P L D 1918 Karachi 487 (PLP)

Settlement Commissioner who on that application had inspected the premises stated that the tenement to question has been shown so consisting of two big rooms and open courtyard. The site was also Inspected by the learned Deputy Settlement Commissioner II 'Karachi, and found that the two rooms were actually used by the respondent's (Asst. Hayat Bibi) tenant as godown, while the open courtyard attached was used by the transferee of tenement No. G/1. In spite of this the Deputy Settlement Commissioner II, Karachi, directed that the site plan may be verified which was found to be 26 sq. yards by the Settlement Inspector on 31‑7‑1974. It was therefore, clear that the 2nd respondent bad neither claimed nor had sought to recover any rent for the portion in the actual use and occupation of transferee of premises No. G/1, but the dispute had arisen only in 1971 when the attempt was made to forcibly occupy the courtyard.

3. According to the petitioner the dispute with regard to the area of the courtyard had in fact arisen in the year 1949‑50 in‑between the occupants of tenement G/1 and G/4 as at that time the courtyard was common. This dispute had been decided on 4,5‑1950 by which the then Deputy Rehabilitation Commissioner had directed the common courtyard to be divided into two equal parts, halt of which to go with premises G/1 and the other half with premises G/4. A wall separating the two portions was raised in accordance with the direction in the order dated 4‑5‑1950 which is Annexure 'J'. The operative part of that order was, "now in view of the facts that out of the four occupants of the ground floor the courtyard is not used by two of them, and In order to be fair to both the parties, I direct that the courtyard be equally divided into two, erecting a temporary wall. The portion of Yaseen be used by Yaseen for his hand looms and the other half by the side of ration shop by Abd jllah. The Sub‑Inspector of police Rehabilitation Branch will got the partition done in his presence." An appeal was preferred against this order before the Admlniitrator and Rehabilitation Commissioner, Karachi. He dismissed the same on 30‑9‑1950 holding that there was no reason to interfere with the order of the Collector and the Deputy Rehabilitation Commissioner. Karachi and that he has given cogent reasons for dividing the courtyard between the appellant and respondent. As this order was not challenged by any of the parties the same became final. It is contended by the petitioner that in spite of these final orders, the let respondent passed an elaborate order on 28‑7‑1975, in the matter of demarcation and identification of tenement No. G/ t of Plot BR 5/3 situated at Bunder Road, Karachi and finally holding that "the orders passed by the Rehabilitation Authority in the year 1950 in respect of the courtyard for the rehabilitation of existing occupants who are neither transferees nor owners under the Settlement Law are not binding on the present transferees. Under the above circumstances I demarcate and identify tenement No. G/1 to the extent of one room only according to the entries of B. P. R. The site plan be verified accordingly after excluding the area of courtyard which stands already verified in favour of the Opponent," Mr. Muhammad Ismail Munshi learned counsel for the petitioner challenged the validity of this order as being without jurisdiction and devoid of any legal sanctity.

4. The petition was contested by the second respondent alone, whose attorney and son M. A. Rahim Fsrooql filed a oountera davit stating thsl the Suit No. 149/1971 for declaration and injunction on the basis of the demaracation plan dated 7‑9‑1963 had been filed on behalf of the 2nd petitioner in which ho had prayed for a declaration about the open court yard in his favour. The 1st petitioner has purchased the said Shop G/1 alongwith courtyard during the pendency of the suit for declaration. Thus h was within the knowledge of the petitioner No. 1 that the second petitioner had no right whatsoever in the aforesaid courtyard. The first petitioner became a party to the proceedings only on the strength of the alleged sale deed and an amended plaint was filed within the original prayer was maintained. According to him the first petitioner had also made an application for the clarification of the demarcation of the plan on the basis of the said sale deed before the Deputy Settlement Commissioner, who had made no reference to the plan dated 7‑9‑63 nor to the fact that the suits relating to that were pending in the civil Court. He contended that the second respondent had also filed the Suit 2362/1975 for ejectment, possession and mesno profits in the civil Court and that the two suits were at the stage of recording of evidence. Before the said suits were decided Ilsa petitioners were not entitled to invoke the jurisdiction of this Court, which could be done only when there was no other suitabie remedy available. The petition acsording to him was, therefore, liable to be dismissed even on this short ground. Besides this he denied that the premises sacked G/1 was put to auction alongwith the open courtyard as alleged by the petitioner. According to him the courtyard was being used as a spore by the then occupant of the premises. The Premises No. G/1 along with the open courtyard had been shown in the record of the Custodian Department. The same was a shop and therefore, a commercial unit, and the open courtyard was never attached to it. The alleged demarcation plan on which the petitioner hard relied was neither produced nor referred to In the application dated 4‑6‑1975. filed by the first petitioner before respondent No.

1. On the contrary the petitioner had filed the Suit 149/1971 on the basis of the demarcation plan which was dated 7‑9‑1963. The demarcation wall raised at the direction of the Deputy Rehabilitation Commissioner dated 4‑5‑50 was only with the view to maintain peace between the parties who alleged to use the open courtyard but that in itself did not create any right, and the demarcation wall could not in law form the basis of the plan on which reliance could be legally placed. On the other hand the transfer of G/4 was made after full consideration of the Evacuee Property Register, the Inspsctor's report and Anne:ures 'G', 'H' and 'I' which were relied upon by the petitioner. The sale deed referred and relied upon by the first petitioner could not be used by the purchasing parties to obtain a fresh demarcation plan, as the demarcation plan dated 7.9‑1963 was in itself a bogus and self‑created plan. The demarcation sought by the first petitioner in Suit No. 149/71 was in the following terms:‑ "Deolaration of the portion of the land marked Red in the plan annexed to the plaint and marked 'B' in respect of the promises No. G/1 B. R. 5/3, Bunder Road Quarters. Karachi form part of the said premises G/1 belonging to the plaintiff and the defendant has no right to encroach upon the same or to raise construction thereon." It was further pointed out that the issues framed by the civil Court on the basis of the pleadings of the parties, were aimed at consideration of then facts, and required decision thereon. After a P. T. D‑ is issued in favour of a part' which in this case was done to the second respondent the question for consideration was whether the Settlement Authorities retained any powers to interfere with regard to the question of the demarcation of the area passed on the basis of such a P. T. D. The question was considered in the case of S. Anwar HwWn ' Sant v. Sarfras Ahmad and others (1), where at page 669 lit was held‑ "There can be no dispute with the general principle that after title has passed on to the person in whose favour a P. T. D., has been Issued the Settlement Authorities become functua officio to deal with that property. Transfers under the Displaced Persons (Compensation and Rehabilitation) Act, are however, !n the nature of a grant and it is open to the grantor to impose such terms and conditions on the ownership rights as the law may provide. The relevant provisions of law in respect of transfer of properties under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 are contained in the Permanent Transfer (Houses and Shops) Rules, 1961, framed b' the Central Government in exercise of. powers conferred on It by ,.r section 35 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)." The above case came under consideration in Nisar Ahmad v. Chief Settlement Commlasloner (2), where it was observed at page 150 t "It will be seen that the principle enunciated by this Court had reference to the powers of the Settlement authorities and not to the powers of judicial review ousting in the High Court under Article 98 of the 1962 Constitution". In the case of Muhammad Anwar Khan v. M. A. Wastl and another (3), their Lordships of the Supreme Court had the occasion of examining the question once again and it was observed at page 376 that "The second limb of the argument, namely, that after the issuance of the P. T. D. in the petitioner's favour, the matter could not have been reopened, conveniently overlooks the further well‑settled potion that in the circumstances of the case, the question whether P.1. D. in favour of the petitioner was issued in proper exercise of the authority of Settlement Commissioner, is open to judicial scrutiny. !here is abundant authority in support of the view that the deletion of rule 7 of the 1961 Rules, does not foreclose the jurisdiction of the Settlement authorities or for that matter the High Court to uncover the cases of fraud or illegality even after the issue of P. T. Do. See for instance the Court's judgment in Civil Petition fop Special Leave to Appeal No. K‑104/1965 (Muhammad Ismail v. Mst. Shamsun ntaa) and in Anwar Hussain v. Sarfraz Ahmod. It is also well settled that the deletion of rules 6 and 7 of the 1961 Rules does not repeal Chapter VI of Act, XXVIII of 1958, which provides for appeal and revisions. Indeed some of the judgments relied upon by the petitioner's leerned counsel expressly excepted the cases of fraud and lack of jurisdiction as valid grounds for the cancellation of the P. T. D. notwithstanding the deletion of rules 6 and 7 of the 1961 Rules.," In the light of the above it would appear that the powers of this Court to interfere into the question of eemarcation of the property after the issuance of P. T. D. are not in any way taken away, but in the present (1) PLD 1971 SC669 (2) 1973 SCMR147 (3) 1975 S C M R 372 case no grounds have been made out for such interference or e:ercisinE powers of the constitutional jurisdiction The matter admittedly is unde the consideration of the civil Court where the pleadings of the parties and issues framed by the Court show that the real dispute between the partiw~ and relating to this property is in actual contest. It is also admitted that the suits are at the present moment at the stage of recording evidence. In view of the stove and also as no fraud or male fide action is alleged, the present petition is obviously misconceived. As a whole dispute relates to the demarcation of the open space of which the civil Court has already taken aognizince the remedy of the petitioner lies there. This petition is, therefore, dismissed but in the circumstances of the case with no orders ail to coots. e. s,. s. Petition dismissed,