1989 PLP 1659 (SCMR)

GHULAM MUJADDID, J.‑‑This civil appeal by Muhammad Islam son of Umer Din resident of Quarter No. 6, Daras Bara Mian, Moghalpura, Lahore, against Abdul Majid son of Ali Muhammad, Additional Settlement Commissioner, Lahore and Deputy Settlement Commissioner Lahore, is by leave of this Court.

2. The dispute pertains to Property No. 51‑XIX‑42‑9‑1. situated in Baghbanpura, Lahore. Initially the aforesaid property was transferred to Abdul Rahman and others. They surrendered their rights in favour of Umer Din, father of the appellant Muhammad Islam. The transfer price fixed by the Settlement Authorities was Rs.11,

040. Out of this Rs.7,020 were adjusted from Umar Din's claim. The balance of Rs.4,020 was to be paid by Umer Din.

3. It is alleged that on 11‑2‑1965 Umer Din surrendered all his rights in favour of one Malik Mushtaq Hussain an employee of the Settlement Department. This deed, by means of which Umer Din had surrendered his rights was approved by the Settlement Authorities on 28‑10‑1967. According to the appellant, this was forgery. The property was resumed by the Settlement Department but without issuing any notice to Umer Din. Thereafter it was auctioned on 21‑2‑1970. Abdul Majid, respondent No. 1, got it in auction. When this fact became known to the appellant whose father had died by then, filed an appeal in the Court of Additional Settlement Commissioner Lahore. The appeal was decided on 26‑5‑1973. The Additional Settlement Commissioner remanded the case to the Deputy Settlement Commissioner for fresh decision after holding an inquiry and deciding the same in accordance with law.

4. Abdul Majeed felt aggrieved of this order. He, therefore, invoked the Constitutional jurisdiction of the Lahore High Court. His Constitutional petition was decided on 19‑6‑1975 whereby the order of the Additional Settlement Commissioner was set aside. The petition was accepted.

5. The reasoning which prevailed with the learned Judge of the High Court was that after amendment in Permanent Transfer Deed Rules the remand order was not justified. The Settlement Authority had become fumets officio. It is the aforesaid order of the High Court which is challenged in this appeal before us. Learned counsel for the appellant submitted that resumption of the property without notice to Umer Din was contrary to law. It was argued that hence auction and all the subsequent proceedings were Learned counsel further submitted that Malik Mushtaq Hussain, an employee of the Settlement Department, exploited his position. He declined to appear before the Additional Settlement Commissioner. As a matter of fact the deed was a forgery.

6. Learned counsel contended that irrespective of everything the appeal "filed by the appellant was pending before the Additional Settlement Commissioner who had ordered status quo till the decision of appeal. The Deputy Settlement Commissioner as such was not competent to issue the Permanent Transfer Decd in favour of the auction purchaser. Learned counsel for the respondent laid emphasis only on one fact and that was that Permanent Transfer Decd having been issued the matter as such was beyond the jurisdiction of the Settlement Authorities. 7 In support of this learned counsel cited string of authorities. We do not intend to refer to anyone of them because those arc not relevant. We called upon the learned counsel if he had any decision where it had been observed that in spite of a stay order issued by the appellate authority like the Additional Settlement Commissioner the Deputy Settlement Commissioner was competent to issue the necessary document of title. He was unable to cite any decision. As a matter of fact, learned counsel for the respondent could not advance any effective argument and simply submitted that the remedy for the aggrieved party was to move for contempt proceedings.

8. This appeal must be allowed on the short ground that there was order of status quo by the appellate authority, This order had neither been vacated or modified. Hence the Deputy Settlement Commissioner was not competent to issue Permanent Transfer Decd nor the appellate authority was debarred from deciding the appeal on merits. We don't think that the case of the appellant is hit by the rules pertaining to the Permanent Transfer Deed.

9. This appeal is allowed. The order of the High Court is set aside and that of the Additional Settlement Commissioner restored. It shall now be complied with without any delay. The appellant is entitled to the costs of this appeal throughout. M.A.K./M‑913/S Appeal accepted.