred to the applicant; because of illness and old age she has not been able to get the mutation sanctioned. Now when contacted the revenue authorities, it transpired that an area measuring 19 Marlas 5 sq. ft vide P.T.D. in the name of Muhammad Abdur Rehman has been mutated on 9‑1‑1973. According to the application, he had not obtained any P.T.D. from the Settlement Department. In ex parte proceedings the Deputy? Settlement Commissioner held that no P.T.D. was ever issued to Muhammad Abdur Rehman and the P.T.D. was fake and forged. He sent the communication to the Assistant Commissioner, Sadar, Lahore for making necessary correction in the revenue record on 1981. Heirs of Muhammad Abdur Rehman have filed the afore-titled Constitutional petition.

6. Learned counsel for the petitioner contended that the notices and proclamation were issued in the names of the petitioners at the address of the respondent No.2 herself. Consequently, they never came to know of the proceedings before the Deputy Settlement Commissioner. It was secondly contended that the plot in question was auctioned in favour of their predecessor‑in‑interest in 1966 and he was issued P. T. D. in 1967. The plot was no more available for auction in favour of Roshan Ali in 1971 and he could not transfer the same in favour of respondent No.2 in her Writ Petition No.232‑R of 1976 (in the absence of the petitioners) because he had no title himself.

7. Learned counsel for the Settlement Department has supported the impugned order of the Deputy Settlement Commissioner.

8. Learned counsel for respondent No.2 has opposed the petition and submitted that the notices and proclamation were issued on the address given by the petitioners themselves. It was next contended that their was no evidence of the auction in favour of the predecessor-?in‑interest of the petitioners Mian Abdur Rehman and P.T.D. issued in his favour has rightly been found to be fake and forged.

9. I have heard the learned counsel for the parties and gone through the record of this petition as well as the previous petition filed by the respondent No.2. There are two points attracting attention which are decisive in character, firstly, that the plot in question was initially sought by the respondent No.2 as a part of the bungalow transferred to her. The Additional Settlement Commissioner, vide order, dated 2‑11‑1960 (Annexure 'G' with the earlier Writ Petition No.232‑R of 1976) declining relief to the petitioners, directing the Deputy Settlement Commissioner "to check up the property which has been transferred through earmarking and which is No.60‑S‑11 to ensure that the open plot next door has not been transferred alongwith this". In other words, he held the open plot next door to property No.60‑S‑11, to be distinct and to be separately disposed of. Neither the respondent No.2, nor, the transferee of plot No.60‑S‑11 was found entitled thereto. This order having never been challenged by the respondent No. 2 any further, it became final. The respondent No.2 was no more entitled to claim transfer of the open plot. Secondly, the suit filed by the petitioners, relevant paras. of the judgment already quoted above was decreed in favour of ,the petitioners against the respondent No.2 permanently restraining the latter from encroaching upon plot No.11, Inder Nagar, Lahore bearing Khasra No.907‑Min and 909‑Min measuring 19 Marlas 35 sq. ft. thus upholding the title of the petitioners to the plot in question and restraining the respondent No.2 from interfering in their rights. The decree was passed on 5‑5‑1980. Against this judgment and decree, the respondent No.2 has never taken any steps to challenge the same in appropriate Courts by means of an appeal or revision etc. From these two facts it is quite clear that the respondent No.2 has been denied the plot in question both by the Settlement Department as well as by the civil Court and she could not subsequently claim any right or interest therein. Therefore, her application before the Deputy Settlement Commissioner, dated 30‑11‑1980 was without any basis and she had no locus standi to move the same. The Deputy Settlement Commissioner fell in error in proceeding on the said application. The Deputy Settlement Commissioner had no jurisdiction to entertain the application filed on 30‑11‑1980 when the law under which he was created i.e. Displaced Persons (Compensation and Rehabilitation) Act, 1958 had already been repealed six years earlier vide act, XIV of 1975 which came into force on 1‑7‑1974. He had no jurisdiction to declare the P.T.D in favour of the petitioner's predecessor‑in‑interest to be fake or forged nor had he any jurisdiction to direct Assistant Commissioner, Sadar, Lahore to make necessary correction in the revenue record, attest mutation in the name of Mst. Rashida Begum (respondent No.2) of Khasra No.905, 907‑Min of village Pakki Thathi, Lahore and cancel mutation No.301, dated 9‑1‑1973 from the name of the predecessor?-in‑interest of the petitioners. If the Deputy Settlement Commissioner was of the view that the mutation in favour of the petitioners bearing No.301, dated 9‑1‑1973 was bad requiring review, he had to apply to the relevant authorities in accordance with law. And if he wanted the P.T.D. issued in favour of the petitioners which formed the basis of the mutation No.301 to be declared as fake or forged, he had to apply to the civil Court for such a declaration as has been held by they learned Supreme Court long ago that if the Settlement authorities think. that a P.T.D. is a forged document, they have to file a civil suit like any other citizen. In the case in hand it is quite clear that the respondent No.2 having been denied the plot by the Settlement authorities as far back as 2‑11‑1960 and a decree having been passed against her on 5‑5‑1981 which she never challenged, she had no right or interest in the plot in question, nor, on her motion the Deputy Settlement Commissioner should have fallen prey in unsettling in 1981, settled matters through public auction and P.T.D. issued in 1966/1977. In this view of the matter, the impugned order of the Deputy Settlement Commissioner, dated 5‑1‑1981 is declared to be without lawful authority and of no legal effect. The petition is thus allowed with costs to be borne by the respondents s 'Nos.1 and

2. H . B . T .???????????????????????????????????????????????????????????????????????????????????????????? Petition allowed.