P L D 1975 Karachi 971 (PLP)

S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others P L D 1971 S C 669 ref. Ismail Munshi for Appellant. Jan Muhammad Dawood and Munnawar Abbas for Respondent No. 1. Date of hearing: 19th and 21st February 1974. NOORUL ARFIN, J.‑This letters patent appeal questions the judgment given on 8‑4‑1966 by a learned Single Judge of the Karachi Bench of the former High Court of West Pakistan. The dispute relates to a building which has been given two survey numbers by the City Survey, that is. C. S. .764 and C. S. 765 and is situated at Chakra Bazaar, Nawabshah. The appellant was in possession of a residential portion situated ‑ on the first floor of this building. The tenancy of this portion was in the name of a firm "R. E. Muhammad" of which the appel lant is a partner, but the actual possession of the disputed portion was with the appellant himself. On 6‑8‑1959, the appellant applied on N. C. H. Form for transfer of this residential portion, which was assigned No. II‑A 452‑A by the Custodian of Evacuee Property. On 7‑1‑1960, Provisional Transfer Order and, on 21‑3‑1964, Permanent Transfer Deed, were issued to the appellant in respect of this disputed premises. One Haji Hussain, respondent No. 1, applied on C. S. Form on 14‑7‑1959 for transfer of a shop on the ground floor and residential tenement above this shop in the aforesaid building to him. But this application was rejected on 4‑3‑1961 on the ground that Haji Hussain himself was not a tenant, but that tenancy vested in the firm known as "Haji Hussain & Co." Haji Hussain appealed to the Deputy Settlement Commissioner, who, by his order dated 29‑9‑1961, ordered that the shop in possession of Haji Hussain & Co. be transferred to Haji Hussain. On 9‑3‑1963, a Permanent Transfer Deed was issued to Haji Hussain for this shop as well as the residential tenement above the shop. On 9‑6‑1964, Haji Hussain made a miscellaneous application to the Deputy Settlement Commissioner in which he made the following statement "3. That‑ the applicant has reliably learnt that your office has given No. II‑A/452/A to some property and transferred to some one which is not understood by the applicant as there is no other available property which can be assigned a separate No. and could be transferred to any one else." Accordingly, Haji Hussain prayed that, to avoid complications, the tenement No. II‑A‑452‑A be demarcated, so that the property transferred to him may not come under any dispute. The Deputy Settlement Commissioner, after ins pecting the property, rejected this application on 30‑1‑1965. From this order it appears that Haji Hussain's contention was that there was only one building, though it was given two survey Nos., C. S. 764 and C. S. 765, with two shops on the ground floor and only one residential tenement on the first floor ; that the two shops on the ground floor were given Custodian No. II‑A‑450 and II‑A‑451, and the residential portion above these shops was given one Custodian No. II‑A‑452 ; and that Haji Hussain was a transferee of the shop bearing No. II‑A‑451 and the whole of the residential portion bearing No. II‑A‑452. The Deputy Settlement Commissioner, on inspection, found that the residential portion had been bifurcated into two tenements Nos. II‑A‑452 and I1‑A‑452‑A, and each tenement had independent amenities at the time of the inspection. The Deputy Settlement Commissioner thus held that the Permanent Transfer Deed having already been issued to the appellant, the transfer of residential portion II‑A‑452‑A in favour of the appellant could not be cancelled.‑ Haji Hussain then went in appeal to the Additional Settlement Commissioner, who, on material which has not been made avail able to the Court nor is known to exist, held by order dated 17‑6‑1965, that the appellant's possession of tenement No. II‑A‑452‑A had not been admitted by the Custodian, and that, in fact, this tenement was part of tenement No. II‑A‑452, but, on re‑survey, had been assigned a separate number as II‑A‑452‑A and therefore, tenement No. II‑A‑452 having already been transferred to Haji Hussain, the transfer of tenement No. II‑A‑452‑A to the appellant was invalid. The Additional Settlement Commissioner further held, without any material to support his finding, that the title of the appellant to the residential tenement transferred to him had been determined in review by the Deputy Settlement Commissioner only on 17‑3‑1964, when powers of review were not available to this officer. Accordingly, the transfer of tenement No. II‑A‑452‑A to the appellant was cancelled. The appellant's revision applica tion to the Settlement Commissioner also failed. The appellant then brought Constitutional Petition No. 215 of 1966 before the Karachi Bench of the former High Court of West Pakistan which was dismissed, as stated above, by a learned Single Judge. In effect, the learned Single Judge adopted verbatim the arguments given by the Additional Settlement Commissioner in justification of the cancellation of transfer of tenement No. II‑A‑452‑A to the appellant and his order is vitiated and cannot be upheld, because the findings of the Additional Settlement Commissioner, on which the learned Single Judge relied, were contrary to the record. Against the order of the learned Single Judge, the appellant has come in the present letters patent appeal. 2. In our view, the findings which are in the nature of arguments, of the learned Additional Settlement Commissioner are without any basis at all. that is, there is no material on record to sustain these findings, and this fact has vitiated his order as well as that of the Settlement Commissioner and of the learned Single Judge of the former High Court of West Pakistan. We have above stated that one building was assigned two survey numbers by the City Survey, C. S. 764 and C. S. 765. On the ground floor of this building, there are two shops which were assigned‑, Custodian Nos. II‑A‑450 and II‑A‑451, this latter shop being in possession of the firm in which Haji Hussain was partner. Likewise, there were two ‑residential tenements, one above the shop No. II‑A‑451, which was assigned Custodian No. II‑A‑452, and the other over the shop No. II‑A‑450 bearing the Custodian No. II‑A‑452‑A. The order of the Deputy Settlement Commissioner dated 30‑1‑1965 made on the miscellaneous application of Haji Hussain makes this position clear. Further, this fact is proved by the statements contained in C. S. Form filed by Haji Hussain himself which is on our record as Annexure `C' to the petition. Against column 10, Haji Hussain made the following statement "(1) The shop applied for in applicant's personal possession. (2) Besides, there is one more shop in possession of another partner. (3) One residential house is in claimant's possession. One residential house is in possession of a person not known." Thus, Haji Hussain himself had admitted that the building in question had four units, that is, two shops on the ground floor and two residential tenements on the first floor, and that one of the residential tenements was in the possession of some other person. It is strange that the learned Additional Settlement Commissioner held that there was only one residential portion above the two shops in the said building in spite of Haji Hussain's own admission, made in his C. S. Form, that there were two residential portions, one in his possession and the other in the possession of some other person. We are constrained to take the view, though very reluctantly, that the find ings of the learned Additional Settlement Commissioner were contrary to the material on record and can even be said to be perverse. It is these findings which weighed with the learned Single Judge, who fell into error by accepting these findings as based on material in the record of the Additional Settlement Commissioner. There is also no material to support the finding that the entitlement of the appellant was determined by the Deputy Settlement Commissioner only in review on 17‑3‑1964, or that the tenancy of the appellant with regard to the tenement No. II‑A‑452‑A was not recognised by the Custodian, or that there was any re‑survey of the residential portion in the said building after transfer of such portion to Haji Hussain. We have noted above that the entitlement of the appellant to the tenement No. lI‑A‑452‑A was determined as early as 7‑1‑1960, when he was issued a Provisional Transfer Order, which was long before the determination of the entitlement of Haji Hussain which was done only by the appellate order of the Deputy Settlement Commissioner on 29‑9‑1961, which order, in fact, related only to the shop, and not to the residential portion which happened, somehow or the other, to be included in the Permanent Transfer Deed which was issued to Haji Hussain. Further, the definition of the word "possession" contained in section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, does not require that possession should be only under a tenancy recognised by the Custodian and as early as 13th October 1959, the Central Government had issued a notification that persons who were in undisputed A occupation of a premises on 20th December, 1958, should be treated to be in possession of such premises, even though they were not in possession in pursuance of an order or allotment of any authority prescribed in section 2(6) of the Act. That the appellant was in undisputed occupation of tenement No. II‑A‑452‑A was admitted, as noted above, even by Haji Hussain in the statements which he made in his C. S. Form. We were at pains to find out the material on which the finding of the learned Additional Settlement Commissioner purports to have been based, but we regret to state that no ,. such material has been shown to us or has been found to exist at all. 3. We had pointed out this factual position to Mr. Jan Muhammad Dawood, the learned Advocate for Haji Hussain, at the hearing before us on 19‑2‑1974. Mr. Jan Muhammad Dawood took adjournment for today with the request that he would like the case to be argued by Mr. Munnawar Abbas. At the hearing today, Mr. Munnawar Abbas took up the argument that the case before us was one of duplicate transfer, that is, that tenements Nos. II‑A‑452 and II‑A‑452‑A already stood transferred to Haji Hussain when the Settlement Authorities ordered transfer of tenement No. II‑A‑452‑A to the present appellant on 7‑1‑1960. According to Mr. Munnawar Abbas, even a Permanent Transfer Deed had been issued to Haji Hussain for both these tenements. But this argument of Mr. Munnawar Abbas is not based on the material before us. Neither the order transferring both these tenements to Haji Hussain, nor the consequent Provisional Transfer Order have been produced before us. Mr. Munnawar Abbas was even unable to give us the date on which both these tenements were ordered to have been transferred to Haji Hussain. In fact the material on record before us is quite contrary to the contentions of Mr. Munnawar Abbas. It was the appellant who first obtained transfer on 7‑1‑1960 of tenement No. II‑A‑452‑A. Again. it was the appellant who first obtained, on 7‑1‑1960, a Provisional Transfer Order for this tenement. Haji Hussain's C. S. Form for transfer of shop No. II‑A‑451 and residential tenement No. II‑A‑452 was, in fact, rejected on 4‑3‑1961. It was only in appeal to the Deputy Settlement Commissioner that Haji Hussain obtained an order on 29‑9‑1961 in his favour. But this order also relates only to the shop to Haji Hussain's possession, that is, shop No. II‑A‑451, and not to the residential tenement above this shop bearing Custodian No. II‑A‑452. We fail to understand how Haji Hussain managed to get the residential tenement II‑A‑452 included in the permanent Transfer Deed which he obtained on 9‑3‑1963. Thus, there is no evidence whatsoever to support the new argu ment which Mr. Munnawar Abbas set up before us today. 4. Further, it was not at all open to the Additional Settlement Commis sioner to make an order which in effect transferred residential tenement No.II‑A‑452mA to Haji Hussain. There was no appeal or revision by Haji Hussain against the order by which this tenement was transferred to the appellant. Haji Hussain had merely made a miscellaneous application to the Deputy Settlement Commissioner for demarcation. This was rather a circuitous way both for Haji Hussain as well as the Additional Settlement Commissioner to make additions to the property transferred to Haji Hussain by cancelling transfer of tenement No. II‑A‑452‑A, which already stood transferred to the appellant. In proceedings for demarcation, no such order could be made by the Settlement Authorities as held by their Lordships of the Supreme Court in S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others (P L D 1971 S C 669 ). Further, the appellant had already obtained Permanent Transfer Deed for the residential tenement No. II‑A‑452‑A. This being so, and Rules 6 and 7 of the Permanent Transfer Rules, 1961 having been deleted, it was not competent on the Settle ment Authorities' part to cancel the transfer, and consequently the Permanent Transfer Deed, of the residential tenement No. II‑A‑452‑A in favour of the appellant. Rules 6 and 7 of the Permanent Transfer Rules, 1961 were framed under the Displaced Persons (Compensation and Rehabilita tion) Act, 1958. These rules enabled the Settlement Authorities to cancel Permanent Transfer Deeds and to resume the property transferred from a transferee on ground of fraud, misrepresentation or contravention of any provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. But Rule 6 was deleted by Notification No. S. R. 0.‑192 (K)/64 dated 2nd March 1964 and rule 7 was deleted by Notification No. S. R. 0. 127/11‑64 dated 27th December, 1964. After issue of the Permanent Transfer Deed to the appellant for tenement No. II‑A‑452‑A, no power was available to the Additional Settlement Commissioner to cancel transfer of the said tenement to the appellant, or to resume this tenement and after deletion of Rules 6 and 7 of the Permanent Transfer Rules, 1961, this power could not be exercised by the Settlement Authorities even on grounds of misrepresenta tion, fraud or contravention of any provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The controversy with regard to the power of the Settlement Authorities to cancel transfer or resume a property after issuance of a Permanent Transfer Deed now stands concluded by various decisions of the Supreme Court. As early as 1970, their Lordships of the Supreme Court held in S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others that, after title had passed on to a person in whose favour a Permanent Transfer Deed had been issued, the Settlement Department ‑became functus oiclo to deal‑.with that property. This view was reiterated by their Lordships in Aminuddin v. The Settlement Commissioner and others (1973 S C M R 624) in which case their Lordships went to the extent of holding that, after deletion of rules 6 and 7.of the Permanent Transfer Rules, 1961, there was no power c left with the Settlement Authorities to even correct clerical mistakes in Permanent Transfer Deeds. Again in Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another (1974 S C M R 8), their Lordships held that, after issuance of Permanent Transfer Deed, the property for which such deed was issued went out of the compensation pool and could not be dealt with by the Settlement Authorities even under their revisional jurisdiction. Mr. Munnawar Abbas, however, placed reliance on another decision of their Lordships, that is, Muhammad Ismail and another v. The Settlement Commissioner and another (1973 S C M R 407), in which it was held that the Settlement Authorities were not deprived of jurisdiction to adjudicate in respect of a property regarding which issuance of a Permanent Transfer Deed had been ordered. In our opinion, this decision has been misunderstood. The rule laid down in that case was in the context of the fact that Permanent Transfer Deed had been ordered to be issued to the petitioner, even though the revision application of one of the respondents was still pending before the Settlement Commissioner. In other words, order for issue of Permanent Transfer Deed was made before the determination of the title of the parties to the property in dispute in that case. Further, what their Lordships held in that case was that the order for issue of Permanent Transfer Deed was subject to appellate and revisional jurisdiction of the Settlement Authorities, and not that the Settlement Authorities still retained jurisdiction to deal with properties for which Permanent Transfer Deeds had been issued. What we wish to emphasize is that the rule laid down by their Lordships is only to the effect that an order for issue of Permanent Transfer Deed is subject to the appellate or revisional jurisdiction of the Settlement Authorities. This rule should be read with the rule laid down by their Lordships in the other cases cited above, that is, that, on issuance of Permanent Transfer Deed, the property to which such deed relates, goes out of the compensation pool and no power is left with the Settlement Authorities to deal with such properties. It should further be borne in mind that in Muhammad Ismail and another v. The Settlement Commissioner and another their Lordships were dealing with a case in which Permanent Transfer Deed was interfered with at a time when rules 6 and 7 of the Permanent Transfer Rules were still in force. In our view, the several decisions of the Supreme Court may perhaps be said to lay down these rules ; (i) an order for issue of Permanent Transfer Deed may be subject to appellate or revisional jurisdiction of the Settlement Authorities before the Permanent Transfer Deed is issued ; (ii) but if such order is not challenged either in appeal o revision under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and a Permanent Transfer Deed is issued, then no power is left with the Settlement Authorities to deal with property to which such deed relates, as the property goes out of the compensation pool on the issuance of Permanent Transfer Deed ; (iii) Settlement Authorities retain jurisdiction to deal with a property which is the subject‑matter of a Permanent Transfer Deed, if such deed is issued during the pendency of validly and properly instituted proceedings for final determination of the rights of the parties to such property in which case the Permanent Transfer Deed will be subject to the final order made in such proceedings, this rule resting on the principle that Permanent Transfer Deed should not be issued if the rights of the parties are under dispute in validly and properly instituted proceedings before the Settlement Authorities ; and (iv) after deletion of rules 6 and 7 of the Permanent Transfer Rules, 1961, if Permanent Transfer Deed has been issued, the Settlement Authorities cannot resume a property or cancel transfer even on grounds of misrepresentation, fraud or contravention of any provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, nor to correct any clerical mistakes in the Permanent Transfer Deeds. Even if we were to accept the contention of Mr. Munnawar Abbas that the judgment of their Lordships in Muhammad Ismail and another v. The Settlement Commis sioner and another should be applied to the present case, the fact remains that there was neither appeal nor revision by Haji Hussain against the order of transfer and of issuance of Permanent Transfer Deed of the residential tenement No. II‑A‑452‑A to the appellant. Haji Hussain merely made a miscellaneous application for demarcation, and, as held by their Lordships of the Supreme Court in S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others such procedure is not available to increase the area, or add to, the property transferred to a person under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by cancelling transfer of a property to another person. It may here be added that the view we have taken in this judgment, that .no power was available t9 the Additional Settlement Commis sioner or any other Settlement Authority to deal with the property transferred to the appellant, has also been adopted in a Karachi decision, Mst. Hajiani Fatima Bai and 6 others v. Ibrahim and 13 others (PLD 1972 Kar. 610). Before concluding, we will note that Haji Hussain would appear to have made the application for demarcation after he had purchased the adjoining shop bearing Custodian No. II‑A‑450, and, therefore, having obtained 3/4th portion of the aforesaid building, he decided to obtain the remaining 1/4th portion also through the circuitous way of making an application for demarcation. 5. For the reasons which we have discussed above at length, we allow this appeal and, in consequence, Petition No. 215 of 1966. The orders of the Additional Settlement Commissioner dated 17‑6‑1965 and of the Settlement Commissioner dated 11‑12‑1965, which resulted in depriving the appellant of the residential tenement No. II‑A‑452‑A, are therefore quashed and the transfer of this tenement in favour of the appellant is maintained. The appellant shall have costs of the proceedings before us and of the proceedings in Petition No. 215 of 1966. K. B. A. Appeal accepted.