1983 PLP 1733 (CLC)

AJMAL MIAN, J.‑This is a Letters Patent Appeal against the judg ment dated 7th February, 1972 passed by a learned Single Judge of the erstwhile High Court of Sind and Baluchistan at Karachi in Constitution Petition No: 483/1966. The relevant facts leading to the filing of the above appeal are that appellant No. 1, who is displaced person and a claimant, participated in an earmarking scheme and was successful inas much as a house was drawn in his favour, but the above drawing of lot was cancelled on 15th July, 1964 as a result of litigation, which ensued after appellant No. 1 was successful. Appellant No. 1 was issued a certi ficate of choice dated 15th July, 1964. It seems that in September, 1964 the Deputy Settlement Commissioner, Hyderabad invited applications from the .holders of above choice certificates in respect of the house in dispute.. It is the case, of appellant No. I that the Deputy Settlement Commissioner recommended the transfer of the suit house in his favour, which recommendation was approved by the Additional Settlement Com missioner on 26th September, 1964. It further seems that an agreement of association dated 28th 'September, 1964 entered into between appellant No.1 and appellant No. 3, was filed with the. Settlement Department. After that a p. T. O. was issued on 20th October, 1964 which was followed by a. P. T. D. on 15th January, 1'

965. It also seems that prior to the issuance of the above P. T. D. respondent No. 3 filed an appeal before the Additional Settlement Commissioner against the issuance of the above P. T. O. in favour of appellant No.

1. He also obtained a stay order on 12th January, 1965. It may be pertinent to mention here that respondent No. 3 being a local filed L. H. form 313 on 1st August, 1959 for the transfer of the suit house in ids favour, which application was granted and as a result of which an appendix in his favour was issued on 19th February, 1960 for a sum of Rs. 11,500 being price of the house including 15‑0'/o being additional amount also: It seems that there was litigation between res pondent No. 3 and one Asbiqeen, which was finally resolved by the Settle ment Commissioner by his order dated 21st August, 1965 whereby it eras held that the transfer in favour of respondent No. 3 was proper. It may also be mentioned that the aforesaid appeal filed by respondent No. 3 was dismissed by the Additional Settlement Commissioner by his order dated 6th April, 1965. Being aggrieved by the above order, respondent No. 3 filed a revision, which was accepted by an order dated 21st August, 1965 by the Settlement Commissioner, Hyderabad. It may be pointed out that the Settlement Commissioner, Hyderabad by his aforesaid order dated 21st August, 1965 not only remanded the case to the Additional Settlement Commissioner for determining the claim of the parties but also cancelled the P. T. D. in favour of the appellant No.

1. It may be noticed that no proceeding was filed by any of the appellants against the above revisional order dated 21st August, 1965. After that the matter was taken up by the Additional Settlement Commissioner, who by his order dated 31st January, 1966 held that the transfer in favour of respondent No. 3 could not have been cancelled inasmuch as no proper nonce was served before the cancellation. The appellants being aggrieved by the above order filed a revision which was dismissed on 7th May, 1966. The appellants being aggrieved by the above orders filed Writ Petition No. 483/1966, which was also dismissed by a learned Single Judge by his aforesaid judgment dated 7th February, 1972. The appellants being aggrieved by the above orders/judgment have filed the present Letter Patent Appeal.

2. In support of the above appeal, Mr. Khalilur Rehman, learned counsel for the appellants has made following submissions :‑ (i) That the appeal filed by respondent No. 3 before an Additional Settlement Commissioner was not competent as the transfer in favour of appellant No. 1 was approved by au Additional Settlement Commissioner. (ii) That there was no application for the condonation of delay in filing of the above appeal and in fact this aspect was not adverted to by the Additional Settlement Commissioner. (iii) That after the issuance of the P. T. D. in favour of appellant No. 1 on 15th January, 19ti5 the Settlement Department had become functus officio and, therefore, P. T. D. in favour of appellant No. 1 could not have been cancelled. (iv) That the stay obtained by respondent No. 3 on 12th January, 1965 was not conveyed to the Deputy Settlement Commissioner concerned prior to the issuance of the P. T. D. on 15th January, 1965 and, therefore, the same was validly issued.

3. The contentions Nos. 1 and 2 mentioned hereinabove can be taken up together. In our view the contention that no appeal was competent before the Additional Settlement Commissioner is of no significance for the reason that the above appeal was dismissed by the Addi tional Settlement Commissioner by his order dated 6th April, 1965 and. thereafter, the order in revision was passed by the Settlement Com missioner on 21st August, 1965. It may again be pointed out that by this order the Settlement Commissioner, Hyderabad held that the P. T. D. in favour of appellant No. 1 was null and void. He cancelled the P. T. D. and remanded the case to the Additional Settlement Commissioner for determining the entitlement of appellant No. 1 and respondent No. 3. 1t is an admitted .position that appellant No. 1 had not filed any proceeding to impugned the above order dated 21st August, 1965 which acquired finality on the question of cancellation of P. T. D. Further morn, it may also be pointed out that the P. T. D. was issued by a Deputy Settlement Commissioner and,. therefore, .an appeal to fact was competent before an Additional Settlement Commissioner against the issuance of the aforesaid P. T. O.

4. As regards the above last two contentions that the Settlement Department has become functus officio after the issuance of the above P. T. D. and that stay was not conveyed to the Deputy Settlement Com missioner and, therefore. the P. T. D. was validly issued, it may again be pointed out that the question of cancellation of P. T. D. could no have been agitated by appellant No. 1 either in the writ petition or before this Court in this appeal for the aforesaid reason, namely, that the order dated 21st August, 1965 cancelling the P. T. D. in fact, was accepted by appellant No. 1 inasmuch as he submitted to the jurisdiction of Addi tional Settlement Commissioner after the remand order. Furthermore, since the appeal was pending at the time of issuance of the P. T. D. and even a stay was granted in that appeal, the P. T. D. could have been cancelled by the Settlement Department at the relevant point of time.

5. It may be observed that there is concurrent finding of the Addi tional Settlement Commissioner and of the Settlement Commissioner on the question of fact that respondent No. 3 was not served with a valid notice prior to the cancellation of appendix in his favour and, therefore, any subsequent dealing with the house adverse to the interest of respondent No. 3 was of no legal consequence.

6. For the aforesaid reasons, we do not find any merits in the appeal and, therefore, it is dismissed but there will be no orders as to costs.

7. Mr. Khalilur Rehman, learned counsel for the appellant has requested that this Court may order for the refund of the price paid by appellant No. 1 for the suit house to the Settlement Department. In our view, we cannot pass any such order. However, it is open to the a0pel lants to approach the Settlement Department, which is expected to decide such a request in accordance with law. M. Y. M. Appeal dismissed.