2003 PLP 2093 (YLR)

3. After framing issues and recording evidence thereon, trial Court decreed the plaintiff's suit on 13-7-1978.

4. Against the said decree defendant's appeal was accepted by Additional District Judge, D.G. Khan on 14-3-1979. It is mentioned in this judgment that on the application of defendant the disputed property was inspected at the spot by Deputy Settlement Commissioner who passed an order on 16-2-1966 (Exh.D.2) that Houses Nos.65 and 78 were actually one property at the spot which is under occupation of Mst. Naseeban who is willing to pay price of Property No.65 in addition to the price of Property No.78, therefore, on payment of Rs.640 (price of Property No.65) the entire Properties Nos.65 and 78 total measuring 7-1/2 Marlas should be considered transferred to Mst. Naseeban and the amount paid by Manzoor Hussain as transfer price of Property No.65 through adjustment from his own C-Book be restored and P.T.O. issued to him should be considered cancelled. He was given choice of one residential property in lieu of Property No.65 cancelled from his name. On the basis of this report P.T.O. (Exh.P.4) in respect of Properties Nos.65 and 78 was issued in favour of Mst. Naseeban. Manzoor Hussain tiled an appeal against the aforesaid order which was accepted by Additional Settlement Commissioner who set aside the order of Deputy Settlement Commissioner, and remanded the case with the direction to demarcate Properties Nos.65 and

78. The Deputy Settlement Commissioner vide order dated 13-1-1971 (Exh.D.3) demarcated the aforesaid two properties allotted to the plaintiff and the respondent. The matter was, therefore, finalized by the aforesaid order dated 13-1-1971 (Exh.D.3) which was not assailed by any of the parties before any higher forum, therefore, it attained finality and there was, therefore, nothing left to be decided by the Civil Court as the rights of the parties in respect of the present dispute are to be regulated by the aforesaid order (Exh.D.3) wherein extent of both the properties is shown. The learned Additional District Judge, therefore, held Manzoor Hussain as owner of House No.65 as demarcated in the order of Deputy Settlement Commissioner dated 13-1-1971 and Mst. Naseeban as owner of House No.78 as described in the same order by the Deputy Settlement Commissioner.

5. The plaintiff Mst. Naseeban has tiled this R.S.A. against the aforesaid judgment and decree of Additional District Judge.

6. The appeal is opposed by the learned counsel for the respondent. Arguments heard. Record perused.

7. Learned counsel for the appellant urged that Additional District Judge did not advert to the oral and documentary evidence produced by the appellant. In this regard he referred to the statement of Noor Ahmed P. W.1, clerk of Settlement Department who said that House No.65 was transferred to defendant but later on it was cancelled. Learned counsel then referred to Exhs.P.7, P.9 and P.20 to P.23 which according to him proved that House No.65 was amalgamated in House No. 66.

8. The said contention of the learned counsel for the appellant is without force inasmuch as Exh.P.7 and Exh.P.9 are applications dated 20-3-1962 and 23-2-1963 moved by defendant to the Settlement Authority alleging that one Muhammad Shafi has amalgamated House No.65 in his own house bearing No.66, therefore, House No.65 be demarcated and he be informed about its location. Said applications simply reflect that the defendant was not aware about the location of the property which was transferred to him and he had requested the Settlement Department to locate and demarcate the house which was transferred to him. These applications in no way proved that House No.65 was in fact included by Muhammad Shafi in House No.66.

9. Exhs.P.20, P.23 are Form P.T.I. in respect of R.H.No.65, R.H.No.66, Shop No.78 and Shop No.77, respectively. Manzoor Hussain defendant is shown as owner of R.H. No.65 Muhammad Shaf is shown as owner of R.H.No.66 and Mst. Naseeban is stated as owner of Shop No.78. I fail to understand as to how these documents proved that House No.65, was absorbed in House No.66. Both the said houses are shown as separate entities in the Forms P.T.I. as belonging to different persons. One thing which escaped notice of the Courts below was that in the said documents Exhs.P.20 to P.23, Property No.65 is described as residential house (R.H) whereas Property No.78 is stated as a shop and not residential house.

10. It was next argued by the learned counsel for the appellant that in para.14 of the judgment the learned trial Court while referring to Exhs.D.4 and D.5, had observed that demarcation was carried out by the Settlement Department on 14-5-1977 after issuance of P.T.D. to the defendant whereas it had no jurisdiction and authority to demarcate the properties after issuance of P. T. D. It was urged that Settlement Department had become functus officio after the issuance of P.T.D. in favour of the parties, therefore, the demarcation conducted by them (Exh.D.3) was void and the learned Additional District Judge had unlawfully based his decision on the basis of the said document and had drawn unwarranted conclusion which has resulted in miscarriage of justice.

11. Referring to the above argument, it may be observed that observation of the Civil Judge that demarcation was carried out by the Settlement Department on 14-5-1977 is against record because according to Exh.D.4, demarcation was already made by Deputy' Settlement Commissioner vide order dated 13-1-1971 and on that date viz. 15-4-1977, in presence of both the parties, site plan Exh.D.5, was prepared in accordance with the aforesaid order of demarcation.

12. The argument that after transferring the properties, the Settlement Authorities became functus officio and it was not open for them to have demarcated the properties vide Exh.D.3, as it was exclusively the function of Civil Court, is without force because under section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it is provided that every order made by any officer appointed under this Act shall be final and shall not be questioned in any Court and under section 25 of the said Act, jurisdiction of Civil Court is barred in respect of any matter which an officer appointed under that Act is empowered to determine. In this case House No.65 was transferred by the Settlement Department to the defendant by a Provisional Transfer Order and he could not locate it and had been moving applications to the Settlement Department to point out to him where the property was. Being transferee he was within his right to know what was transferred to him and it was the duty of the Settlement Department to demarcate the property and to describe the same in the Provisional Transfer Order with exactitude.

13. The other observation of the learned trial Court that Settlement Department had become functus officio because P.T.D. had already been issued to the plaintiff as well as to the defendant, after issuance whereof it had no authority to demarcate the property, w9s also misconceived and against record inasmuch as it was not the case of either party that P.T.D. had been issued to them nor any P.T.D. was produced on record. The document of transfer produced by the appellant in support of her case was a P.T.O. (Exh.P.4) and not P.T.D. and the defendant had also produced on record transfer order Exh. D.1.

14. In view of the demarcation conducted by the competent authority it was, therefore, proved that Mst. Naseeban had included residential Property No.65 belonging to the defendant in her Shop No.78 which comprised of a single room. She was, therefore, not entitled to the decree as prayed for by her, the impugned judgment passed by the learned Additional District Judge, was is unexceptionable, it is accordingly upheld and R.S.A. being devoid of any merit is hereby dismissed. S.M.A.H./N-267/L Appeal dismissed.