2001CLC314 (PLP)

Ch. Riasat Ali for Petitioner. Shahid Hussain Qadri for Respondents. Date of hearing: 5th October, 2000. Dispute between the parties relates to a House bearing No. 1/217‑B, Lalamusa. Eastern portion of this house was put to auction by the Settlement Department, which was purchased by the petitioners. Muhammad Ramzan, the respondent's predecessor, filed an appeal against such order of auction, claiming that the whole house had already been transferred to him, vide P.T.O., dated 30th June, 1960, and therefore, it was not an available evacuee property. This appeal was dismissed by the Additional Settlement Commissioner, on 30‑8‑1969, holding that the aforesaid house consists of two portions, the respondent had applied for the portion in his occupation, which was transferred to him, while the other portion remained undisposed and was rightly put to auction by the Settlement Department. Against the above, the respondent's predecessor Muhammad Ramzan, filed Revision Petition No.78 of 1967, before the Settlement Commissioner, which was consigned to the Record Room, by the following order, dated 31‑7‑1971:‑‑ "Notice sent to the petitioner under Registered A/D on the address given in the revision petition has been received back undelivered by the postal authorities, with the report that no such person was in Lalamusa. There might be a change in address about which no information to this Court has been given by the petitioner. In the circumstances this revision petition cannot proceed and is consigned to record."

2. Thereafter, the present respondent being successor of Muhammad Ramzan filed a miscellaneous application for revival of the revision petition consigned to the Record Room on the plea that Muhammad Ramzan did not receive any summons from the Settlement Commissioner, he died whereafter it had come to the knowledge of his successors that the above revision, was consigned to the Record Room, therefore, the same be restored and decided on merits. This application was contested by the petitioner and was accepted by the Additional Settlement Commissioner, Rawalpindi, vide order, dated 24‑6‑1976. Thereafter, the revision was heard on merits and the revisional Court, after taking into account the facts of the case, and on the basis of the examination of the record, reached to the following conclusion:‑‑ "After careful examination of the record, I find myself in complete agreement with the arguments of the learned counsel for the petitioners and 'held that the property having once been transferred as a whole in the name of the predecessor of the present petitioners was not available for its re‑auction. There is nothing on record to show that a part of property was transferred to Muhammad Ramzan as also the property has not been divided into sub‑units or assigned any suffix. I, therefore, set aside the auction in the name of Said Muhammad and accepting the revision petition filed by Muhammad Ramzan the predecessor of the present petitioners hold that Property No.I/217 Lalamusa as a whole was transferred to Muhammad Ramzan. "

3. The petitioner, by filing a suit, challenged the order of revival of the respondent's revision petition and also its final acceptance. This was contested by the respondent side, claiming that the whole house was transferred to them and, therefore, it had gone out of the compensation pool and, thus, no auction of any portion thereof could be made, in favour of the petitioner. Issues were framed, parties were put to trial and the learned Civil Judge, vide judgment and decree, dated 11‑7‑1984 allowed the suit, declaring that the order, dated 24‑6‑1976 restoring the revision petition and its acceptance were illegal and without lawful authority, the plaintiff is the owner of the eastern part of the House No.l/217‑B. In appeal, filed by the respondent the judgment and decree was set aside and it has been held that after the house in full having been transferred, in favour of the respondent's predecessor, Muhammad Ramzan, i. Without out of compensation pool and was not available for auction.

4. Learned counsel for the petitioner states that after repeal of the Evacuee Laws, the Settlement Authority had no jurisdiction, to revive the revision of the petitioner, which according to him had been dismissed in default; the "Notified Officer" could only deal with such matters, which were pending; as no revision was pending, at the time of the repeal of Evacuee Laws, in 1974, therefore, the order, dated 24‑6‑1976, was without jurisdiction, thus, the subsequent order, dated 2‑9‑1976, allowing the revision of the respondent is also illegal. It is further contended that as per the order of the Additional Settlement Commissioner, dated 30‑8‑1969, it is categorically held that the house consists of two portions, the respondents were only transferred the portion, which was in their occupation and not one, which was put to auction.

5. I have heard learned counsel for the parties. As regards the first objection, obviously the "Notified Officer" was only empowered to hear the matters pending, at the time of the repeal of the Evacuee Laws, but in this case, the revision petition of the respondents had not been dismissed for non- prosecution, rather it was only consigned to the Record Room because the whereabouts of Muhammad Ramzan could not be ascertained and the summons were received back that he was not traceable. The consignment of a case to the Record Room, does not mean the disposal of the matter or termination of the lis, but it is a temporary arrangement under which, it is considered by the concerned authority that the matter cannot proceed for the time being and, therefore, no further action is called for. Thus, for all intends and purposes the revision of the respondent was pending, at the time of the repeal of the Evacuee Laws and, therefore, on the, application of the respondent, it was, for valid reasons revived and heard on merits. In this behalf Messrs Delite House Ltd. v. Fayyaz Akbar (1989 SCMR 595) can be relied upon, holding that the consignment of a case to record was temporary, up to a specified time and revival of proceedings was pursuant to the order of consignment itself and not in derogation of it. Therefore, the argument of the learned counsel that as no revision was pending at the time of the repeal of the evacuee laws, and consequently no revival order could be passed by the "Notified Officer" had no force.

6. As regards the other question, whether the full house was transferred to Muhammad Ramzan or a portion thereof. PTD placed on record, by the respondent side clearly identify the number of the property, and it is specifically mentioned that "house in full" is transferred to Muhammad Ramzan, thus, by virtue of this PTD in his name, the entire house, went out of the compensation pool. Therefore, the Settlement authorities, in law had no jurisdiction to sub‑divide the property and put for auction any portion thereof. There is no order on the record that the house was ever sub‑divided by any competent officer; it was never treated as a separate unit of the main house. This is also the findings in appeal by the learned Additional District Judge. As the whole house had been transferred to the respondent side, a portion thereof was not an available property, which could be put to auction, consequently the order of the Settlement Department, auctioning the property was absolutely illegal and unlawful. In the light of above, I do not find any error in the judgment of the Court in appeal, calling for interference in my revisional jurisdiction. This petition, thus, has no force, the same is hereby dismissed. Q.M.H./S-95/L Petition dismissed.