1989SCMR743 (PLP)

NASIM 14ASAN SHAH, J.‑‑The dispute in this appeal relates to a double‑storeyed house bearing No.S‑1‑17‑S‑1 situate at Gowalmandi, Lahore. The first‑floor, except for one room, which was in occupation of respondent Muhammad Dcen, was occupied by the appellants and a part of the ground floor was occupied by one Muhammad Shafi, a local. Muhammad Shafi applied for the transfer of the portion in his possession, but the P.T.O. dated 31‑5‑1961 issued in his favour showed that he was transferred full share in the property. 1n view of this ambiguity and in the absence of any judicial order transferring the property to Muhammad Shaf being available, Muhammad Deen (respondent) thinking, that Muhammad Shafi had also been transferred the first floor, challenged this P.T.O. by way of an appeal in June, 1905. But this was dismissed by the Additional Settlement Commissioner on the short ground that it was barred by time and because the transferee Muhammad Shafi had also obtained a P.T.D. dated 15‑12‑1961. A revision by respondent Muhammad Deen also failed for the additional reason that he failed to prove that he had applied for transfer of the house. This order was challenged by Muhammad Deen in the Lahore High Court vide Writ Petition No.687‑R of 1909 which was allowed by the learned Single Judge in these terms:‑‑ "At the very outset the learned counsel for respondent No.4 (Muhammad Shafi) submitted that his client had been transferred only the residential portion on the ground floor and the un12er portion where the petitioner (Muhammad Deen) is residine is still available. The learned counsel for the petitioner consulted his client and has stated before me that his client will be satisfied if the upper portion is ordered to be transferred to him. The learned counsel for the respondent also agreed with the same and stated that his client has no objection to this proposal. As the upper portion has not yet been disposed of and as the petitioncr is in possession thereof, the same Should have been transferred to him by the Settlement authority against his form NCH The petitioner would even otherwise be entitled under Settlement Scheme No.V11I to its transfer. In view of the statements made by the learned counsel at the bar and in view of the fact that the upper portion is available I accent this petition and direct the Settlement Authorities to transfer the upper portion along with the stairs to the petitioner. The Permanent Transfer Deed issued in favour of respondent No.4 shall, however, be maintained as it is. There will be no order as to costs." (underlining is ours) In pursuance of the above order, which was passed on 7‑3‑1975, respondent Muhammad Deen was transferred the upper portion of the property by the High Court. In the meanwhile, however, the appellants herein had filed applications for transfer of the portions of the upper floor in their possession under Settlement Scheme No.VIII. Accordingly, when the order of the High Court dated 7‑3‑1975 was received by the Settlement authorities a detailed report was compiled by the Settlement Inspector dated 1‑8‑1975 and the following part of which may usefully be reproduced below:‑‑ "Worthy DSC‑11 may kindly refer to his orders dated 28‑7‑1975 on the application of Muhammad Din requesting for intimation of transfer price of the upper portion of the property noted above, transferred to him under the High Court order dated 7‑3‑1975. I have gone through the relevant file placed below and also visited the spot. It is a double‑storeyed building. One portion of the ground‑floor is occupied by an Industrial concern, i.e. a Soap Factory which has already been transferred to Atta Muhammad etc. and the other portion of the ground floor was transferred to Ch. Muhammad Shafi, a local, occupant of this portion. The upper portion i.e. 1st Floor which was occupied by several persons mentioned as under including the applicant Muhammad Din, was not disposed of.‑‑

1. Muhammad Younis 1 room His deceased father Muhammad son of Muhammad Sharif filed Form No. RSS‑ Sharif VIII/261 dated 12‑10‑1973.

2. Muhammad Ismail 1 room N.C.H. Form No. 311/17‑10‑1966 under Settlement Scheme VIII and RSS‑VIII/192 dated 12‑10‑73. 3 Muhammad Din 1 room N.C.H. form under SSI diarised at No.983 dated 16‑12‑1959 in the AS&RC office.

4. Ghulam Mustafa 1 room N.C.H. Form No.4499 dated 8‑10 1966 under RSS.VIII.

5. Muhammad Rafiq 1 room Form No.RSS‑VIII/603 under RSS‑VIII dated 27‑10‑73.

6. Muhammad Bashir 1 room No Form

7. Allah Rakha 1 room Form No.602/27‑10‑73 under RSS‑VIII" After referring to the order of the High Court dated 7‑3‑1975 it was submitted by the Settlement Inspector. "In view of the directions of the High Court transfer orders for the transfer of upper portion of the property in question in favour of Muhammad Dm are solicited." 'The Deputy Settlement Commissioner, by his order dated 3‑9‑1975, following the‑ clear directions of the High Court transferred the entire upper portion to Muhammad Deen along with the stairs and rejected the appellants' application for transfer under Settlement Scheme No. VIII. The appellants then filed Writ Petition No.352‑R of 1976 challenging the aforesaid order of the Deputy Settlement Commissioner which was dismissed by the learned Single Judge in limine on 16‑1‑1976 on the view that the property stood transferred to Muhammad Deen under Settlement Scheme No. l and therefore, was not available for disposal under Settlement Scheme NO.VIII. The order was maintained by a Division Bench dismissing the Inter‑Court Appeal of the appellants on 20‑4‑1976. Hence this appeal, by leave of this Court. The appellants' contention is that Muhammad Deen had not filed am N.C.H. Form under Settlement Scheme No.l and that this aspect was touched upon only casually by the learned Single Judge by merely making a reference to earlier petition filed by Muhammad Deen against Muhammad Shari in which it was alleged that Muhammad Deen had filed an N.C.H. Form. In the Inter‑Couri Appeal the. Division Bench maintained the order made by the learned Single Judge largely on the ground that the acceptance of the earlier petition filed by Muhammad Deen implied that the Court was satisfied that he was an applicant for transfer of the property and that since the said earlier order of the High Court had attained finality it could not again become the subject‑matter of challenge in the subsequent writ petition. The submission is that the observations with regard to the filing of an N.C.H. Form by Muhammad Deen under Settlement Scheme No.I were not founded on any material but were based on mere inferences and assumptions. There is force in this contention. The question whether or not respondent Muhammad Deen had filed in N.C.H. Form had not been determined by the High Court in Writ Petition No.fi87‑R of 1969 which was disposed of more or less by the consent of Muhammad Shafi, the contesting respondent in that petition, who admitted that his claim was confined to the transfer of a portion of the ground‑floor only and that the first floor was available for transfer to Muhammad Deen and he had no objection if the same was transferred to hire. The Deputy Settlement Commissioner also does not appear to have applied his mind to the question whether or not respondent Muhammad Deen had filed a N.C.H. Form for what impressed hire was that there was a clear direction from the High Court to transfer the upper storey to Muhammad Deen and, accordingly, he proceeded to do so. The appellants were not a party in the previous Writ Petition No.687‑R of 1969 and apart from the contention that the question whether or not an N.C.H. Form had been filed by Muhammad Deen had been decided therein the appellants not being the parties to that petition were not bound by its result. In fact, the question that Muhammad Deen had not filed any N.C.H. Form under Settlement Scheme No.I already stood decided by the Settlement Commissioner in his revisional order dated 22‑3‑1968, which was challenged in the earlier Writ Petition No.687‑R of 1969. In this order the learned Settlement Commissioner had rejected the revision of the respondent (Muhammad Deen) against the P:T.O. issued to Muhammad Shaf observing: "The appeal was filed on 14‑6‑1963 while the P.T.O. had been issued in favour of the respondent (Muhammad Shafi) on 31‑5‑1961. It is, therefore, certain that the order in favour of the respondent must have been passed somewhere before 1961. Had the petitioner (Muhammad Deen) applied for the transfer of the house he would have certainly pursued his application for transfer of the house and would have beer vigilant about the disposal of the house:" (Underlining is ours). In conclusion it was observed:‑‑ "His mere submission is that he had preference in transfer of the house over the respondent who is a local and he is himself a displaced person. This argument could have force if the petitioner had proved _that he had applied for the transfer of the house and that he had appealed against the order of the Deputy Settlement Commissioner within the` prescribed limit." (Underlining is ours). The learned Single Judge in the High Court while disposing of the said writ petition of Muhammad Deen (W.P. No.687‑R of 1969) did not upset this finding of the Settlement Commissioner. In fact, the observation of the learned Judge that "the petitioner would even otherwise be entitled under Settlement Scheme NO.VIII to its transfer" indicates that the learned Judge did not record any categorical finding on the question that Muhammad Deen had submitted tile N.C.H. Form under Settlement Scheme No. l. On the other hand, hi order was only a consent order, based on the agreement expressed by the parties Furthermore, the leaned Judges in the High Court were not right in observing that the property was not "available" when the appellant' filed their forms for transfer. These forms have been filed between the dates e‑10‑1966 to 27‑10‑1973 whereas the upper portion was ordered to be transferred m favour o f Muhammad Deen respondent for the first time on 7‑3‑1975 when the High Court ordered its transfer to him while disposing of Writ Petition No.687‑R‑of 1969. In this very order, it is repeatedly pointed out that Muhammad Shafi has been transferred only the residential portion on the ground floor and the upper portion is still available for transfer. Thus, the portions in the upper storey in occupation of the appellants were available for transfer when they submitted thc'r forms transfer under Settlement Scheme No.V

111. The upshot is that this appeal succeeds. The orders of the Courts below are hereby set aside. The appellants and Muhammad Deen (respondent) will be transferred the portions in their possession and all of them will be entitled to the use of the staircase jointly. The Settlement authorities will issue transfer documents in their favour accordingly. No costs. A.A./N‑126/S Appel accepted,