1989SCMR665 (PLP)

Reg: Property No.P‑157 Wd. 2 Lyallpur. Entertain. Documents not to be issued till the decision of the appeal. Sd/‑ Addl: Settlement & Rehab: Commissioner 26‑7‑1968. ???? Sargodha Division, Sargodha. Endorsement No ASC‑SRD/2433. Dated 30‑7‑1968. A copy is forwarded to the:‑‑ (1) Deputy Settlement Commissioner, Lyallpur for information. (2) Mst. Khadija Begum wife of Haji Akhtar Ali for information. Sd/‑ Reader to Addl. Settlement & Rehab: Commissioner, Sargodha Division, Sargodha." Notwithstanding this order, P.T.D. in respect of the Chaubara was issued to the respondent No.1 on 31‑7‑1968 taking note of the order of the Deputy Settlement Commissioner passed on 2‑7‑1968, but not taking note of the pendency of the appeal before the Additional Settlement Commissioner and the interim order passed thereon. The Additional Settlement Commissioner accepted the appeal on 31‑10‑1968 and ordered the deletion of the Chaubara by holding as hereunder:‑‑ "I have examined the record and after hearing the arguments advanced by the learned counsel for the parties I am of the view that anything wrong done at any time is to be rectified by the department if it is inconsistent with the law and instructions. In this case, it appears from the perusal of the record that actually there was no Chaubara which has been transferred to the respondent. The record of the case shows that it was a self‑construction and as such any construction which is not evacuee cannot be incorporated in the Provisional Transfer Order. The portions or portion, of the property which are evacuee are only to be brought on the P.T.O. In this case it stands proved from the record beyond any, shadow of doubt that there was no Chaubara at the site and it was constructed by the respondent at his own cost. As such, the addition of the word Chaubara which was not evacuee and was constructed by the respondent himself should not have been added in the P.T.O. The appeal is disposed of in the terms indicated above."? The Settlement Commissioner in Revision also affirmed the conclusion of the Additional Settlement Commissioner by observing as hereunder:‑‑ "By seeing through the aforesaid arguments of both the parties and from a perusal of the record of the case I am of the view that the conclusion drawn by the Addl. Settlement Commissioner in his orders as impugned was nowhere unjustified. The fact of the present petitioner having been transferred only a shop is abundantly clear from the orders dated 27‑4‑1960 of the Addl. Settlement Commissioner wherein the present petitioner is shown in occupation of the shop which had been transferred to him. As for the mention‑of his living in a Chaubara constructed on his shop, it would not denote the said Chaubara to have been included in the transfer of the property in his favour nor its existence as an evacuee property. Since the transfer of the property was confined as for the petitioner to the shop alone, P.T.O. m his favour would only show the description of the property as a shop and not one with Chaubara on top. The respondent as a successor‑in‑interest of the previous transferees could not as well be estopped from pursuing her rights in the property. Question of any delay or the occasion being very late, could not as well stand in her way viz. a viz. her rights in the property." Muhammad Khalil, the respondent No.1 invoked the Constitutional jurisdiction of the High Court where he succeeded. The ground which prevailed with the learned Judge in the High Court will appear from the following findings recorded in the judgment:‑‑ "The appeal against the order of the Deputy Settlement Commissioner dated 2‑7‑1968 was for refusing to amend the transfer order passed as far back as 1961. The later order had, in any case, become final, and, in pursuance thereof, Permanent Transfer Deed had to be issued and was, accordingly, issued. Therefore, no exception can be taken to the issuance'' of the Permanent Transfer Deed. That had ousted the jurisdiction of the settlement authorities as laid down in the above noted cases by the Supreme Court. Rejection of a miscellaneous application by a Deputy Settlement Commissioner cannot confer, on appeal to the Additional Settlement Commissioner, a jurisdiction on the latter to upset final order passed half a dozen years ago, and, ignore Permanent Transfer Order, non‑evacuee property cannot be shown and as the Additional Settlement Commissioner had held in the impugned order that the Chaubara in dispute was constructed by the petitioner and, therefore, that was not an evacuee property, it need only be said that even if it be so held how can the respondent No.1 lay claim to it because in that event, it could not be transferred to the respondent No.1 either, as the latter was only transferred the evacuee property." Mr. M.Nawaz Kasuri, Advocate, the learned counsel for the appellant did contend that the P.T.D. was issued while the proceedings in appeal were pending and also while a stay order had been passed by the Appellate Court, but he was unable to produce material in support of it. On the contrary, in his first Constitution Petition:‑ he had mentioned that while his application for copy of the order of Deputy Settlement Commissioner was pending and before the appeal had been filed the P.T.D. was issued. It was his contention that the P.T.D. had in any case to conform to the entitlement order of the competent authority and not any and every P.T.D. was immune from scrutiny by the Settlement Authorities. Mr. Abdul Wahab‑al‑Khairi, Advocate, the learned counsel for the respondent on the other hand relied mainly on the fact that there was evidence to show that Chaubara existed since 1947 and that P.T.D. had issued and thereafter the Settlement Authorities had become functus officio. He has relied on the statement made by Ghulam Muhammad the original occupant, a transferee of one of the shops to make out the case for Muhammad Khalil. The legal implications of such an order as was passed by the Additional Settlement Commissioner on 26‑7‑1908 'reproduced in extenso have been considered by a Full Bench of the Lahore high Court in the case of Karam Ali and others v. Raja and others (P L D 1949 Lah. 100). 1t enunciates the general proposition of law as well as the interpretation of the specific provision of Order XLl, Rule 5, C.P.C. in the following words. "On a purely grammatical construction of this rule, therefore, it must be held that the jurisdiction of the Court to take further proceedings or execution proceedings under a decree appealed from is excluded the moment an order staying such proceedings is recorded, and that this exclusion does not depend on anything other than the making of the order. It is true that the execution of a decree is a matter resting entirely with the executing Court and not with the Appellate Court, but this position is correct only where there is no direction under rule 5 which clearly gives to the Appellate Court the power to make an order affecting execution. When such order is made, the jurisdiction of the executing Court in respect of the matters covered by that order is superseded and remains suspended as long as that order exists. Such order is an order in the list, by which the parties and the executing Court are both bound and any order by the executing Court inconsistent with that order is a nullity because ex hypothesi the order relates in the language of the constitutional law to a field that has already been occupied by the superior Court. In several respects the appeal revives and resurrects the suit and in a number of cases the appeal itself has been held for certain purposes to be continuation of the suit. It arrests res judicata and keeps alive lis pendens though it does not kill the decree or make ineffective any proceedings taken under the decree in the absence of an order of the Appellate Court to the contrary. In fact, rule 5 recognizes the existence and the validity of the decree unless it is reversed on appeal and allows further or execution proceedings to be taken under it, but all this is subject to the power of the Appellate Court to order stay. It gives to the Appellate Court limited and conditional powers of disallowing 'further proceedings under the decree but such powers, when exercised, have the effect of taking away from the lower Court powers to the extent that they have been exercised by the Appellate Court." ??????????? This principle of civil law has been recognized as applicable in settlement proceedings as well. In the case of Sher Muhammad v. Settlement and Rehabilitation Commissioner, Peshawar and 3 others (1974 S C M R 506) and Abdul Rashid Khan and 2 others v. Mst. Nasim Akhtar (1974 S C M R 509) it was held that P.T.D. was not immune from scrutiny if it was not in accord with the orders passed in pending proceedings.? ?In view of the pending appeal it was fully within the competence of the Additional Settlement Commissioner and the Settlement Commissioner to enquire into the facts of the case and to record a finding of fact in the matter. Their finding of fact is not ordinarily liable to interference in the Constitutional jurisdiction. Every P.T.O. and P.T.D. has as its foundation an entitlement order passed by a competent authority. Whenever grievance is being made with regard to the P.T.O. or P.T.D. by reference to the entitlement order, then it is for the Settlement Authorities and none else to see that there is no incongruity or inconsistency between the two. In the casein hand, the case before the Settlement Authorities showed that Khalil had applied only for the transfer of a shop and had been allowed the transfer of a shop only in October, 1958 of which rent after deducting rebate was assessed at 9.50 per month. There was evidence to show that from March, 1951 till 1955 he had been prosecuted a number of times for constructing un-authorisely a Chaubara on his shop. He had been convicted. The construction was ordered to be demolished. Evidently the Settlement Authorities did not take note of such a Chaubara and the rights arising there under. The entitlement order passed by the Settlement Authorities in favour of respondent No.1 or the other occupants of the shop did not show that the interest of Khalil extended to any other property. In this background the Settlement Authorities could justifiably hold that the unauthorized Chaubara, even if in existence, could not be made the basis for claiming of division of the property and no such division t had been made so as to curtail the rights of the other occupants of the shop in l'‑ respect of the roof over their shop. This finding recorded by the Settlement C Authorities which is just and proper and is in accord with the material on record and consistent with the law, was not liable to interference in the Constitutional jurisdiction merely on the ground that P.T.D. had issued and it enjoyed immunity as such. The appeal is accepted with costs. The judgment of the High Court is set aside and that of the Settlement Commissioner restored. AA./K‑89/S ??????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.