P L D 1983 Lahore 86 (PLP)

This writ petition calls in question the order dated 23-6-1981 of the Deputy Settlement Commissioner, Gujranwala.

2. The facts relevant for the disposal of this writ petition are that house No. B-111-75-45, Hafizabad, district Gujranwala, was transferred in favour of respondent No. 2, a claimant displaced person against his CH Form, by order dated 21-11-1959 of the Deputy Settlement Commissioner. Ali Muhammad entered into an agreement of association dated 26-5-1960 (Annexure B) recorded on four rupees non-judicial stamp paper duly attested by an Oath Commissioner, with his brother Muhammad Sharif in which it was stated that both these brothers desire to take the property jointly in equal shares. This document does not show on which date it was duly entered in the relevant register of the Settlement Authorities. However, a finding of fact has been recorded by the learned Deputy Settlement Commissioner in the impugned order dated 23-6-1981 that the agreement of association had been filed in the office on 30-9-1964 vide register No. 268, alongwith a separate application dated 26-5-1960 (Annexure C) addressed to the Deputy Setttement Commissioner for giving effect to the deed of association. No orders were passed on this application. Later however, Muhammad Sharif one of the executants of the deed died on 4-7-191:

6. It appears that neither Ali Muhammad respondent No. 2 nor Muhammad Sharif during his lifetime pursued the matter before the Settlement Authorities for giving effect to the deed of association. It may be further pointed out that Muhammad Sharif left behind one son (petitioner) and three other daughters as legal heirs. After a lapse of 14 years, only one of the legal heirs of the deceased, namely, the petitioner approached the Deputy Settlement Commissioner, by means of an application dated 18-6-1980 for bringing on record the legal heirs of Muhammad Sharif for the purpose of implementation of the deed of association.. Thereupon, the Deputy Settlement Commissioner by order dated 20-9-1980 (Annexure 'C' to Writ Petition No. 587-R/80) issued notice to all the parties for recording their statements regarding the agreement of association. The. petitioner challenged this order in this Court by means of Writ Petition No. 887-R/80. The writ petition was disposed of inter alia with the following observation : "No final order has yet been passed. Admittedly, the association deed though present on the file of the Settlement Authorities was not accepted by any competent authority. The Deputy Settlement Commissioner, therefore, rightly wants to bear all the parties before giving effect to it. I am sure while deciding the case, he will keep the circumstances in view that the amount as stated by learned counsel for the petitioner has already been adjusted from the compensation book of Muhammad Sharyf." In consequence, learned Deputy Settlement Commissioner recorded the statements of all the parties concerned. In view of the statement made before him by Ali Muhammad respondent the original transferee and the three daughters of Muhammad Sharif, the Deputy Settlement Commissioner held that the agreement, in question, was cancelled shortly after its execution and had, therefore, become a dead letter. Accordingly, he rejected the disputed agreement of association vide order dated 23-6-1981. This was followed by a transfer order dated 20-7-1981 in favour of respondent No. 2.

3. Khan Hamid Ali Khan Sherwani learned counsel for the petitioner contends that in view of the instructions contained in para. 6 of the Press Note dated 13-2-1960 (printed at page 393 of the new Settlement Manual), the Deputy Settlement Commissioner was under a legal obligation to give effect to the agreement as its execution was never denied by the parties. It is submitted that the .stand taken by respondent No. 2 vide application dated 8-7-1980 (Annexure D) was to the effect that the deed of association was in existence and he would take necessary legal action for its cancellation. This being so, it is submitted that the Deputy . Settlement Commissioner had no option but to accept the deed in terms of the aforesaid instructions coupled with the stand taken by the respondent himself in the said application. It is further submitted that the Deputy Settlement Commissioner had no jurisdiction to reject the deed of association, in terms of the instructions contained in memo. dated 7-3-1960 published at page 396 of the new Settlement Manual which says that the power to allow withdrawal, modification or replacement of agreement of association can only be done with the approval of the Additional Settlement Commissioner. This being so, it is submitted that the mere fact that the remaining heirs of Muhammad Sharif wanted cancellation of the deed of association, would not ipso facto confer jurisdiction on the Deputy Settlement Commissioner to reject the deed. Lastly, it is contended that since the transfer order had not been issued in favour of respondent No. 2 till 1982, no prejudice whatsoever has been caused to him on account of failure of the petitioner in not approaching the Court within a reasonable time. The submission is that with regard to a part of the property in question, litigation was pending before the Settlement Authorities which ended in 1979 and about a year thereafter, the petitioner approached the Settlement Authority for the redress of his grievance. Khan Hamid Ali Khan Sherwani submits that in view of the dictum laid down in Begum Shams-un-Nisa v. Said Akbar Abbasi and another (1), it was incumbent upon the Settlement Authorities to give effect to the agreement of association as the same was recorded in accordance with the provisions contained in para. 6 of the Press Note dated 13-2-1960 even without hearing the executants to . the deed of association. He reiterated that in any case, in view of the stand taken by respondent No. 2 in his application (Annexure 'D') he was estopped to take up the plea before the Deputy Settlement Commissioner that the deed had been cancelled.

4. In Begum Shams-un-Nisa's case cited by the learned counsel for the petitioner, no finding at all has been given as to the scope of the provisions of paragraph 6 of the said instructions. On the other hand, Honourable Nasim Has-in Shah, J. after recording the contention of Major Ishaq Muhammad Khan, Advocate, as to the scope of para. 6 of the said instructions observed that this issue was not important to be decided in that case, and could be resolved to a more appropriate case. In the - precedent case, the original transferee of the shop under the terms and conditions of the agreement of association surrendered all his rights and interests in favour of his associatee who was to pay the transfer price from her verified claim. The Deputy Settlement Commissioner accepted the agreement of association on 1-4-1960. Thereafter, Provisional Transfer (1) P L D 1982 S C 413, Order was issued on 18-7-1961, followed by P. T. D. dated 10-2-1962. The original transferee became tenant of the associatee and started paying rent to him. He also filed application. for fixation of fair rent before the Rent Controller, Rawalpindi Cantonment Area. Subsequently, however, he changed his attitude and applied to the Settlement Commissioner, Rawalpindi, for cancellation of the agreement of association dated 22-3-1960, inter alia on the ground that the agreement of association was fraudulently typed on a stamp paper and he never, agreed to relinquish his proprietary rights. The Settlement Commissioner accepted the application on the ground that it was forged and that the deed was accepted without recording the statement of the executant who allegedly surrendered his valuable right. The Chief Settlement Commissioner in the exercise of his powers under section 9 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 set aside the order of the Settlement Commissioner in cancelling the agreement deed. This order was quashed by the High Court in the exercise of writ jurisdiction. The Supreme Court granted leave against this order and ultimately accepted the appeal by setting aside the order of the High Court on the ground that the order of the Settlement Commissioner cancelling the agreement of association was without jurisdiction and the Chief Settlement Commissioner even if assumed to be not competent in law to declare the order of the Settlement Commissioner as without lawful authority in exercise of his power under section 9 (3) of Act No. XXVIII of 1958, nevertheless the order was a just and proper one and, therefore, the High Court ought not to have issued the writ in the facts and circumstances of that case. The facts of the present case are distinguishable. The agreement of association has not been accepted at all by the Deputy Settlement Commissioner. This was done before the issuance of P. T. O. and P. T. D. to which no exception can be taken in the facts of the present case. It is, therefore, difficult to hold that the judgment cited by Khan Hamid Ali Khan Sherwani is an authority for the proposition of law canvassed by him. In Msr. Fatima and 7 others v. Settlement Commissioner and 3 others (P L D 1973 Note 23 at p. 34), it was held that the mere submission of the deed of association before the Deputy Settlement Commissioner will not amount to its acceptance and the Deputy Settlement Commissioner i A empowered to examine whether the execution of the deed is admitted by the parties or not. I am in respectful agreement with the views expressed in the precedent case. In the instant case, Muhammad Sharif, the co-executant of the agreement of association never made a statement before the Settlement Authorities expressing therein his willingness to abide by the deed of association. So was the case of respondent No.

2. After Muhammad Sharif' death, all the legal heirs except the petitioner stated before the Deputy Settlement Commissioner that the deed was not intended to be acted upon B because their father had cancelled it during his lifetime on account of pendency of litigation about part of the disputed property with Kalan Khan. The petitioner, therefore, cannot be permitted to reagitate this issue after a lapse of 14,years.

5. The petitioner has prayed in the writ petition that the Deputy Settlement Commissioner be ordered that the agreement of association be acted upon. This was also. his stand before the Deputy Settlement Commissioner, but the other co-heirs of Muhammad Sharif were not willing for the implementation of the deed. The petitioner never demanded that he be given only the share in the property allegedly inherited by him. - In fact the petitioner had C not acquired any vested right merely on the submission of the agreement of association. The right accrues in property only when the competent authority accepts the agreement of association. This permission was never ranted and therefore, no question arose of the petitioner's inheriting the share to the extent of his entitlement under the law of inheritance. Furthermore, it was only during the course of arguments that the learned counsel took up the plea that the association deed be ordered to be implemented only to the extent of the share inherited by the petitioner. It is too late for the petitioner to take up this stand at this stage when the Transfer Order has already been issued to respondent No.

2. Even otherwise it is not within I the competence of this Court in the exercise of constitutional jurisdiction to`D order splitting up a document by invoking the doctrine of severability. This prayer should have been made before the Deputy Settlement Commissioner. G

6. As regards the contention of the learned counsel for the petitioner that the rejection of the deed of association by the Deputy Settlement Commissioner was without jurisdiction, in terms of the instructions dated 7-3-1960 under which the Additional Settlement Commissioner alone was competent to allow withdrawal, modification or replacement of association agreement, suffice it to say that this point was not taken before the Deputy Settlement Commissioner or in the first round of litigation in this Court roll, Writ Petition No. 887-R/80. The petitioner is, therefore, estopped by his conduct to raise this point in the exercise of writ jurisdiction. Even otherwise] I am inclined to agree with the submission made by Mr. S. M. Nasim, learned counsel for the contesting respondent that the instructions dated 7-3-1961 come into play only when an agreement of association has been accepted bylF the Settlement Authorities and later allowed to be withdrawn in exceptions fl cases by the order of Additional Settlement Commissioner. In the instant case, as earlier pointed out, before the acceptance of the deed of association, successors-in-interest of Muhammad Sharif except the petitioner were not willing for the implementation of the deed of association. The Deputy Settlement Commissioner could not force the remaining legal heirs to honour the agreement against their wishes. The question of estoppel raised by the learned counsel for the petitioner is untenable. Perusal of Annexure `D' would show that respondent No. 2 opposed the application for bringing on record the legal heirs of Muhammad Sharif and also resisted the implementation of the agreement of association in the following terms : Later in his statement, he categorically stated that the deed of association has been cancelled. The mere fact that he expressed his intention to take legal action for formal cancellation of the deed. could not stand in his way to oppose the acceptance of the deed of association by the Deputy Settlement Commissioner. No question of estoppel was, therefore, involved. It was within the competence of the Deputy Settlement Commissioner to accept the agreement of association or to reject the same, keeping in view the evidence adduced before him. The discretion exercised by him could neither be described fanciful nor arbitrary. The same is, therefore, not open to interference in the exercise of constitutional jurisdiction. For the reasons stated above, the writ petition fails and is hereby dismissed, but in the circumstances of the case, there shall be no order as to costs. S, A, H.??????????? Petition dismissed.