1990 PLP 1695 (SCMR)

AJMAL MIAN, J.‑‑‑Leave to appeal was granted against the judgment dated 29‑9‑1981 passed by a learned single Judge of the Lahore High Court in Writ Petition No.139/R of 1979 to consider the question, whether the official respondent could resume the house on the ground of non‑payment of the price in presence of the judgment of this Court in the case of Mst. Majeeda Begum v, Deputy Settlement Commissioner‑II and others 1980 S C M R 827.

2. The facts to be noted are that there was litigation between the appellant and respondent No.2 as to the question of divisibility and entitlement to the transfer of house bearing No.S‑W.III‑79‑‑S‑4 situate in Krishan Nagar, Lahore, hereinafter referred to as the house, inasmuch as the appellant, his two brothers Hamid Ullah Khan and Majid Ullah Khan, and their mother Mst. Basharat Bano, filed a joint C.H. Form, whereas respondent No.2 also filed C.H. Form for the transfer of the house. The matter came up to this Court in the form of Civil Appeal No.377 of 1973 filed by respondent No.2 which was disposed of through a judgment dated 15‑11‑1973 whereby it was held that the house was not divisible and it was one unit, and as such it stood transferred to the appellant. It appears Settlement Commissioner by his order dated 9‑6‑1975 resumed the price was not paid. Thereupon, respondent No.2 r of the portion of the house in her occupation as the property available. However, the above application was rejected by the Deputy Settlement Commissioner by his order dated 9‑1‑1978, on the ground that the resumption order stood suspended by an order dated 3‑9‑1975 and that the property stood restored. Against the above order, respondent No.2 filed a revision under Settlement Scheme No.9 which was taken up by respondent No.l who was acting as the Administrator (Residual Properties), Lahore Division and had also the power of Settlement Commissioner. He by his order dated 11‑1‑1979 ordered the transfer of the portion of the house in possession of respondent No.2 to her under Settlement Scheme No.9. Against the above order, the appellant filed aforesaid writ petition which was dismissed by a learned Single Judge of the Lahore High Court by the judgment under appeal. Thereupon, the appellant filed the above appeal with the leave of this Court.

3. In support of the above appeal Mr. Zaki‑ud‑Din Pal, Senior Advocate Supreme Court appearing for the appellant, has urged as follows:‑‑

(i) that since the appellant had paid more than 1/4th of the price of the house, the Settlement Department could not have resumed the house on the ground of non‑payment of the price; and (ii) that since in the previous litigation it was held that the house was indivisible, which finding was maintained even by this Court in aforesaid Civil Appeal No.377 of 1973, respondent No.1 could not have transferred a portion of the house to respondent No.2 in presence of the above finding.

4. Adverting to the above first submission of Mr. Zaki‑ud‑Din Pal, we may observe that there seems to be inconsistency between the stand taken up by the appellant before us and before the Settlement Department. It appears that the appellant in his application dated 7‑7‑1975 riled by him before the Deputy Settlement Commissioner, Centre‑11, Lahore for cancellation of the resumption order had made following averment in para. 2 of the said application:‑‑ "

2. That immediately after the transfer of the property in favour of the petitioner, the petitioner deposited his Compensation Book in the office of learned Deputy Settlement Commissioner vide Receipt No.2515/I, dated 9‑12‑1960, alongwith Deed of Association on behalf of his mother and two brothers, for adjustment of the deferred amount available in the Compensation Book." Whereas before us the stand taken by the appellant was that there was delay in the adjustment of the price of the house on account of the delay caused by respondent No.2 in the preparation of the appellant's compensation book. In furtherance of his above submission, he has invited our attention to the Deputy Settlement Commissioner‑IT, Lahore's note addressed to the Settlement Commissioner (Urban), Lahore, particularly the following portion:‑‑ "Since the issuance of the Compensation Book was in progress in the Headquarters Office as appeared from the D.O. Letter No.DSC(R)/ NCB/MISC/1408/937 dated 6‑8‑1975 addressed to the undersigned and therefore, under the circumstances the operation of the resumption proceeding was suspended till further order. But no further intimation about issuance of the Compensation Book has been received from the Headquarters office as well as from the transferees." He has also invited our attention to the Deputy Settlement Commissioner (Accounts and Record)'s letter dated 8‑1‑1978 addressed to the Deputy Secretary, H.O.M.L.A., Punjab, which reads as follows:‑‑ "Kindly refer to your No.801/I/C/ML dated 31‑12‑1977 on the above subject. The case of issue of Compensation Book in favour of Mr. Mahmood Ullah Khan already stands Final; 'zed but the Compensation Book could not be issued due to interference by Madem K.F. Shaifta. In fact office was of the view that confirmation of the talk which took place between Secretary Administration and the Deputy Secretary (Complaint Cell) is being sent to this office, but now the position is that no such correspondence has to take place and the Compensation Book has to be issued according to the law if admissible in favour of Mr. Mahmood Ullah Khan. Under these circumstances the Compensation Book has now been issued and the claimant has also been informed. The matter may kindly be treated as closed."

5. Respondent No.1 found as a matter of fact that the appellant got the aforesaid resumption order suspended by making mis‑statement of fact in his application, the relevant portion of which has been quoted hereinabove. In this view of the matter, he was of the view that the property had become available for transfer under Settlement Scheme No.9. The High Court has maintained the above finding. We are inclined to hold that in view of the above factual finding of fact that the appellant had not paid the price before the resumption order was passed, the appellant's above first contention is devoid of any force. The material on record indicates that the appellant had not paid 25% of the price against Receipt No.2515/1, dated 9‑12‑1960 referred to in above‑quoted para.2 of his application before the date of the resumption. On the contrary in the order of the Deputy Settlement Commissioner, dated 9‑1‑1978 it has been stated that the appellant deposited Rs.12,000 vide Chahan No.G/26, dated 31‑7‑1975 (at page 92 of the paper book). In this view of the matter the case of Mst. Majeeda Begum v. Deputy Settlement Commissioner‑11 and others 1980 S C M R 827 referred to in the leave granting order has no application to the facts of the present case.

6. As regards the above second contention of Mr. Zaki‑ud‑Din Pal that since in the previous litigation it was held that the house was indivisible, which finding was maintained even by this Court in aforesaid Civil Appeal No.377 of 1973, respondent No.l could not have transferred a portion of the house to respondent No.2 in presence of the above finding, it may be observed that after the house had become available for transfer under Settlement Scheme No.9, in our view it was open to the respondent No.l to consider the transfer of a portion of the house in favour of respondent No.2 instead of transferring the entire house in order to accommodate more than one person. The controversy whether the house was divisible or indivisible litigated previously was for the purpose of determining entitlement of the parties to the transfer of the house under Settlement Scheme No.l and not for the purpose of Settlement Scheme No.9. In any case the appellant cannot make grievance of the fact that a portion of the house has been transferred to respondent No.2 and not the entire house. The appeal has no merits. 1t is, therefore, dismissed but there will be no order as to costs. A.A./M‑1349/S Appeal dismissed.