1983 PLP 735 (SCMR)

Rana Abdur Rahim Khan, Advocate and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner. Nemo for Respondents Date of' hearing : 29th January, 1978. DORAB PATEL, J.‑The dispute in this petition for leave relates to a house in Karor Pacca in Multan District. This house bears No. 521 in the Settlement records. The property next to it bears No. 5,'0 in the Settlement records and was occupied at the relevant time by one Changa. Then some Properties Nos. 521 and 522 and we may point out that Property No. 522 was an open plot when Settlement operations began. The first respondent who had claimed possession of all these properties had, according to learned counsel, filed an N. C. H. form some time in 1959 only for properties bearing Nos. 521 and 522, therefore, Property No. 319 was auctioned in due course in favour ‑‑of ‑the petitioner Who after paying the auction price obtained the P. T. O. and P. T. D. for this house and it is relevant to emphasise here that the P. T. D. was issued on 1-6‑1966 because there was no dispute about this property. Accordingly, after obtaining the P. T. D. the petitioner sent a notice to the first respondent to attom to him as tenant, 'but as the first respondent claimed that this property (which bears No. 384 in the records of the Excise and Taxation Department) had been transferred to him, the petitioner sought relief from the Deputy Settlement Commissioner, Multan. The Deputy Settlement Commissioner appointed an Inspector to make an enquiry and the Inspector's report was that Property No. 519 of the Settlement Department corresponded to Property No. 384 of the Excise and Taxation Department which had been auctioned in favour of the petitioner. However, it would appear that the first respondent relied on the transfer documents in his favour namely, Appendix IX, a P. T. O. and P. T. D. which he produced before the Inspector of the Settlement Department. The Inspector was not impressed by these documents, because, according to him, the first respondent had not even sought the transfer of Property No. 519 on his N. C. H. form and although this property was to be found on the P. T. O. and P. T. D. the Inspector was convinced that this was a fraudulent interpolation and in reaching this conclusion, he also took into account the other circumstances such as that the departmental copy of the Appendix IX in first respondent's favour which did not contain any reference to Property No.

519. This report was placed before the Deputy Settlement Commissioner who was of the view that the first respondent had tried to get Property No. 519 transferred to him "through unfair means and with the connivance of some official of this office had succeeded in getting Property No. 519 on his N. C. H. form and the transfer order passed by the Deputy Settlement Commissioner . . . . . House No. 519 bearing Survey No. 384 had actually been sold out in open auction for which (the petitioner) offered his highest bid. Accordingly, he recommended to the Additional . Settlement Commissioner that the transfer documents in favour of the first respondent should be corrected by deleting the reference to Property No.

519. The Additional Settlement Commissioner agreed with the view of the Deputy Settlement Commissioner and directed by his order dated 5‑12‑1968 that the first respondent had "no concern with Property No. 519/384. His documents may be corrected accordingly". He also observed that the reference to him by the Deputy Settlement Commissioner was unnecessary. The first respondent then challenged this older in a Revision before the S. C., and as the first respondent had also claimed Property No. 520 which was occupied by Changa, Changa also filed a Revision. The details of these Revisions are not relevant and it is sufficient to state that by his order dated 30th January, 1973 the Settlement Commissioner remitted the case to the Deputy Settlement Commissioner with the direction that the Deputy Settlement Commissioner "should make enquiry regarding the possession of these two petitioners and then decide which of the numbers are of the property which have been transferred to them on the basis of their possession against their forms". Accordingly the case was re‑examined‑by the Deputy Settlement Commissioner who re‑affirmed his earlier finding that property bearing No. 519 in the Settlement records was the same as that shown in the Excise and Taxation records as Property No. 384, and as the Settlement Department had auctioned property bearing No. 384, he re‑affirmed, after carefully examining all the evidence, his. earlier conclusion that the first respondent was not entitled to Property No. 384/519 and that this property had not been transferred on the basis of possession. Aggrieved by this order, the first respondent filed a Revision for the second time before the Settlement Commissioner which was allowed on 2‑11‑1973 principally on the ground that the Deputy Settlement Commissioner had been directed only to ascertain the identity of the property in dispute and to demarcate them and had instead illegally decided the question of title against the first respondent. The petitioner, therefore, challenged this order of 2‑11‑1973 in a writ petition in the Lahore High Court. It would appear from the impugned order that the petitioner's main submission in the High Court was that the Settlement Commissioner had illegally cancelled the transfer in favour of the petitioner because the petitioner had obtained his P. T. O. on 18‑9‑1961 and his P. T. D. on 1‑6‑1966. This had reference to the fact that the P. T. D. had been issued because there was no dispute about the property therefore; learned counsel had relied on the amendment of the P. T. D. Rules on 2‑3‑1964. However, the learned Judge rejected this submission with the observation that the petitioner had himself re‑opened the case by his application to the Settlement Commissioner on the first respondent's refusing to attorn to him. But, according to learned counsel, the petitioner has also relied on the concurrent findings of the Deputy Settlement Commissioner and of the Additional Settlement Commissioner that the reference to Property No. 519 in the transfer documents in the possession of the first respondent had been effected fraudulently and that the Settlement Commissioner had failed to examine this aspect of the case, therefore, the Settlement Commissioner's order was contrary to the evidence on the record. The learned Single Judge has not referred to this submission except to observe that the petitioner was free to approach the civil Courts to ascertain his rights and with this observation, he dismissed the writ petition. Hence this petition for leave. Learned counsel submitted that the transfer of the property in dispute had become final on the issue of the P. T. U. in the petitioner's favour, therefore, in the events that happened, the Settlement Commissioner had jurisdiction to cancel that P. T. D. and that nothing turned on the fact that the petitioner bad sought a clarification from the Settlement Department about his rights. Learned counsel also submitted that the Settlement Commis sioner had erred in law in interfering with the concurrent findings of the Deputy Settlement Commissioner and of the Additional Settlement Commis sioner that the transfer documents in the possession of the first respondent had been obtained fraudulently. These submissions require examination. Accor dingly, we grant leave as prayed. Security in the sum of Rs: 1,

000. Leave granted.