1980 PLP 1367 (CLC)

Date of hearing: 10th November, 1979. The dispute in this petition relates to property bearing City Survey No. 639, situate at Kamber Ali Khan, District Larkana. According to Evacuee Property Register maintained by the Custodian, Evacuee Property, on City Survey No. 639 there were three different tenements, firstly, a shop which was given number 368, to possession of Noor Mohammad, son of Eilahi Bux, of which the evacuee owner was Lakhmichand, son of Sajandas. The second tenement on this survey number was numbered 368-a, which is upper storey in occupation of one Nabi Bux and the third tenement which was given the number of 368-b, a house no occupation of one Kotomal. Of the last two tenements, the evacuee owner was Kewal Ram, son of Kesundas and others.

12. The record of Permanent Transfers show that Shop No. 368, situate on C. S. 369 was put to auction on 16th May, 1960 and purchased by Shamsuddtn, Mohammad Ibrahim, Noor Mohammad all sons of Ellahi Bux and Mst. Sakina widow of Eliahi Bux. This permanent transfer is dated 21st September, 1966. The Tenement No. 368-a, the upper storey was put to auction and purchased by respondent Raisuddin on 18th May, 1971 and this premises was purchased by Noor Mohammad son of Ellahi Bux from Raisuddin on 21st December, 1973. On 15th November 1973, Noor Mohammad son of Ellahi Bux applied for transfer of house/shop in his possession under Settlement Scheme No. VIII, the description of the pro perty given by him was 639-bj

639. This application was rejected by the Deputy Settlement Commissioner vide his order dated 22nd April, 1974 on the ground that the property had already been auctioned in favour of Raisuddin hence the same was not available for fresh disposal. Raisuddr, had purchased Tenement No. 368-b at an auction held (in 12th January, 1968 and the formal transfer order in his favour is dated `219th April, 1974.

3. Following the above petitioners herein who are Mohammad Sharif son of Shamsuddin, Mst. Sakina widow of Ellahi Bux, Mohammad Ibrahim son of Ellahi Bux made an application against the transfer order dated 29th April. 1974 made m favour of Raisuddin, which as aforesaid is of Tenement No. 368-b, before the Settlement Commissioner Though this application is not before me it would appear from the impugned order that it was the case of the petitioners that the property in question in its entirety had been transferred to the petitioners vide. P. T. D. dated 21st September, 1966 but the Deputy Settlement Commissioner without notice to the petitioners gave the upper portion of this property under No. 639-A, in favour of respondent Raisuddin, vide transfer order dated 2-9th April, 1974. The prayer, therefore, was that the subsequent transfer be cancelled. The learned Settlement Commissioner did not agree to do so on the ground that 639-A has already been transferred in favour of Raisuddin who held a P. T. D. which could not in law be reopened by him.

4. It may at once be noticed that the subject matter of transfer order dated 29th April, 1974 was Tenement 368-B and not 639-A. In fact there is no such property or tenement bearing No. 639-A. Tine petitioners expressly challenged the transfer order dated 29th April 1974, the subject matter of which was the Tenement No. 368-B but the Tenement describe is "upper portion" which could as well mean Tenement No. 368-A.

5. Mr. Maroof Ali Khan, the learned counsel for the petitioners contended that what the petitioners alleging was fraud on the part of the respondent Raisuddin for having procured transfer of a tenement which to his knowledge had been earlier transferred in favour of the petitioners and this question, therefore, could have -been gone into notwithstanding a P. T. D. in favour of Raisuddin by the Settlement Commissioner. The learned counsel relies on a Supreme Court decision reported in Mohammad Amvar Khan v. M. A. Wasti, Settlement and Rehabilitation Commissioner and others (1975 S C M R 372), which, prima. facie,-supports his contention. The fraud alleged against Raisuddin has been detailed in para. 3 of the petition which reads as follows :

"That it seems that a portion of the said shop described in para one as shop bearing No. 368 and C. S. No. 639 was given a separate number D. S. No. 368lA, by the respondent No. 2 Deputy Settlement Com missioner Larkana thereafter and was surreptitiously auctioned to the respondent No. 3 Raisuddin for a sum of Rs. 750 (Rupees seven hundred fifty only) for his single bid in a so-called auction held on 12th January 1968, and a transfer order dated 19th April, 1974. (?) is said to have been issued to him. The petitioners knew this only when they received a demand notice dated 23rd May, 1974 from the respondent No. 3, for payment of the rent of their portion. (Copies of the bid sheet dated 12th January, 1968 and T. O. dated 29th April, 1974 are produced and marked `C' and `D.')." (The bracketed words are mine)

6. The petitioners, therefore, persist in their confusion. If the grievance is of tenement bearing No. 368-A, this tenement had been pur chased by Noor Mohammad brother of petitioners Nos. 1 and 2, and son of petitioner No. 2 from the transferee Raisuddin. If, the challenge is to Transfer Order dated 29th April, 1974 then the grievance is in respect of Tenement No. 36&-B, and the question then will be what was the subject matter of the transfer, made in favour of the petitioners under Transfer. Order dated 21st September, 1966 ? Was it No. 368 and C. S. No. 639 as alleged in para one of the petition? As aforesaid C. S. No. 639 constituted of three independent tenements and the petitioners Transfer Order des cribed the property transferred to them as "shop No. 368, C. S. No. 639 Ward 'A', Kanbar, District Larkana". The petitioners, were therefore, never transferred the tenement, a house, bearing No. 368-B, situate on the same survey No.

639. The description given in para. 1 of the petition that they were transferred No. 368 and C. S. No. 639 was to say the least misleading. There was further more an attempt, intended or otherwise, to create confusion of numbers and the fact that there were three separate tenements, 368, 368-a and 368-b and Survey No. 639 was conveniently forgotten.

7. This petition is, therefore, dismissed with costs. M. Y. M. Petition dismissed.