1991 PLP 259 (SCMR)

ABDUL QADEER CHAUDHRY, J: ‑‑This appeal by leave of the Court has arisen out of the following facts: According to the appellants they applied for a plot of land in Lyallpur on 29‑11‑1959 under Settlement Scheme No.VIII as a building site. They claimed to have been in possession of the plot and constructed a house on it. The case of the respondent No.3 is that Shaikh Muhammad Din, the predecessor‑in‑interest alongwith two others was transferred property No.P.53 by the Deputy Settlement Commissioner, Lyallpur on 28‑11‑1968. A writ petition was filed by one Bashir Ahmad against Tufail Muhammad son of Muhammad Din and the High Court on 12‑3‑1970 remanded the case to the Additional Settlement Commissioner for decision after determining the character of the property being agricultural or otherwise. Another Writ Petition was filed by Malik Fazal Haq against Tufail Muhammad etc. claiming also that another piece of about 7 kanals stood allotted to them. The High Court on 13‑10‑1972 accepted the said petition and also remanded the case to the Additional Settlement Commissioner for fresh decision after deciding the nature of the property. The operative part of the order reads as follows:‑ "The case is remanded to the Additional Settlement Commissioner, Lyallpur, for the purpose of deciding the nature of the land in dispute first after hearing the parties and then make necessary order in accordance with law." After the remand by the High Court, respondent No.2 Haji Nazir Ahmad and the appellant filed an application before the Additional Settlement Commissioner for being impleaded as party. (Each of the respondents claimed transfer of property). An objection was raised by respondent No.3 on their application but the objection was rejected and the respondent No.2 and the appellant were impleaded as party by the Additional Settlement Comnlissioner by the order dated 22‑6‑1973. The respondent No.3 filed a Constitution Petition against the order of the Additional Settlement Commissioner. The High Court accepted the petition of respondent No.3 and the order of the Additional Settlement Commissioner dated 22‑6‑1973 was set aside, being wit' pout lawful authority and of no legal effect. The case was remanded to the. Additional Settlement Commissioner for decision afresh. The appellants being aggrieved challenged the order of the High Court and Leave to Appeal Was granted by this Court to consider whether the High Court was competent in its limited Constitutional jurisdiction to interfere with the order of the Settlement Department deciding the question of impleading of necessary or proper parties in a dispute about the transfer of property. Learned counsel for the appellants has submitted that once the case had been remanded to the Additional Settlement Commissioner for deciding the status of the property, he had the jurisdiction to add a party to the proceedings. The order was with jurisdiction and the High Court had not exercised its jurisdiction legally in setting aside the impugned order. This contention has force: The Additional Settlement Commissioner while adding the appellant as a party to the proceedings observed that "if they are not impleaded as party their rights will never be determined and their case would be jeopardized and multiple litigation will ensue". These observations have not been challenged before the High Court being contrary to law. Learned counsel for the unofficial respondents submitted that the appellants are not the necessary parties, they are trespassers; they occupied the land in 1973 by force and they are not entitled to the transfer of the plot in their possession. He further stated that the case of the appellants rests on a report dated 21‑10‑1964 of Nazar Muhammad, Settlement Inspector, showing that the appellants had raised the construction on the plot but Nazar Muhammad had sworn an affidavit that he had not submitted such report. In this appeal, we are not resolving the factual controversy. The entitlement of contesting parties is outside the scope of present appeal. The point involved is whether the Additional Settlement Commissioner had the jurisdiction to implead parties in the matter pending before him. The High Court while remanding the case nowhere stated that a new interested party should not be added to the proceedings. The learned counsel has not disputed that the Additional Settlement Commissioner had the jurisdiction to implead a necessary party to the proceedings. The High Court under Article 199 of the Constitution would examine if an order challenged before it is passed with or without lawful authority. The entitlement for the transfer of the disputed property would be determined after proper investigation and inquiry. The factual controversy raised by the learned counsel for the respondents would also be determined by the competent forum while dealing with such matter. The respondents would have fair opportunity before the proper authority to agitate that the appellants have no locus standi to get the transfer of the property in question and that they are the trespassers. The learned High Court in Para 10 of the. judgment has observed that the first requirement of the inquiry to be made by the Additional Settlement Commissioner is in relation to the determination of the nature of the land. The scope of the remand order is limited. The provisions of Order I rule 10, C.P.C. are applicable to the proceedings before the Additional Settlement Commissioner. The learned High Court has not disputed the proposition that the Additional Settlement Commissioner had the authority to implead a necessary party. Under Order I rule 10(2), C.P.C. a Court has the jurisdiction to add a party for proper adjudication of the dispute between the parties in whose absence no effective order can be passed. The proposed party is one whose interest is likely to be prejudiced. Learned counsel for the appellants has referred to Altaf Hussain v. Shabbir Hussain P L D 1961 (W.P.) Lahore 449; Gul Muhammad v. Settlement Commissioner P L D 1968 Kar. 669; Apparao Baburao v. Vithal Govind A I R 1931 Born. 408; Kalenthar Animal v. Ma Mi A I R 1926 Rangoon 9 in support of his contention. The Additional Settlement Commissioner has exercised the powers vested in him. The order passed by him was not without lawful authority. The learned High Court had in such circumstances no valid reason to annul the order of the Additional Settlement Commissioner. , The upshot of the above discussion is that this appeal is allowed, the judgment of the High Court dated 25‑11‑1974 is set aside and the order of the Additional Settlement Commissioner dated 22‑6‑1973 is restored. The parties to bear their own costs. AA./A‑795/S Appeal allowed.