1990 PLP 1164 (SCMR)

"I am therefore satisfied that the petitioner did note submit any C.H. Form on the 19th of November, 1959. This fact is further supported by the conduct of the petitioner in the application submitted by him before the Additional Settlement Commissioner for the acceptance of his belated C.H.Form. He did not mention in it the fact of submitting an earlier application for the house in dispute. Besides throughout the proceedings before the Settlement Authorities he contended only on the pica that the house in dispute was a Dharamsala. In such circumstances the probability is that the petitioner did not submit any C.H. Form as alleged by him in November, 1959 because he considered the property in dispute as a Dharamsala."

3. The second round of litigation was taken up by the appellant No.1 who approached the Additional District Judge exercising his powers of the Settlement Commissioner for declaration under section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 claiming that the property in his possession was an evacuee trust property and not transferable to the respondent, The Settlement Commissioner held that the property was not proved to be a trust property and the application was rejected.

4. The third round of litigation was started by Haji Abdul Shakoor before the Claims Commissioner Lahore with regard to the verified claim of respondent No.4. A copy of that order of the Claims Commissioner passed on Abdul Shakoor's application \a.; sent to the Settlement Commissioner, Sindh. At that stage the two appellants put an application‑ dated 30‑12‑1976 disputing and objecting to the verified claim of respondent No.4 with a view to disturb his basic entitlement to the property obtained by him in earmarking. The Order finally passed by the Settlement Commissioner on 6‑8‑1977 had the effect of partially reducing the verified claim of respondent No.4 but not disturbing his status as regards the abandoned property in India. He was asked to make certain payments in cash which he did.

5. In this background the appellants invoked the Constitutional jurisdiction of the High Court praying as hereunder:‑ "(i) to declare that the impugned order dated 6‑8‑1977 of the respondent No.1 is illegal, without lawful authority and without jurisdiction and of no legal effect and liable to be set aside. (ii) to direct respondent No.1 to adjust House Nof1I‑A‑152 situated in Shahpur Chakar, Taluka Shahdadpur district Sanghar against the claims of petitioners and issue joint P.T.O and P.T.D. in favour of the petitioners who have been in possession of the said houre since 1947 in accordance with law. (iii) to direct respondent No.2 to refrain from interfering with the peaceful possession of the petitioners over house No.I1‑A‑15.' in Shahpur Chakar pending the final disposal of this petition. (iv) to grant such other and further relief that this Honourable Court may deem proper in the circumstances of the case. (v) to award costs of the Petition."

6. The High Court held as hereunder:‑ "(i) there is a clear finding in Writ Petition No.109/62 by the West Pakistan high Court Karachi Bench by an order dated 15‑2‑1963 to the effect that the petitioner did not submit any C.H. Form on 19‑11‑1959; "(ii) this Court in its writ jurisdiction cannot give findings on questions of fact and cannot reopen the question, as to whether the petitioner No." had filed the C.H. Form or not arid as to whether the house in dispute was an evacuee property or an evacuee trust property; (iii) the petitioners have made very bold statements in the petition itself which are clearly belied by the documentary evidence produced by .the petitioners alongwith the Writ Petition. Therefore, they do not seem to have come in this petition with clean hands; (iv) the impugned order was passed by the Settlement Commissioner Sindh on 6‑8‑1977 when this Writ Petition was filed on 4‑10‑1978 after a period of about 14 months, and this undue delay in filing this petition, when the matter had reached finality long back, has not at all been explained on behalf of the petitioners. In fact no explanation has been offered in that respect at all:

7. Mr. Khalid M. Ishaque, Senior Advocate, the learned counsel for the appellants contended that the scheme of the settlement law is that the first priority in the matter of transfer of property in occupation of the claimants or the displaced persons is that it should be offered to them and only when they are not desirous of obtaining it the property can be disposed of by other methods including earmarking and auction. As the appellants were keen from the very beginning to obtain it, the very act of placing the property in ear‑marking was without jurisdiction and unsupportable in law. Besides, the appellants had filed a C.H. Form at the appropriate time prior to the earmarking of the house and it was misplaced and a grievance had been made of it. As the P.T.D. was issued in February, 1965 and long before that date, the appellants had asserted their claim it was the duty of the Settlement Authority to have reopened the matter and adjudicated on it in accordance with law applicable to the case. There was a failure and on that account the appellants could not be deprived of the priority to which they were entitled.

8. Mr. Hassan A. Shaikh, Advocate the learned counsel for the respondent has seriously objected to the order of the Settlement Commissioner dated 6‑8‑1977 which deals with a claim matter and modifies the verified claim. According to him in 1977 and long before it the jurisdiction of the Claims Commissioner to review of revise the claim had been taken away. No interference could have taken place on an application of Abdul Shakoor or appellants who had no locus standi in the matter of verified claim of the respondent. It has also been contended that the status of the respondent No.4 as a verified claimant was never disturbed. It is only the amount verified which was readjusted. As the earmarking had taken place at a time when there was no other claim to this house pending and due publicity of earmarking taken place, the appellants could not intervene at a subsequent stage to dislodge the entitlement of the respondent No.4 after the P.T.O. had issued to him. According to the learned counsel the judgment in the earlier Writ Petition (No.109 of fit) given in 1')63 is conclusive and by repeating a similar claim before the Settlement Authorities the appellants cannot revive the claim Much had been finally adjudicated upon.

9. After hearing the learned counsel for the parties at length. we find that the claim of the appellants cannot prevail over that of the respondent No.4 at this stage. In the first place Sher Muhammad had been acting on behalf of Muhammad Younus Khan as well, and being brothers, it was natural for him to do so because they had no competing claims against each other. The fact that they had sought the property stands negated by a positive finding recorded by the High Court in Writ Petition No.109 of 1962, the relevant portions of the judgment having been reproduced above. Besides, thereafter the effort of' the appellants was not so much to insist on their prior claim but that the property he declared to he evacuee trust property. In that effort also they failed. It was the third round dealing with the verified claims which they brought under challenge in the Constitution Petition and through it they sought to get reopened their own earlier effort to obtain this property, their preferential entitlement toil and what they considered to be illegal, transfer of the property to respondent No.4. The question whether they were the prior applicants, stands concluded. Similarly the transfer in favour of respondent No.4 stands upheld as at the time when the property was placed in the earmarking, no application in respect of it, was pending or was under consideration.

10. About the verification of the claim we find that there is not much which can be said so as to benefit the appellants in the matter of transfer of property or to the detriment of the respondent No.4 in respect of the property in dispute. We, therefore, find that in view of the previous litigation between the parties, the findings recorded, and their conclusiveness, no case is made out for our interference at this stage and the appeal is dismissed leaving the parties to bear their own costs. A.A./M‑1297/S Appeal dismissed.