1991 PLP 170 (SCMR)

NASIM HASAN SHAH, J.‑‑‑ An evacuee shop in Shorkot City bearing No.94/352 was jointly transferred in the name of the petitioner Muhammad Yaqub and his brother Wali Muhammad respondent No.1 on 30‑6‑1966. After this order of transfer, two deeds of association were filed before the Settlement Authorities; one dated 21‑8‑1967 whereby the share of Wali Muhammad respondent was allegedly transferred to Muhammad Yaqub petitioner and the second dated 29‑3‑1968 on the basis of which the entire shop was transferred to Shahab‑ud‑Din, respondent No.3 herein. Wali Muhammad, respondent No.1, claiming that these deeds of association were not genuine filed an appeal before the Additional Settlement Commissioner but the latter dismissed it on the ground that as a P.T.D. had been issued, the Settlement Authorities could not interfere. However, on revision the Settlement Commissioner, Sargodha Division by his order, dated 20‑9‑1972 found that the transfer of the shop in the name of the petitioner herein viz. Muhammad Yaqub was not justified. In this connection, he observed that 'Muhammad Yaqub having not been an applicant, transfer of the property in his favour by the Deputy Settlement Commissioner could not be appropriately made, therefore, the name of Muhammad Yaqub shall stand deleted from the transfer documents and the transfer of the shop in suit shall read only in the name of Wali Muhammad'. The deed of association, however, was upheld with the modification that it should be read to have been executed by Wali Muhammad in favour of Shahab‑ud‑Din. This order, dated 20‑9‑1972 was not challenged by Muhammad Yaqub. However, Wali Muhammad still feeling dissatisfied in so far as the association deed in respect of Shahabuddin had not been interfered with filed a writ petition (Writ Petition No.737/R of 1972) in the High Court. This was accepted on 12‑6‑1979 and the case was remanded to the Settlement Department for .fresh decision. In pursuance of the remand order; the Additional Deputy Commissioner (G)/Deputy Settlement Commissioner, Jhang accepting the appeal of Wali Muhammad observed inter alia as follows:‑‑ "According to the report received from the Finger Print Bureau, thumb-?impressions marked `C' and `D' . on the application dated 26‑12‑1966 and Deed of Association dated 26‑12‑1966 did not tally with the right and left thumb‑impression of Wali Muhammad, petitioner. This finding of the Finger Expert is sufficient to prove that Wali Muhammad had never transferred his half share of shop in the name of his brother Muhammad Yaqub. The Deed of Association executed on 26‑12‑1966 and approved on 29‑3‑1968 was, therefore, an absolute nullity in the eyes of law. The joint transfer of shop in the name of Wali Muhammad and his brother Muhammad Yaqub had already been found defective by the Settlement Commissioner, Sargodha in his order, dated 20‑9‑1972. It is remarkable to note that the finding of the Settlement Commissioner, Sargodha which affected the interest of Muhammad Yaqub respondent was not challenged by him at any stage. This shows that he had accepted that finding as final as absolutely correct. In my view he is estopped by his conduct to reassert his interest in the disputed shop at this stage." Muhammad Yaqub thereafter challenged the order of the Settlement Commissioner dated 20‑9‑1972 passed earlier as also the order of the Deputy Settlement Commissioner dated 30‑12‑1985 passed on remand through a writ petition in the High Court. This writ petition has been dismissed with the observations that the petitioner did not challenge the order of the learned Settlement Commissioner dated 20‑9‑1972, which thus attained finality. This aspect of the matter was duly highlighted in the order of the Deputy Settlement Commissioner, dated 30‑12‑1985 whose observations have been reproduced above. Hence the writ petition was dismissed. We entirely, agree with the High Court. The order dated 20‑9‑1972 had effectively sealed fate of the petitioner herein and after his failure to challenge it for more than 14 years he was rightly found disentitled to re‑agitate his claim on the basis of the order passed in remand on 30‑12‑1985, which order did not give him any fresh cause of action. A.A./MZ302/S???????????????????????????????????????????????????????????????????????? Petition dismissed.