1982 PLP 1222 (CLC)

"I quite agree with the learned counsel that the room or rooms (of locals) should not beg put to auction to avoid unsettlement of the present refugee occupants and it would be better if the rooms in question are given over to the persons with whom they are contiguous forming separate divisible portions. I understand some other displaced persons have put in revision petitions although they aril not before me but they too would be adequately served if the above opinion is implemented. I accept the revision and remand the case to the lower Court for making the proper division after visiting spot so that every one of the displaced persons gets a separate portion." This is vide order dated 19‑12‑1961.

6. Sh. Bakhsh Illahi, Muhammad Basharat and Ali Hassan entered into an agreement so as to divide the property in their possession and the rooms in possession of locals which were not transferred to the latter nor allowed to be auctioned. The agreement is dated 2‑1‑1962 and is to the following effect; Bakhsh Illahi will be owner of the portion in his possession, of the two rooms of Muhammad Basharat and entire portion of Abdul Karim local. Muhammad Basharat will be owner of one room of Bashir Ahmad local, entire portion of Abdul Latif local excepting his own portion rooms which had gone to Bakhsh Illahi. Ali Hassan will be owner of his own portion, of the portion of Bashir Ahmad except one room which had gone to Muhammad Basharat, and of one room of Bakhsh Illahi. The agreement was presented before the D. S. C. on 5‑1‑1962. The D. S. C. took up the matter, after remand, on 17‑6‑67 and passed the following order; "According to the position at the site Bakhsh Elahi's successors‑in interest shall stand transferred portion in their possession except one room which is on the ground floor (tire other side of the passage plus the portion of Abdul Karim local and in addition to that the portion in possession of Muhammad Basharat. Ali Hassan the other party in this case will have the portion in his occupation (except gallery over the shop of Mst. Hamida Begum) plus the room in possession of Bakhsh Elahi on the ground floor and the portion in occupation of Bashir Ahmad except a room which falls on the gallery of Chiragh Muhammad. Gallery over the shop of Mst. Hamida Begum will go to her alongwith the shop. Muhammad Busharat a refugee from J & K will get the portion at present with Abdul Latif with the exception of one room which falls on the gallery of Chiragh Muhammad. The last man in this case Chiragh Muhammad will get two rooms at present in occupation of Abdul Latif and Bashir Ahmad which fall on the top of the gallery of the shop which already stands transferred to him. Documents to be issued accordingly."

7. Sh. Bakhsh Illahi's heirs entered into an agreement of association with his brother‑in‑law, Sh. Abdur Rehman who made the payment and was issued Permanent Transfer Deed on 23‑12‑1967. Muhammad Basharat paid the transfer price on 14‑12‑1967.

8. Six appeals were filed which were allowed and case remanded for fresh decision in accordance with the observations of the learned Settlement Commissioner dated 19‑12‑1961 with the condition that the D. S. C. shall also keep in view that the portion or portions for which the P. T. D. have teen issued will not lie touched". This is vide order dated 23‑8‑1968.

9. On remand, the D S C did not touch the portion in possession of Muhammad Basharat which had earlier been transferred to Sh. Bakhsh Illahi and for which P. T. D. had been issued. But, the portion in possession of Abdul Latif which had been earlier transferred to Muhammad Basharat and for which the latter had paid the transfer price on 14‑12‑1967 was takes‑away from him and given over to Chiragh Muhammad. This is vide order dated 3‑2‑1970.

10. Muhammad Basharat's heir filed an appeal (Annexure R/2) against Bakhsh Illahi and Chiragh Muhammad complaining that the portion in his possession had been given to Sh. Bakhsh Illahi and the portion instead thereof transferred to him has been given under the impugned order to Chiragh Muhammad. Therefore, he has been left with nothing.

11. The learned Additional Settlement Commissioner without realizing that the portion in possession of Muhammad Basharat had gone right in the beginning and by his own agreement to Bakhsh Illahi, in lieu of which the appellant had been transferred the portion in possession of Abdul Latif and Bashir Ahmad for which he had also paid the transfer price and also ignoring his own earlier direction dated 23‑8‑1968 "portions for which P. T. D. had been issued mill not be touched", accepted the appeal in the manner that Muhammad Basharat was ordered to be transferred the portion in his own possession. This is vide order dated 3‑6‑1971.

12. Muhammad Basharat's heir filed revision petition No. 41 of 1971 against Bakhsh Illabi and Chiragh Muhammad. So did Sh. Bakhsh Elahi against Muhammad Basharat bearing No. 53 of 1971. Both were dismissed by separate orders dated 11‑1‑1974.

13. Sh. Bakhsh Illahi's heirs and the associatee filed the present Constitutional petition against Muhammad Basharat deceased through Muhammad Yousaf. An application was filed by Mst. Saeeda Begum that she had been declared as an heir of Muhammad Basharat and had not been impleaded as a party. Therefore, the Writ Petition be dismissed. The petitioners filed an application that omission of her name was by inadvertence as her husband Muhammad Yousuf was prosecuting the proceedings and the deceased was sued through him. The omission is inadvertent and the learned counsel for the petitioners and Mst. Saeeda Begum were heard at length on merit. Therefore, the case was taken up with reference to facts and law applicable thereto and the two applications were thus disposed of.

14. Coming to the crux of the controversy, from the statement of facts made above, it would be recapitulated that in the beginning Sh. Bakhsh Illahi was given the portion of Muhammad Basharat and the latter was transferred the portion in possession of Abdul Latif and Bashir Ahmad, locals, who are no more contestants, by the Deputy Settlement Commissioner. Muhammad Basharat accepted the transfer and did not appeal. Refer to the order of the Additional Settlement Commissioner dated 28‑6‑1960. In further proceedings which were essentially against auction of rooms in possession of locals, the case was remanded to give the rooms in possession of locals to the adjacent occupants instead of auctioning the same to the Deputy Settlement Commissioner. Before the latter Sh. Bakhsh Illahi and Muhammad Basharat submitted agreement, adhering to the earlier transfer, on 5‑1‑1962. The Deputy Settlement Commissioner modified the earlier transfer in accordance with the agreement vide order dated 17‑6‑1967. Both parties i.e. Sh.Bakhsh Illahi and Muhammad Basharat paid the transfer price of the respective transferred portions. The former was issued Permanent Transfer Deed. On appeals, the learned Additional Settlement Commissioner though remanded the case but directed that "portions for which P. T. D. have been issued would not be touched" vide order dated 23‑8‑1968. On remand, the Deputy Settlement Commissioner did not touch the P. T. D. of Sh. Bakhsh Illahi, but gave the portion earlier transferred to Muhammad Basharat to Chiragh Muhammad in spite of knowing that Muhammad Basharat's own possessed portion had gone to Sh. Bakhsh Illahi and Muhammad Basharat was being deprived of any residential portion in favour of Chiragh Muhammad who had already been transferred another residential portion in Property No. P‑224, Ward No. 6, Faisalabad (Annexure J.) and that nobody could be transferred two residential portions. The order of the D. S. C. is dated 3‑2‑1970. On appeal of Muhammad Basharat against Chiragh Muhammad too, the learned Additional Settlement Commissioner transferred the portion in possession of the appellant to the latter without realizing that that had gone to Sh. Bakhsh Illahi earlier without demur, tot whom P. T. D. had also been issued and that be had himself earlier directed that "the portions for which P. T. D. had been issued shall not be touched" and he has no jurisdiction to review his previous order. The order of the learned Additional Settlement Commissioner passed in the second round on this appeal dated 3‑6‑1971 was challenged both by Sh. Bakhsh Illahi and Muhammad Basharat by two separate revisions. , Instead of taking up the two together and grasping the essentials of the controversy, the learned Settlement Commissioner disposed of the two by separate orders of the same date maintaining the order of the Additional Settlement Commissioner. Sh. Bakhsh Illahi filed the Constitutional petition.

15. After bearing the learned counsel for the parties, order was dictated accepting the petition on the ground that not only the earliest transfer by the Deputy Settlement Commissioner was accepted and not appealed against by Muhammad Basharat but in remand proceedings it was adhered to by agreement and when order was accordingly passed by the Deputy Settlement Commissioner on 17‑6‑1967, both parties accepted the same, paid the transfer price accordingly. Sh. Bakhsh Illahi was also issued P. T. D. On appeal when the case was remanded, the learned Additional Settlement Com missioner directed that "portions for which P. T. D. had been issued shall not be touched" vide order dated 3‑2‑1970, and this order was not challenged by Muhammad Basharat. The contention of the learned counsel for the heir of the latter that during the period of limitation for filing of appeal P.T.D. could not be issued was found to be belated and without force for the reason that Muhammad Basharat had not objected .to the order by filing any appeal or revision etc. Therefore, the Deputy Settlement Commissioner in the remand proceedings was right in not touching the transfer in favour of Sh. Bakhsh Elahi but fell in error in taking away the transferred portion of Muhammad Basharat and giving it to Chiragh Muhammad when the latter had already been transferred another residential portion and had filer no CH form for the portion in question, vide order dated 3‑2‑1970. Muhammad Basharat's appeal against Sh. Bakhsh Illahi and Chiragh Muhammad was wrongly accepted against the former by the learned Additional Settlement Commissioner on 3‑6‑1971 without fully grasping the fact and against his own previous order dated 23‑8‑1968 which he could no review. The learned Settlement Commissioner fell in the same error when he disposed of the two revision petitions of Sh. Bakhsh Illahi and Muhammad Basharat separately, maintaining the order of the learned Additional Settlement Commissioner dated 3‑6‑1971.

16. While finalizing the judgment, it was felt that the result of acceptance of the writ petition was that Muhammad Basharat had lost his own portion to Sh. Bakhsh Illahi and the portion transferred to him in lieu thereof had gone to Chiragh Muhammad and thus he was left with no portion in spite of being a claimant displaced person in possession of a portion of the property and that seemed unjust. Therefore, the case was fixed for rehearing and the learned counsel for the parties' attention was drawn to all the facts of the case right from the beginning as well as the possibility that probably all the parties concerned were not on record. The latter observation was for the reason that initially the portion in possession of Muhammad Basharat had gone to Sh. Bakhsh Illahi and instead Muhammad Basharat had been transferred the portion of Abdul Latif and Bashir Ahmad locals, for which he had also paid the transfer price, but the latter portion has been transferred in the remand proceedings to Chiragh Muhammad who had neither filed CH form for that, nor, could that be transferred to him as Chiragh Muhammad had already been transferred another residential house (Annexure, J.) and nobody could be transferred two houses and that Chiragh Muhammad was not party to the present proceedings. In spite thereof, neither party chose to implead Chiragh Muhammad. Learned F counsel for the petitioners stated that the petitioners do not claim any relief as against Chiragh Muhammad and that the heir of Muhammad Basharat is not impleading Chiragh Muhammad as they are inter‑related. Learned counsel appearing for the heir or Muhammad Basharat admitted the relation ship and stated that the daughter of the heir of Muhammad Basharat is married to the son of Chiragh Muhammad. This may be the reason for the heir of Muhammad Basbarat not to implead Chiragh Muhammad to take back the portion of Abdul Latif and Bashir Ahmad earlier transferred to Muhammad Basharat which has gone to Chiragh Muhammad and to insist for transfer of the portion in possession of Muhammad Basharat so that the heir of Muhammad Basharat retains the portion in possession as well as allow the transfer of the portion of Abdul Latif and Bashir Ahmad earlier transferred to Muhammad Basharat to remain with her relation Chiragh Muhammad. This, of course, is not fair to have the cake and eat it. Therefore, there doesn t appear to be much of injustice in allowing the petition as was done at the time of first hearing. The portion of Muhammad Basharat was given to Sh. Bakhsh Illahi in the first instance by the D. S. C. in the year 1960 and Muhammad Basharat did not challenge the order by any appeal or revision. After remand the portion was, again, given to Sh. Bakhsh Illahi by the D. S. C. on 17‑6‑1967 who paid the transfer price and was issued P. T. D. Muhammad Basharat was given the portion of Abdul Latif and he paid the transfer price thereof, thus accepting the order. When on appeal, it was directed by the learned Additional Settlement Com missioner on 23‑8‑1968 that portions for which P. T. D. had been issued be not touched and P. T. D. had been issued in favour of Sh. Bakhsh Illahi, Muhammad Basharat did not demur by filing any appeal or revision against the order of the learned Additional Settlement Commissioner. Therefore thereafter, rights of Sh. Bakhsh Elahi could not be interfered with. In this view of the matter and for the reasons earlier given, the petition is allowed but in the circumstances of the case, the parties shall bear their own costs. K. M. A. Petition allowed.