1984 PLP 366 (SCMR)

M. S. H. QURAISHI, J.‑The dispute in this appeal relates to the size of plot bearing City Survey No. 52/33/1 Shikarpur Town, which had been put to auction by the Settlement Department on 1‑5‑1960 and sold in favour of Sh. Amir Bakhsh (since deceased and represented by his L. R's, the respon dents herein) at his highest bid of Rs.‑17,

100. The relevant bid‑sheet showed the plot as bearing C. S. No. 52/33‑1, owned by Thadaram Jiwandas and comprising an area of 2,212.2 sq. yds. On payment of the full price, a P. T. O. issued in favour of Sh. Amir Bakhsh on 18‑7‑1960 showing the same area of 2,212.2 sq. yds. It so happened that, the Settlement Commis sioner had ordered, on 20‑10‑1960, that said auction "should be deemed to be limited only to the plot of Sheikh Amir Bux and the other two plots should be separately auctioned at once". This order appears to have been conveyed to Sh. Amir Bakhsh by letter dated 25‑3‑1961, whereby he was told "to limit yourself to the plot in your actual possession plus the vacant land in front of the same in which old building stands". In pursuance of the order of the Settlement Commissioner, the remaining area measuring 1,446 sq. yds. bearing C. S. No. 52/33‑2 was transferee on 2‑4‑1961 in favour of Faiz Muhammad Soomro (since deceased and represented by his L. R's. the appellants herein) for Rs. 3,860 and a P. T. O. accordingly issued in his favour on 15‑8‑1961. However, Sh. Amir Bakhsh. filed an application on 2‑9‑1958 for issue of P. T. D. in his favour, whereupon he was informed by letter dated 13‑11,‑1968 (the dated "13‑11‑1963" appearing at some places in the paper‑book is not correct. See para. 7 of memo, of appeal at page 48 of the paper‑book) that "your ‑ P. T. D. for an area of 766.2 sq. yds and not for 2,212.2 sq. yds as claimed by you is ready and you may take the delivery of the same on any working day from this office". He challenged the decision by filing an appeal. The Additional Settlement Commissioner dismissed the appeal on 3‑6‑1970 but while doing so he also found fault with the transfer of the other plot in favour of Faiz Muhammad Soomro at a low price and accordingly directed the Deputy Settlement Commissioner to move the Settle ment Commissioner for suo motu revision concerning that transfer. This led to the filing of cross‑revisions by both the parties. The Settlement Commissioner refused to interfere with the transfer made in favour of Faiz Muhammad Soomro for the reason that he had no jurisdiction' to review his predecessor's order. He also dismissed Sh. Amir Bakhsh's revision with the observation that he ought to have sought his remedy against it in the proper forum. However, be directed for refund of the excess price paid by him.

2. Aggrieved, Sh. Amir Bakhsh moved a constitutional petition in the High Court which was allowed upon the view that what had been auctioned in his favour was 2,212.2 sq. yds out of plot No. 52/33 for which area he had given the highest bid of Rs. 17,100 and made full payment of the price and that though the plot was described in the auction bid‑sheet as well as his P. T. O. as C. S. No. 52/33‑1, but "more important is the description of the area therein, namely, 2,212.2 sq. yds.". The contention advanced on behalf of Faiz Muhammad Soomro that C. S. No. 52(33 never existed as it had been sub‑divided much prior to the Partition and that what bad been auctioned in favour of Sh. Amir Bakhsh was the sub‑divided plot No. 52/33‑1, was repelled holding on the basis of some documents produced by the other side that "no sub‑division of this plot existed on or before 1‑5‑1960 and it was one property measuring 2,212.2 sq. yds. which was sub‑divided into two parts on 25‑4‑1962".

3. As certain documents on record supported the appellant's contention regarding sub‑division of the original property, i.e. C. S. No. 52/33, leave to appeal was granted by this Court to consider whether the High Court has not properly appreciated the documents on the record.

4. We have at page 101 of the paper‑book a copy of the rubakari issued by the City Survey Officer, Shikarpur, dated 14‑6‑1970 at the instance of the appellant showing the history of the plot. According to this rubakari plot bearing C. S. No. 52/33 had been transferred from the Forest Department to the Revenue Department in 1936 ; it had been divided into two parts by the order of the Collector, Sukkur, dated 18‑4‑1941, on which date one part measuring 6,677 sq. ft. had been transferred to Thadaram Jiwandas while the other part measuring 13322 sq.ft. had been sold by the Government on 6‑1‑1945 to Rahim Bakhsh who bad later sold the same to Kanayalal and others on 12‑6‑1946 and the latter plot which was treated as evacuee property had been sold by the Settlement Department in favour of Faiz Muhammad Soomro. The above is supported by the extracts from the Property Register Card furnished at pages 72 and 77 of the paper‑book. The first document describes C. S. No. 52/33‑2 as having an area of 1,470.3 sq. yds. and owned by Kanayalal and others. The second document shows the sub‑division of the plot into 52/33‑1 and 33‑2 one measuring 6,677 sq. ft. given by grant by Collector of Sukkur's order dated 18‑4‑1941 to Thadaram Jiwandas and the other measuring 13,322 sq. ft. given by grant by the said Collector's order dated 6‑1‑1945 to Rahim Bakhsh who had sold the same to Kanayalal and Bhagwandas on 15‑7‑1946 for Rs. 19,

988. The assessed rent was Rs. 7‑72 payable by Radharam (Thadaram?) Jiwandas after 31‑7‑1941 and Rs. 15‑6 payable by Rahim Bakhsh. These documents thus make it clear that the original plot, i. e., C. S. No. 52/33 had been sub‑divided into two, that is, No. 52/33‑1 and No. 52/33‑2, which became two distinct properties owned by two different evacuees from before the Partition. The auction held in favour of Sh. Amir Bakhsh could not, therefore, be for more than 766.2 sq. yds. which was the area of plot No. 52/33‑1 which plot was the subject‑matter of that auction. Moreover, the Settlement authorities had no jurisdiction while disposing of that plot to include in it an area pertaining to another property. The High Court was, therefore, not justified in laying undue stress on the erroneous entry of 2,212.2 sq. yds. in the relevant bid‑sheet.

5. We accordingly allow the appeal, set aside the judgment of the High Court And restore that of the Settlement Commissioner dated 22‑1‑1971. As none has appeared on behalf of the respondent there shall be no order as to costs. M. Z. M. Appeal allowed.