1989 PLP 3018 (MLD)

Rana Sardar Ahmed for Respondent No.

3. A. R. Shaukat for Respondent No.

4. Date of hearing: 18th March, 1989. The dispute in this case relates to transfer of property No.635, Saghir Road, Lahore, Cantt.

2. Briefly, the facts are that property in dispute consisting of two rooms on the ground floor and upper storey was transferred to Mst. Faheeman Respondent Nos. herein, a claimant displaced person against her CH Form, by the Deputy Settlement Commissioner, Circle-VI, Lahore, vide order dated 17-5-1960. Qasim Ali, the predecessor-in-interest of the petitioners was found not entitled to the transfer of the disputed property on the ground that he was an unauthorised occupant, non-claimant and that he did not file a form. Subsequently, the Deputy Settlement Commissioner, Circle-VI, Lahore, agreed with the order dated 22-10 1960 of the Assistant Settlement Commissioner, Lahore Cantonment, Lahore-VI that the property transferred to Mst. Feheeman was wrongly described as "635" instead of "636" and accordingly approved for correction of the Provisional Transfer Order issued to her. Nether Qasim Ali, the predecessor-in-interest of the petitioners nor the petitioners filed any appeal or revision against the aforesaid order before the appropriate Settlement authorities and, therefore, this order attained finality. After a lapse of nearly thirteen years, the petitioners, who are successors-in-interest of Qasim Ali, approached the Deputy Settlement Commissioner, Circle-VI and VIII/Notified Officer claiming transfer of property No.635 under the revised Settlement Scheme NO.VIII. The Deputy Settlement Commissioner rejected their claim on the ground that he could not re-open the case after repeal of the Evacuee Laws as the property in dispute already, stood transferred to Mst. Faheeman respondent.

3. Mr. Muhammad Siddique Butt, learned counsel for the petitioners contended that the petitioners' predecessor-in-interest filed a form on 17-11-1950, but the same was never taken into consideration and the property was transferred to respondent No. 1 without holding a proper inquiry as to the entitlement of the applicants as contemplated by paragraphs Nos.8 and 10 of Settlement Scheme No. I. The petitioners cannot successfully challenge the order of transfer in favour of respondent No.l on the short ground that it attained finality and they never challenged it within a reasonable time by means of appeal or revision. Furthermore, a finding of fact has been recorded by the Deputy Settlement Commissioner that the petitioners' predecessor-in-interest did not file any Form. To rebut this finding, the petitioners have placed certified copy of the extracts from NCH Register of CSC-II maintained by the Settlement Department. This Form does show that on 17-11-1959, Qasim Ali did file an application for transfer of the disputed property. Be that as it may, Qasim Ali was grossly negligent in pursuing the matter before the Settlement authorities and, therefore, the opposite party cannot be panalised for the same. Learned counsel for the petitioners, however, trying to explain the delay, submitted that Qasim Ali died sometime ago and therefore, the matter could not be pursued by his legal heirs. Learned counsel was, however, unable to state that when Qasim Ali died. He further submitted that wife and son of Qasim Ali also died during pendency of the writ petition and, therefore, he is unable to explain the cause of delay. In any event, the matter is hit by the doctrine of past and closed transaction. The case cannot be remanded to the Notified Officer for decision afresh even if Qasim Ali filed application for transfer of the disputed property, as alleged; at this belated stage.

4. It is next contended by learned counsel for the petitioners that respondent No.l has been transferred one shop in the same bazar, as well as, two shops in the disputed property, which was not permissible under the relevant provisions of the repealed Evacuee Laws. Learned counsel for respondent No.2 and legal heirs of respondent No. 1 submitted that prior to partition, there were three properties bearing Nos.634, 635 and 636, but subsequently these properties were merged into two units on the basis of which 'the evacuee owner Lala Narsingh Dass got sanctioned a plan from the Municipal Committee on 30-9-1944 and in consequence thereof the two properties were rebuilt. He denied that he had been transferred three shops and argued that Mst. Faheeman was transferred only two rooms in the ground floor and upper storey of property No. 635, the number of which was later changed as "636".

5. It is not necessary to examine this disputed question of fact in these proceedings. Suffice it to say that in view of the discussion in the preceding paragraph, the impugned transfer in favour of Mst. Faheeman respondent No.l is not liable to be challenged and, therefore, the petitioners have no locus standi to raise this factual controversy. No relief has been claimed against respondents Nos.3 and 4 and they have merely been impleaded as proforma respondents. In view of the above, the writ petition fails and is hereby dismissed, but there shall be no order as to costs. H.B.T./S-439/L Petition dismissed.