1996 PLP 1076 (CLC)

TANVIR AHMAD KHAN, J.‑‑‑This judgment shall dispose of L.P.A. No.76‑71 titled Mst. Zubaida Begum v. Muhammad Ramzan, etc. and L.P.A. No.77‑71 titled Muhammad Ramzan v. Mst. Zubaida Begum, etc., as both of them are directed against the judgment of a learned Single Judge dated 4‑2‑1971 rendered in W.P. No.853‑R‑64 by means of which orders dated 28‑2‑1963 and 24‑2‑1964 passed respectively by the Additional Settlement and Rehabilitation Commissioner and Settlement and Rehabilitation Commissioner, Lahore Division, Lahore holding the property as one unit/one shop were declared to be without lawful authority and of no consequence by cancelling the transfer of Unit "A" of Muhammad Ramzan as he had already got one shop i.e. Unit "B" and also declined the prayer of Mst. Zubaida Begum for the transfer of Unit "A". Facts briefly are that the dispute pertains to Property No.B‑XII‑17‑S 39-A and B‑XII‑17‑S‑39‑B, situated at Ganj Mandi, Gujranwala. The Deputy Settlement Commissioner through order dated 13‑10‑1960 transferred Unit "A" to Mst. Zubaida Begum a claimant displaced person on the basis of the claim of her husband Muhammad Yousuf. Unit "B" was transferred in the name of Muhammad Ramzan. The latter filed an appeal. Mr. Saeed‑uz‑Zaman, Additional Settlement and Rehabilitation Commissioner through his order dated 27‑3‑1962 held that the property had two independent shops; one shop having already been allotted to Muhammad Ramzan, as such, he was not entitled under the law to the other independent portion. As far as the allotment of Unit "A" to Mst. Zubaida Begum was concerned, it. was held that the same could not have been allotted to her because it was already allotted to Riaz Ahmad and Nazar Muhammad of M/s. Riaz & Co. Her Husband Muhammad Yousuf was neither allotted nor was in possession. After holding this the allotment of Portion "A" to Mst. Zubaida Begum was set aside and case was remanded to DSC, Gujranwala to dispose of this portion on merits. It was clearly held that the property, constituted two independent units. Muhammad Ramzan filed a revision petition against this order which he subsequently withdrew on 5‑1‑1963. The Deputy Settlement Commissioner, Gujranwala, on remand took up the matter and by means of his order dated 6‑7‑1962 held that Mst. Zubaida Begum's husband, namely,. Muhammad Yousuf who was a partner in the firm of M/s. Riaz & Company was deemed to be in possession and as such, was eligible for transfer of Portion "A". Accordingly he transferred 39‑A to Mst. Zubaida Begum. Muhammad Ramzan filed an appeal which was accepted by Additional Settlement and Rehabilitation Commissioner through his order dated 28‑2‑1963. He held that he had already through his previous order dated 27‑3‑1962 completely shut the door of Mst. Zubaida Begum, as such, her case could not have been re‑opened. According to him, even on merits the possession of Muhammad Yousuf was not established, as such the transfer order from the name of Mst. Zubaida Begum was set at naught. However, as regards his previous order treating two shops as an independent unit he contradicted himself of holding it a single unit and transferred the whole property to Muhammad Ramzen. Mst. Zubaida Begum filed a revision petition which was dismissed by Settlement and Rehabilitation Commissioner, Lahore through order dated 24‑2‑1964. Hence she filed Constitutional Petition No.853‑R‑

64. A learned Single Judge through the impugned judgment dated 4‑2‑1971 set aside the finding of the Additional Settlement and Rehabilitation Commissioner in second round of litigation to the extent of declaring it one unit and on this basis transferring the whole property to Muhammad Ramzan. Resultantly Portion "A" transferred to him was cancelled. However, as regards the plea of Mst. Zubaida Begum for the transfer of Portion "A" was concerned that was repelled and it was held that the question of fact of the possession of her husband Muhammad Yousuf was not established, as such, she was not entitled to transfer of the same. Mst. Zubaida Begum as well as Muhammad Ramzan both aggrieved of this order of the learned Single Judge filed L.P.A. No.76‑71 and L.P.A. 77‑71 respectively. We have heard learned counsel for .the parties and have gone through the entire documents appended with these appeals. We have noticed that Muhammad Ramzan was transferred 39‑B, an independent unit, which transfer order was upheld by the Additional Settlement and Rehabilitation Commissioner through his judgment dated 27‑3‑1962 in the first round of litigation. In this order the Additional Settlement and Rehabilitation Commissioner held that the disputed property has got two independent units, as such, he was entitled to only one shop. Muhammad Ramzan challenged this order through revision petition which he‑ himself withdrew on 5‑1‑1963. In this background the order dated 27‑3‑1962 could not have been modified by same learned Additional Settlement and Rehabilitation Commissioner in second round of litigation by taking a different view and declaring it a single unit. The second judgment of the Additional Settlement and Rehabilitation Commissioner dated 28‑2‑1963 through which Muhammad Ramzan was transferred the whole property treating it a single unit was hit by the principle of res judicata. Even otherwise Muhammad Ramzan could have secured only one shop/one independent unit and not more under the Settlement Scheme. Reliance in this respect is placed upon Dr. Faiz Muhammad v. Chief Settlement Commissioner (PLD 1973 Lahore 250) and Mst. Bashir Bano v. Chief Settlement Commissioner (PLD 1967 Lahore 786). The order of Additional Settlement and Rehabilitation Commissioner dated 27‑3 1962 was final so far as the question of division of property was concerned because it was clearly held by him that the property consisted of two units. i.e. two shops and it was on that basis he held Muhammad Ramzan having obtained one shop could not lay claim to other, namely, Unit "A". In this view of the matter there is no force in the arguments advanced on behalf of Muhammad Ramzan particularly so when the findings of Additional Settlement and Rehabilitation Commissioner declaring it two independent units attained finality. The revision challenging the same was withdrawn by Muhammad Ramzan himself on 5‑1‑1963. As far as the plea of Mst. Zubaida Begum is concerned, that too has got no force. All the forums of the Settlement Authorities determined it as a question of fact that Mst. Zubaida Begum nor her husband was shown to be in possession of the disputed property. Nothing has been brought on record to dispel the view formed by the Settlement Authorities. This being the position both the appeals are dismissed with no order as to costs. H.B.T./Z‑149/L LPA dismissed.