1990 PLP 1607 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑ Leave to appeal was granted to the appellant‑transferee of an industrial concern, against the judgment of the Lahore High Court dated 2‑11‑1985 accepting a Constitution petition filed by respondent No.l whereby the alteration in his P.T.O. in respect of a house adjacent to the industrial concern was held to be without lawful authority and of no legal effect.

2. The industrial concern and the house in dispute were located so as to be adjacent one to the other but were distinct and separate properties before partition. After partition, however, two rooms of the house in dispute came to be used for the purposes of the industrial concern and have consistently remained in such use. The industrial concern was put to auction and purchased by the petitioner. The respondent who was occupant of the house excluding these rooms, sought exclusion of the house‑‑the whole of it including those two rooms, from auction and obtained it. The Settlement Commissioner by order dated 6‑12‑1900 divided this house, allowing the portion in possession of respondent No.l to be transferred to him and in respect of the two rooms status quo was ordered to be maintained. The relevant portion of the order reads as hereunder:‑‑ "I also inspected the spot in the company of my predecessor some 2‑1/2 months back and observed that the residential portion was conveniently separate from the portion in possession of the respondent‑‑the auction purchaser. It is, therefore, quite futile to reopen proceedings which have been terminated in a satisfactory manner... The inspection of the spot disclosed that each party was in possession of its portion without causing any disturbance to the other. I should also have mentioned that the appellant being a displaced person from Jammu and Kashmir who has been in possession of the premises is an allottee since quite a long time cannot be displaced under section 30 of the Act. I would, therefore, allow the status quo to be maintained and allowing the appeal of Kh. Muhammad Iqbal, setting aside the order of the Court below, direct that the portion in possession of the appellant be transferred to him."

3. In the meantime, the respondent had obtained P.T.O. for the whole house and sought the eviction of the appellant from the two rooms and succeeded in appeal, and in second appeal from the High Court, in getting the appellant evicted. Subsequently. the Settlement Commissioner (Industries) directed the Provisional Transfer Order of the respondent to be corrected in terms of the order of the Settlement Commissioner dated 6‑12‑1960; just quoted. This was done on an application made by the appellant. This was challenged by a Constitution petition in the High Court which was allowed by the learned Judge and the relevant reasons and observations with regard to the merits of the claim are reproduced hereunder:‑‑ "I have heard the learned counsel for respondent No.4 at length and gone through he record with his assistance. A reading of the judgment of the learned Division Bench in the L.PA. No.177 of 1965 against which the respondent No.4's C.P.S.L.A. was dismissed , on 30‑10‑1970 and his review application on 8‑3‑1974 and thereafter against the order of his ejectment passed by the Rent Controller as upheld by the first appellate authority and the High Court, dismissal of his C.P.S.L.A. No.534 of 1982 on 26‑7‑1982, leave no doubt that the disputed two rooms were found to be part of the residential building transferred to the petitioner. Tenacity of the respondent was no doubt, surpassed by perseverance of his earned counsel but pedantry too cannot pull down by pyramid. The two rooms were held to be part of the residential building. Even if not applied for those would go alongwith the building. This is established law declared by the learned Supreme Court of Pakistan. There was no need for the petitioner to challenge the order of the Settlement Commissioner (Industries), dated 6‑12‑1960 as it was in his favour and it quite clearly found that the disputed rooms formed part of the residential building. Transfer documents have to conform to the contents of the transfer order finally made. In view of the final orders maintained at highest level, this petition is allowed. The petitioner is entitled to remain in peace of the residential building including the disputed rooms X and X‑1 and have the title deeds accordingly. He shall have his costs from respondent No. A"

4. Syed Muhammad Ali Zaidi, Advocate, the learned counsel for the appellant has taken us through the record in order to show that the basic order of transfer and entitlement was that of the Settlement Commissioner dated 6 12‑1960 which was never disturbed or modified. The Provisional Transfer Order in any case had to conform to it. The High Court could not interfere with it.

5. None of the respondents appeared to contest the proceedings which are, therefore, ex parte.

6. The learned Judge in the impugned order/judgment has referred to the litigation coming up in the Letters Patent Appeal as justification for interfering with the order of the Settlement Commissioner (Industries) directing alteration in the P.T.O. The facts show that a learned single Judge of the Lahore High Court had interfered with the order of the Settlement Commissioner (Industries) dated 6‑12‑1960 and treated the whole house as a part of the industry. The Letters Patent Appeal Bench set aside that order and restored that of the Settlement Commissioner (industries) dated 6‑12‑1960. Therefore, for determining the extent and the nature of the entitlement one had necessarily to regard the Order of the Settlement Commissioner (Industries) dated 6‑12‑1960 as final and not Letters Patent Appeal Bench decision which restored that order. Further, the orders passed in the Rent Controller's jurisdiction were not relevant for the purpose, because the Rent Controller was bound to follow and not entitled to look behind the Provisional Transfer Order. At the stage when the Rent Controller proceedings had been instituted and decided, the full house was shown to have been transferred to the respondent. Hence, the recognition of the respondent as transferee of the whole house on account of such a P.T.O. does not bless or sanctify the P.T.O. as such.

7. The order of the Settlement Commissioner passed on 6‑12‑1960, as reproduced above, clearly shows that he divided the house and confined the entitlement of the respondent to the portion in his possession maintaining the status quo with regard to the two rooms in possession of the appellant. On the basis of such an order the respondent cannot claim to be the transferee of those two rooms nor car' the appellant claim to be its transferee as such. The correction of the P.T.O. and its conformity to the order passed on 6‑12‑1960 could not be legally objected to by the respondent and his Constitution petition was liable to dismissal on that account. It is for the notified authority to determine the manner of the disposal of the two rooms in possession of the appellant and not dispose of in favour of respondent.

8. The appeal is accepted ex parte. The judgment of the High Court is set aside and the writ petition filed by the respondent is dismissed with no order as to costs. AA./P‑145/S Appeal accepted.