1980 PLP 1846 (CLC)

ZAFFAR HUSSAIN MIRZA, J.

This Letters Patent Appeal arises out of the judgment dated 10-6-1971 by a learned Judge of the erstwhile High Court of Sind and Baluchistan, Karachi whereby the order of the Settlement Com missioner was modified and the transfer of the disputed property in favour of respondent No. 1 Sultan Hamid was maintained, Sultan Hamid having died during the pendency of the writ petition his interest is being represented by his L. Rs. and for the sake of convenience they will be referred to as respondent No. 1.

2. The controversy in this case relates to the first floor of a house bear ing No. A-111-1, situate on Station Road, Mirpurkhas. This house was in the possession of Haji Gul Muhammad, a local who had applied for its transfer on L. R. Form, but his Form was rejected on the ground that the price of the property exceeded R. 10,

000. According to appellant Rehman uddin, as a result of the amendment in the definition of the word "posses sion" in section 2(6) of the Displaced Persons (Comp. & Rehab.) Act, 1958 (hereinafter referred to as the Act) whereby even non-allotees in undisputed occupation of a house were allowed to apply for transfer and consequently since he bad entered into occupation .of the house under the terms of a Partnership Deed with Haji Gul Muhammad dated 9-7-1956, he applied for transfer thereof on a N. C. S. Form dated 14-11-1959. The property was ordered to be transferred to him for a price of Rs. 19,320 which was deposited bar him and a P. T. O. was issued in his favour on 23-11-1959. There is a shop on the ground floor of this building bearing No. A-111/2 which was purchased in public auction by respondent No. 1 being the highest bidder for Rs. 66,

000. The auction was subsequently confirmed on 10-6-1960. The respondent No. 1 then applied to the Deputy Settlement Commissioner on 12-2-1960 for transfer of the first floor in dispute as one unit on the allegation that it was in the occupation of Haji Gut Muhammad who was a local and that the house had not yet been transferred. The Deputy Settlement Commissioner called for the report from his subordinate staff as to whether the house in question has been transferred to any one on L. H. Form. The subordinate. staff reported that the Form of Haji Gut Muhammad for the transfer of the property had been rejected as it exceeded the value of Rs. 10,

000. However, no orders were passed. The respondent No. 1 then repeated his request by his application dated 27-2-1960 addressed to the Settlement Commissioner, who called for the remarks of the Deputy Settle ment Commissioner, who sent his report dated 6-4-1960 in which for the first time it was alleged that the transfer in favour of the petitioner was obtained by fraud as he had been sent up by Haji Gut Muhammad, who failed to obtain transfer in his favour for the reason already mentioned. It was suggested in this report that the house could be either disposed of by public auction or it may be transferred as one unit to respondent No. 1 whose claim to transfer was supported on the ground that the two units were part: and parcel of one property. The learned Settlement Commissioner thereupon disposed of the application of respondent No. 1 by his order dated 7-4-1960 agreeing with the final sugges tion of the subordinate staff by directing them to "proceed accordingly". Consequently on 16-6-1960 a P. T. O. for the first floor was issued to the said respondent. According to the respondents, by letter dated 24-4-1960 the petitioner was informed by the Deputy Settlement Commis sioner that the disputed house had been transferred to respondent No. 1 alongwith the shop already transferred to him as one unit as per the afore said order of the Settlement Commissioner and the P.T.O. issued in favour of the petitioner had been cancelled. The petitioner then seems to have submitted a petition on 7-7-1960 for review of the aforesaid order before the Settlement Commissioner upon which stay was ordered. However, it seems no further proceedings were taken upon the aforesaid review application filed by the petitioner. Ultimately, in the year 1965 the petitioner filed a belated appeal challenging the transfer in favour of respondent No. 1 and cancellation of his P.T.O., before the Additional Settlement Commissioner which was dismissed as not maintainable vide order dated 9-6-1965. The petitioner then filed a revision before the District Judge and Settlement Commissioner, Mirpurkhas. The learned Settlement Commissioner reached the conclusion that both parties were not entitled to transfer of the property, in dispute. In his opinion the petitioner was set up by Haji Gut Muhammad to submit the N. C. S. Form as a result of conspiracy between them and, therefore; the petitioner had no entitlement. In regards the respondent No. 1, the learned Settlement Commissioner was of the view that the disputed premises could 'not be treated as one unit and as such the transfer to him was also illegal. In this view of the matter he set aside all the orders passed by Settlement Authorities below and directed that the property be disposes of by auction vide his order dated 13-8-1965.

3. Respondent No. 1 then filed Writ Petition No. 705/65 in the High Court challenging the legality of the aforesaid order passed by the learned District Judge and Settlement Commissioner, Mirpurkhas dated 13-8-1965 which was dismissed by the impugned judgment.

4. It is first contended on behalf of the appellant that the order of the Settlement Commissioner dated 7-4-1960 having been passed behind the back of the appellant and without affording him prior opportunity of hearing, is palpably void. The result, it is urged, is that the transfer in favour of respondent No. 1 is likewise illegal and does not affect the transfer in favour of the appellant. Admittedly an appeal was filed against the aforesaid order in 1965 and the delay was sought to be condoned on the plea that the appellant had no notice of the cancellation of his transfer and transfer in favour of respondent No. 1, but his plea was rejected by the said Officer on the ground that the appellant had received intimation by letter dated 24-6-1960 referral to above and that this order was sought to be challenged by the appellant himself in Revision No. 131/60 dated 7-7-1960 characterised by the counsel as a review application. Prom these facts it was conclude by the learned Officer that the appellant had knowledge of the order long before in the year 1960. The learned single Judge, therefore, rightly held that remedy before the Settlement Authorities was rendered time barred by the own conduct of the appellant and consequently he cannot be allowed to assail the order in these proceedings. Additionally the appellant did not) even challenge the final order passed by the learned Settlement Commis sioner era his revision application dated 13-8-1965 which was sought to be challenged by respondent No. 1 and, therefore, he was out of the picture". We find no reason to disagree with the view taken by the learned Single judge and, therefore, fwd no force in this submission.

5. It was next contended on behalf of the appellant that in any case the learned Single Judge ignored the review/revision application dated 7-7-1 filed by the appellant whirls was still pending undisposed and consequently he ought to have remanded the case for disposal of the said review/revision application. We do not find force in this contention as well. It will be appreciated that if this course is adopted, the adverse orders passed on the appeal and revision filed by the appellant himself could stand wiped off or alternatively if, these orders remain in the field, collateral proceedings would stand revived which may result in conflicting orders. Such a situation is undesirable specially in view of the fact that the existence of the adverse orders against the appellant was a result of the proceedings initiated by himself. If the appellant had already invoked the jurisdiction of the Settlement Commissioner it was for him to have pursued the same pro ceedings and not resort to independent proceedings by way of appeal and revision and then when the proceedings result in adverse orders against him, to turn round and contend that such proceedings should he ignored. It is well established that a party who invokes the wrong jurisdiction cannot be permitted to challenge some as without lawful authority, for, a party cannot be allowed to approbate and reprobate in relation to the same cause of action. Additionally it may be pointed out that the appellant himself took up the plea before the Additional Settlement Commissioner that he was not aware of the order of transfer before the institution of the appeal in 1965. How can he be permitted to change his plea now to say that he was aware of the said order and had in fact filed a review/revision application? The copy of the said application has been filed with the memo of the present appeal as Annexure `J' which clearly shows that he was aware of the fact the building has been treated as one unit and transferred to respondent No. 1.

6. It was lastly contended on behalf of the appellant that the learned Single Judge seriously erred in granting relief to respondent No. 1 by ordering transfer of the disputed property in his favour on the grounds mentioned by him. It will be best to set out these grounds in the words of the learned Single Judge as under:- "If the matter is looked at from this point of view, then the necessary conclusion would be that respondent No. 2's (appellant's appeal to the Additional Settlement Commissioner was barred by time as held by this Officer himself and all subsequently proceedings would likewise be open' to objection. In this view of the matter, the transfer in favour of Sultan Hamid could not have been set aside. Since the respondent No. 2 has not questioned the order of the Settlement Commissioner at all, I think that it is just and reasonable to allow the transfer in favour of Sultan Hamid and his successors-in-interest to stand, as any other course would involve further lengthy litigation and proceedings in the Settlement Department. Accordingly the order of the Settlement Commissioner is modified to this extent, that the transfer in favour of Sultan Hamid and his succesaer-in-interest, namely, the present petitioners made on 16-6-1960 is main tained." It is contended that the respondent No. 1 had no entitlement at all under the Settlement Law to the transfer of the property in question was an auction-purchaser of an independent unit on the ground floor and was obviously not in possession of the property on the first floor at an time. No Settlement Scheme or the Act and the Rules authorised an Officer of the Settlement Department to validly transfer the property to him This being a palpable illegality, it is urged, the Settlement Commissioner could in exercise of his suo motu powers of revision under section 20 at an time cancel the transfer. We find great force in this submission. The Settlement Commissioner in the impugned order before learned Single Judge in this connection observed as under:- "I agree with the learned counsel for the applicant that the disputed pro perty bearing No. 1/111/1/1 could not be treated as one unit and, therefore, the transfer to the opponent is also illegal. The only course left to the Settlement Department was to put this property in auction when the original occupant Gul Muhammad Shah was found not entitled to get this property." There is nothing in the order of the learned Single Judge of his having applied his mind to this respect of the case and reaching a conclusion that the cancellation of the transfer in favour of respondent No. 1 was for reason not sustainable in law. In fact the learned Single Judge has arrived at hi own conclusion that since the appellant was out M' the picture the property was liable to be transferred in favour of respondent No.

1. Reference eras made to Muhammad Ayub Jan v. Settlement Commissioner, Peshawar (P L D 1967 Penh. 295) where it was held that the shops which are not transferred to the claimant or non-claimants are required to be sold to the highest bidder in an unrestric ted public auction and only then the shops are not disposed of to the highest bidder in such auction, can they disposed. of on such terms and conditions as may be prescribed. Thus disposal of a shop under the First Schedule to the Act is not permissible by negotiation without making any attempt to dispose it of by an unrestricted public auction. Further in Begun B. H. Syed v. Afzal Jehan Begum (P L D 1970 S C 29) it was laid down as under:- "it is not disputed that High Court had no jurisdiction to go into the merits of the case in order to consider the question as to which of the parties was entitled to the transfer of the property in dispute. In the present case, the High Court after quashing the order of Malik Fateh Khan, has considered the merits of the case and directed that the property in dispute be transferred to respondent No.

1. By doing so, the High Court has exits jurisdiction. It should have stayed its hands after quashing the order of Malik Fateh Khan and sent back the case to the Deputy Settlement Commissioner as directed by the Settle ment Commissioner for decision of the dispute between the parties on merits." In the light of the aforesaid we are of the opinion that the order passed by the learned Settlement Commissioner dated 13-8-1965 was eminently suit- able and in accordance with law. No fault could, therefore, be found with the said order and it was not liable to be set aside for the reasons the found favour with the learned Single Judge.

7. In the result, we allow this appeal and set aside the judgment of the learned Single Judge with the result that the order of the Settlement Commissioner sought to be impugned m the writ petition shall stand. As this appeal was not contested by the respondents, we make no order as to costs. K. M. A. Appeal allowed.