1983 PLP 3145 (CLC)

2. It is the case of the petitioner, who is the younger son of Mst. Rahim Bibi and was living with her in this house, the elder brother, Hakeem Feroze Din was, residing in District Sheikhupura, that he was pursuing the case for transfer of the property throughout and bore heavy expenses in connection therewith. So far as the payment of the price was concerned, he points out that the deferred payment on the compensation book of Mst. Rahim Bibi was not sufficient to clear off the transfer price. Hence he secured the compensation book of his father Mian Gulab Din and as some amounts still remained outstanding, these were paid by him from his own pocket. A regular association deed was entered into by Mst. Rahim Bibi with him, on 28th December, 1962, whereby she, surrendered ownership of the entire house in his favour. The surrender was allowed by the Deputy Settlement Commissioner by his order passed on the same date, namely, 28th December 1962, in the following terms :‑ "Allowed if it is in order. (Sd.) DSC. IV. . 28th December, 1962 The provisional transfer order was accordingly amended by another Deputy Settlement Commissioner vide his order, dated 21st August, 1965 in pursuance whereof the petitioner paid the balance amount in respect of all other dues and a Permanent Transfer Deed was issued in his favour by the Deputy Settlement Commissioner on 17th April, 1967. It may be mentioned that Mst. Rahim Bibi died shortly after entering. into the deed of association with the petitioner, namely, on 3rd April, 1963.

3. After the issuance of the Permanent Transfer Deed the peti tioner served a notice under section 30 of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958 on Muhammad Ashraf, son of his brother Hakeem Ferozc Din, who was residing in a part of the house in question. As a reaction two separate proceedings were initiated on behalf of Hakeem Feroze Din, firstly, a civil suit was filed before the Senior Civil Judge, Lahore through Muhammad Ashraf, his son, claiming to be the owner of 1 /5th share in the house in dispute and, secondly, he moved the Settlement Authorities for cancellation of the association deed allegedly entered into between Mst. Rahim Bibi deceased and the peti tioner, Rana Muhammad Hafiz Khan. The civil suit is still pending. how ever, as a result of the proceedings initiated before the Settlement Authorities for setting aside the transfer obtained by the petitioner the Settlement Commissioner, Lahore, was directed to go into the matter. The learned Settlement Commissioner, who took seizing of the case was Khan Muqarrab Khan, who had dealt with the question of transfer of this property in his capacity as Deputy Settlement Commissioner on 31st March, 1961 and by now had become the Settlement Commissioner passed an order, dated 21st October, 1968, in exercise of powers under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, whereby he set aside all orders, subsequent to his own order which he passed on 31st March, 1961 as Deputy Settlement Commissioner and remitted the case for disposal of the Deputy Settlement Com missioner.

4. The writ petition is directed _ against the aforementioned order, dated 21st October, 1968.

5. The learned counsel for the petitioner has contended that Khan Muqarrab Khan, Settlement Commissioner had at one time dealt with this case in a 'subordinate capacity and, as such. he could not act as revisional authority in the same. Even otherwise, by the aforesaid impugned order he had set aside the order of his predecessor, dated 5th February, 1962 in pursuance of which the whole house vas transferred in favour of Mst. Rahim Bibi, which he had no jurisdiction to do. It is also urged that after the issuance of the P.T.D. the Settlement Authorities had become functus officio to deal with the property. Hence, on this ground also, he had no jurisdiction to re‑open the case. ‑‑‑ ‑ ‑ The learned counsel for the heirs of Hakeem Feroze. Din sub‑mitted that the date 31st March, 1961 contained in the order of Khan‑ Muqarrab Khan, Settlement Commissioner, passed on 21st October, 1968 was a mistake for 5th February, 1962, namely, the date on which Sved Ijaz Hussain Shah, Settlement Commissioner, had transferred the full house in favour of Mst. Rahim Bibi, further that it was not correct to say that this was a case of an Officer dealing with the same matter which he bad already dealt with in a subordinate capacity because, in the first instance, that in the former instance the la was between Mst. Rahim bibi and Mst. Rasoolan Bibi whereas in the present case the dispute was between the heirs of Mst. Rahim Bibi and Mst. Rasoolan Bibi was out of the picture. Lastly, it was contended that association deed, being a fabricated document, which allegation was supported by the inquiry report of the Deputy Settlement Commissioner, there was no gar in way of the learned Settlement Commissioner from setting aside the order purporting to sanction the association deed, as a result of which the P.T.D. was issued.

7. Gulab Din, father of the petitioner and Hakeem Feroze Din: deceased, has supported the case of the petitioner and stated that the association deed entered into between the petitioner and his deceased mother, Mst. Rahim Bibi, was valid and for due consideration. I also note that the sisters of the two contesting brothers have not opposed the case of Rana Muhammad Hafiz Khan the writ petitioner.

8. The order of Khan Muqqarrab Khan, Settlement Commissioner, dated 21st October, 1968 is without jurisdiction on two grounds, firstly, the matter had gone up to the Settlement Commissioner Syed Ijaz Hussain Shah, who had passed final orders in the case, on 5th February, 196 these orders could not be set aside by an Officer of concurrent jurisdic tion and, secondly, after the issuance of P.T.D. the Settlement Authorities become funclus officio, to deal with the property. This proposition has been laid down by the highest Court in the Land in the case of Anwar Hussain v. Sarfraz Ahmed PLD1971SC669 in the following terms:‑ There can be no dispute with the general principle that after title has passed on to the person in whose favour a P.T.D. has been issued the Settlement Authorities become junctus officio, to deal with that property." Thus, after the P. T.' D. had been issued, the jurisdiction of the Settlement Authorities to deal with the property did not exist. The learned Settlement Commissioner (Khan Muqarrab Khan) was not at all conscious of this aspect of the matter.

9. The result is that the order dated 21st October, 1968 passed by Khan Muqarrab Khan, Settlement Commissioner, is declared to be with out lawful authority and of no legal effect. The parties are; however, Left to bear their own costs. M. A. X. Petition accepted.