1985 PLP 2045 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑Dispute in this case relates to transfer of Plot No. P.R.1/20/4 situate on Marston Road, Karachi. Petitioners claim its transfer on the ground that they were allottees and had raised permanent construction thereon. They subsequently offered to pay average auction price plus 50% thereon. The settlement authorities rejected their request but on a constitution petition, being Constitutional Petition No. 771 of 1962, a Single Judge of the former High Court of West Pakistan, Karachi Bench, held by the judgment, dated 3‑9‑1965 that petitioners were entitled to its transfer, and directed the settlement authorities to transfer the plot to them. In the meanwhile, however, the plot was put to auction and was transferred to the highest bidder Shaikh Abdul Hafeez, predecessor‑in‑interest of respondents 2 to 6, and by the judgment of the learned Single Judge of the High Court the auction of the plot was set aside. This judgment was subject‑matter of Letters Patent Appeals by the parties, and finally Letters Patent Bench by the judgment dated 6‑4‑1967, while upholding the judgment of the learned Single Judge, held that the question of transfer of the plot ought to have been left to be decided by the settlement authorities and accordingly modified the judgment of the learned Single Judge in so far as the direction contained therein with regard to transfer of the plot to the petitioners, and it was left to the Chief Settlement Commissioner to consider the entitlement of the petitioners to the transfer of the plot in the light of the judgment. The judgment of the Letters Patent Bench led to two appeals before this Court, one by the petitioners, and the other by Shaikh Abdul Hafeez, being Civil Appeals Nos. K‑37 and K‑22 of 1970. Both these were however dismissed by this Court by the consolidated judgment dated 8‑1‑1980. Consequently, the Settlement Commissioner took up the case, and he eventually, after hearing the parties, transferred the plot in favour of the petitioners by the order, dated 22‑2‑1981. Since Shaikh Abdul Hafeez died in the meantime, his successor- in‑interest, respondents 2 to 6 herein, then challenged the order of the learned Settlement Commissioner in a Constitutional Petition, being Constitutional Petition No.72 of 1981 in Sind High Court. The learned Judge of the High Court who heard the case took the view that since it has not been shown by the petitioners that they had raised a permanent construction on the plot they were not entitled to its transfer, and on this view of the case he quashed the order of the Settlement Commissioner and allowed the petition by the judgment, dated 1‑10‑1984. Petitioners now seek leave to appeal from the judgment of the High Court, dated 1‑8‑1984, and Mr. Khalid M. Ishaque, learned counsel appearing for the petitioners submits that the learned Judge in the High Court has failed to appreciate that the respondents 2 to 6 who were the petitioners before him had no locus standi whatsoever to challenge the order of the Settlement Commissioner, dated 20‑2‑1981, for, they have no right to the transfer of the plot since by the judgment of learned Single Judge of the former High Court of West Pakistan, Karachi Bench, dated 3‑9‑1965 and even thereafter by the judgment of the Letters Patent Bench of the same High Court, and finally by the judgment of this Court, dated 8‑1‑1981, the question of their entitlement stood foreclosed. In support of this submission learned counsel relied on Majidullah Khan v. N.‑W.F.P. through Board of Revenue 1980 S C M R 728; Munshi Muhammad Ibrahim and another v. Settlement Commissioner, Karachi and 4 others 1974 S C M R 299; Ahmad Jamal v. Nazir Ahmad Khan and others 1975 S C M R 24 and Mir Zaman Khan v. Muhammad Ashraf Lodhi and 2 others 1976 S C M R

318. The above submission, amongst others, deserves consideration. We, therefore, grant leave and allow the petition. Security Rs.2,

500. M. I. Leave granted.