P L D 1983 Supreme Court 337 (PLP)

'MUHAMMAD AFZAL ZULLAH, J:-This appeal through special leave of this Court is directed against the judgment dated 18-2-1976 of the Lahore High Court whereby, a writ petition arising out of an urban settlement matter was "disposed of" with the observation that "the parties may, therefore, get this matter settled in proper, proceedings if they so desire"-meaning/thereby that the question involved could be settled through a resort to the Civil Court because the Settlement Authorities had already finally decided it through issuance of the P. T. Ds. The petition was converted into an appeal to consider the question l. to right of use of the roof of a property transferred under the Urban Settlement Law and the further question whether the parties could in this behalf be referred to Civil Court. Although the entire case has a chequered history it would suffice, for the limited question involved herein, to state that a big composite property including shops-and residential part stands transferred to different parties. The appellants are transferees of a shop on the ground floor while the respondents are transferees of first floor accommodation on some shops adjacent to the shop transferred to the appellants. While the claim of the appellants is that the shop transferred to them includes both the sides of the roof (the ceiling side and the sky side), the respondent's case is that the sky side of the roof on the shop transrerred to the appeliants belongs to them as a courtyard of the accommodation in the first floor above the shops adjacent to the appellants' shop. They also claim the use of an alledged latrine upon the disputed roof. The dispute having become a subject-matter of serious contest between the parties was once brought before a civil Court but without any tangible results because it was finally held on 15-10-1969 by a learned Additional District Judge that "the present dispute fell within the exclusive jurisdiction of the Settlement Authorities". The question was reagitated in the settlement arena wherein, three orders are relevant in the present consideration. A Deputy Settlement Commissioner in his order dated 11-3-1970 while accepting that the shop transferred to the appellants when originally separated and put to auction carried th a description that it was "with open roof". It was also noticed in this order that an earlier order dated 8-4-1967 of the D. S. C., whereby the shop was on failure of the auction sale transferred to the appellants contained the observation that "the roof of the shop was mentioned as vacant". Notwithstanding the foregoing position of the transfer of the "vacant" and "open roof" as included in the shop transferred to the appellants, by virtue of the order dated 8-4-1967, the D. S. C. in the subsequent order dated 11-3-1970 included the roof in the transfer documents of the respondents on consideration of the grounds of inconvenience to them. This order of the D. S. C. was set aside in appeal on 4-8=1971 by an Additional Settlement Commissioner through a well-considered and elaborate judgment reaching the conclusion that "from the record and facts narrated above the roof is already demarcated and Maqbool Ahmad etc. (the appellants herein) have been transferred the roof which is lying vacant over the shop transferred in their name by the order of the Deputy Settlement Commissioner dated 11-3-1970 is set aside . . . . . . ." This appellate order of the Additional Settlement Commissioner was upheld on 17-7-1973 in a revision filed by the respondents. They then moved the High Court in its writ jurisdiction which, as already noted, was disposed of with the observation that the parties might approach the civ21 Court. The precise question requiring determination is whether the decision of the Settlement Authorities (whether they are treated as orders on "demarcation" proceedings or otherwise determining the extent of the permanent p transfer deeds issued to the contesting parties) in respect of the inclusion of the roof on the shop in dispute in the P. T. D. of one or the other party, as done in this case ultimately in favour of the appellants, was without lawful authority. The learned Single Judge in the High Court was of the view that the Settlement Authorities had no such jurisdiction after the issuance of the P. T. D. Learned counsel for the appellants, in his effort to justify the assumption of jurisdiction in this case by the Settlement Authorities relied on a recent decision of this Court reported in Haji Muhammad v. Haji Habib and 3 others (N L R 1983 U C 5), wherein a Bench of this Court including one of us (Abdul Kadir Shaixh, J.) held that clarification of exact portions of property transferred to parties under P. T. Ds. issued to them falls within the jurisdiction of the Settlement Authorities arid that the principle that the Settlement Authorities become fences official after the issuance of the P. T. D. could not be attracted in such cases. Learned counsel for the respondents contended that the view taken by a Bench of two Judges of this Court in the case of Haji. Muhammad was not approved by a larger Bench in "Chaudhry Abdul Haque v. Mst. Mustojab Bano and others (1982 S C M R 1103) wherein it was held that after the issuance of the P. T. D. the property went out of the compensation pool and the Settlement Authorities became functus officio to determine and demarcate the properties except to the extent provided for in the Permanent Transter Rules. This indeed was re-iteration of the view expressed in an earlier judgment of this Court namely S. An war Hussain Sani v. Sarfraz Ahmad and 2 others (P L D 1971 S C 669), which had also been referred to and relied upon in both the afore-noted decisions in the cases of Haji Muhammad and Chaudhry Abdul Haque. In reality as would be presently seen there was not even an apparent inconsistency which learned counsel for the respondents thought existed, to be resolved in his favour. The position it appears now stands finally and fully settled in the case of Mst. Sardar Begum v. Sub-Mpj (Rtd.) Aziz Ahmad and 9 others (1983 S C M R 90) ; wherein again the basic judgment of this Court in Anwar Hussain's case was re-interpreted with the observation to the effect that whenever there is dispute between the transferees of separate properties in regard to a particular portion of the building, the Settlement. Authorities were competent to determine question and interpret the order of transfer in each case "by demarcation of portions of building included in the respective transfer order". This principle however, it was further held, was not attracted in the case before the Court (of Mst. Sardar Begum) ; because it involved the partition of a property which was "jointly transferred in specified shares to the parties. There was no question of demarcating the respective property separately transferred to each party". Thus, for purpose of partition in that case the judgment of the High Court to the effect that the Settlement Authorities had no jurisdiction to partition the property, was upheld. The latest decision of this Court and that too by a large Bench thus, does not support the proposition sought to be canvassed from the respondents' side that in all cases after the issuance of the P. T. D. the Settlement Authorities become functus officio, to make any type of demarcation. It would of course depend upon the circumstances of each case as is illustrated by various examples which were presented by the facts and circumstances of the cases in the afore-noted decisions of this Court. It would be of advantage to mention here that one of the, matters which came for adjudication before this Court in the basic ruling in Anwar Hussain's case related to a controversy about the transfer of a roof similar to the one involved in this case. It was held that it was within the jurisdiction of the Settlement Authorities to determine and declare whether or not the roof of a transferred property was included or not, in the transfer of the property itself. In the said case this question was left open to be decided by the Settlement Authorities with of course a very weighty observation that ordinarily the roof shall be deemed to have been transferred with the property over which it stands ; though, an exception could be made with regard to the user of the upper side of the roof in circumstances of an.v peculiar case. In this case however no further reference is necessary to the Settlement Authorities because the orders of the Additional Settlement Commissioner dated 4-8-!971 and of the Settlement Commissioner dated 17-7-1973 impugned in the High Court had finally determined, even if they be treated as orders of demarcation, that the upper side of the roof on the shop transferred to the appellants was included in the transfer orders (including the P: T. D.) made in favour of the appellants. The learned Judge in the High Court with respect, it is pointed out did- not notice that the civil Court having already declined exercise of jurisdiction in this case the High Court in writ jurisdiction without setting aside the judgment of the civil Court, could not refer the parties again for adjudication before the civil Court. The principle of res judicata would have barred any such proceedings. On the other hand the matter as discussed above fell within the jurisdiction of the Settlement Authorities,: who having decided the same there was no justification for the High Court to interfere with the orders impugned before it. The judgment of the High Court is set aside and the orders dated 11-3-1970 and 17-7-1973 of the Settlement Authorities are restored. There shall however be no order as to cost. S. Q.??????????????????????????????????????????????????????????????? Appeal accepted.