2003 PLP 1258 (CLC)

4. Version of Ghulam Rasool, son of Palia and Talib Hussain respondent No.3, in that appeal was that the plot obtained in auction by the writ petitioner measured 12 Marlas and not 18 Marlas and that Ghulam Rasool son of Palia was in possession of another portion of Property No.2253/8-M, comprising of 6 Marlas which was transferred to him.

5. Vide order dated 22-1-1970, the appeal was accepted by the Additional Settlement Commissioner and the case was remanded to the Deputy Settlement Commissioner for deciding it afresh after thorough inquiry on the following points:-- (i) Whether the property auctioned was 18 Marlas or 12 Marlas? (ii) Whether it was the same property which was in possession of Ghulam Muhammad minor. (The writ petitioner claimed that he had purchased in auction property which was in possession of Ghulam Muhammad minor)? (iii) Whether Ghulam Rasool son of Palia was occupying a portion of the property in possession of Ghulam Muhammad minor as his tenant or he is in possession of another portion of the property independent of the one in possession of Ghulam Muhammad minor; and (iv) Whether form for transfer of the property filed by Ghulam Rasool son of Palia was in time and is entered in the relevant register.

6. On remand the Deputy Settlement Commissioner vide order dated 4-11-1970 held that the writ petitioner had purchased the auction plot measuring 18 Marlas which was in possession of Ghulam Muhammad minor and it was inclusive of the portion which was transferred as a separate plot to Ghulam Rasool son of Palia and that Ghulam Rasool aforesaid did not file any form for the transfer of property within prescribed time. Since portion of land in possession of Ghulam Rasool son of Palia was held to be purchased in auction by the writ petitioner, the documents issued in favour of Ghulam Rasool son of Palia transferring the portion of land to him were declared as irregular and were cancelled.

7. Aggrieved by the aforesaid order of the Deputy Settlement Commissioner dated 4-11-1970, Ghulam Rasool son of Palia and his son Talib Hussain (respondent No.3 in this writ petition) filed an appeal before the Additional Settlement Commissioner. The Additional Settlement Commissioner concurred with the findings of the Deputy Settlement Commissioner and dismissed the appeal vide order dated 7-6-1972.

8. Ghulam Rasool son of Palia and his son Talib Hussain assailed the aforesaid orders of the Deputy Settlement Commissioner and the Additional Settlement Commissioner before the Settlement Commissioner, Multan and Bahawalpur Divisions who vide order dated 26-2-1973 accepted the revision petition, set aside the aforesaid orders dated 4-11-1970 and 7-6-1972 respectively passed by the Deputy Settlement Commissioner and the Additional Settlement Commissioner and remanded the case for further adjudication on the points discussed by him in his order.

9. On remand the case was decided by Deputy Settlement Commissioner vide order dated 8-3-1982. He held that Ghulam Rasool son of Palia had submitted transfer form for plot in question and the same was rightly transferred to him who after securing its transfer had surrendered the full rights of transfer in favour of his son Talib Hussain to whom PTD stands issued after realizing all the dues.

10. In this Constitutional petition Khan Muhammad Sabir Lal, has called in question orders of the Settlement Commissioner and the Deputy Settlement Commissioner respectively passed on 26-2-1973 and 8-3-1982 as without lawful authority and of no legal effect.

11. Writ petition was opposed by the learned counsel for the respondents. Arguments heard, petition and the annexures appended therewith perused.

12. It was argued by the learned counsel for the petitioner that order of Settlement Commissioner whereby he accepted the revision petition and remanded the case without adverting to the findings of the Courts below; that it is an accepted principle of law that a tribunal of exclusive jurisdiction may decide the case wrongly or rightly; that in the instant case categorical findings were recorded by the Deputy Settlement Commissioner and the Additional Rehabilitation Commissioner in their orders on all relevant questions of fact on the basis of records of Settlement and Rehabilitation, Taxation, Guardian Judge, site inspection and the statements of the contesting parties as well as occupants of the concerned property hence such findings were not amenable to revisional jurisdiction. It was further submitted that no case for remand was made out under order 41 rule 23, C.P.C. because the entire data forming basis of the impugned orders was available and no evidence for the contrary was produced, before the Settlement commissioner.

13. The above arguments cannot be considered on the short ground that order of the Settlement Commissioner passed on 26-2-1973 whereby he remanded the case was admittedly challenged by the petitioner in Writ Petition No.451-R of 1973 which was dismissed by the High Court vide order dated 17-6-1974 (Annexure J/4), after holding that the Settlement Commissioner was justified in remanding the case on limited questions of facts. Thus aforesaid remand order passed by the Settlement Commissioner had attained finality and on the principle of res judicata the said order cannot be challenged again in this writ petition.

14. It was next submitted by the petitioner's counsel that order dated 8-3-1982 whereby the Deputy Settlement Commissioner, on remand, had decided the matter', was passed by him without adverting to the evidence on record, and without inspecting the site that the said order is passed on erroneous assumption of facts, surmises, conjectures and was passes beyond the scope of remand order inasmuch as the case remitted for a limited purpose.

15. I am not inclined to consider the above contentions because writ petition is incompetent inasmuch as the petitioner had the remedy of assailing the aforesaid order of Deputy Settlement Commissioner before the Additional Settlement Commissioner or the Settlement Commissioner which remedy was admittedly not availed of by him. Moreover, certifies copy of the aforesaid order was delivered to the writ petitioner by the copying agency on 17-3-1982 but this writ petition was filed after a period of about two years on 8-1-1984 without assigning or explaining reasons for the delay. High Court in its extraordinary jurisdiction would refuse its aid to stale claim where the claimant has acquiesced by sleeping over his right for such a long period.

16. For the reasons stated above, writ petition is here dismissed. H.B.T./M-1697/L Petition dismissed.