1975 PLP 101 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑

The dispute in this appeal by special leave relates to two rooms in house No. 371, Ward 9, New City Multan which being admittedly in possession of respondent No. 2 a non‑claimant, were transferred in the first instance by the Deputy Settlement Commissioner in favour of the appellant a claimant alongwith the remainder portion of house No. 371, vide order, dated 20‑12‑1959. This was followed by the issuance of a P.T.O. and payment of price by the appellant who initiated proceedings for the ejectment of respondent No. 2 in the Court of the Rent Controller which were preceded by two notices in this regard. It was at this stage that in a belated appeal, respondent No. 2 challenged before the Additional Settlement Commissioner the original order of transfer, dated 20‑12‑1959 made by the Deputy Settlement Commissioner in favour of the appellant and also applied for condonation of delay.

2. Before the Additional Settlement Commissioner the position taken up by the appellant herein was that having already secured the transfer of another house No. 426 and being a non‑claimant, respondent No. 2 was not entitled to the two disputed rooms in house No. 371 for which he had agitated in appeal. Finding house No. 371 to be divisible, the Additional Settlement Commissioner, vide his conditional order dated 17‑5‑1961 re manded the case to the Deputy Settlement Commissioner with the direction that the portion in occupation of respondent No. 2 may be transferred in his favour in case he bad not secured the transfer of residential accom modation in house No.

426. Alternatively, his appeal was to be treated as rejected.

3. Having looked Into the matter on remand, the Deputy Settlement Commissioner took the view that property No. 426 was transferred to res pondent No. 2 as a shop on his N.C.S. Form which did not stand in the way of the transfer of the two disputed rooms in his favour. The earlier order of transfer in favour of the appellant was therefore, modified to the extent that he was deprived of the two rooms in house No. 371 which were transferred to respondent No. 2, vide order dated 14‑11‑1961. Annexure 'E' at page 44 purporting to be a certified copy of this order is rather in complete and is confined to the operative part only. However, from the perusal of the original order which was summoned in the case, two points clearly emerge : Firstly, that house No. 371 was found to be divisible, and Secondly, that property No. 426 was found to consist of two shops of which one was transferred to respondent No. 2 while the other being in occupation of one Faqir Muhammad a local, was resumed and ordered to be put in the auction pool.

4. Feeling aggrieved, the appellant unsuccessfully challenged the above findings successively in appeal, revision and writ petition, all of which were dismissed. It was held throughout both on the settlement side as well as the High Court that respondent No. 2 being transferee of a shop in property No. 426 was also entitled to the transfer of the two disputed rooms in house No. 371 which was divisible.

5. Leave was granted to the appellant to consider whether the Deputy Settlement Commissioner had no jurisdiction to review on remand the case relating to premises No. 426, the matter having been remanded only in respect of house No. 371 and particularly when no power of review vested in him under Clause Oil) (a) of subsection (1) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

6. Apparently being conscious of the weakness of his client's position, the appellant's learned counsel tried to make out an altogether new case before us. Since by his order, dated 17‑5‑1961 the Additional Settlement Commissioner had directed the Deputy Settlement Commissioner to ascer tain as to whether respondent No. 2 was transferred house No. 426, it could hardly be contended that the Deputy Settlement Commissioner had reviewed his earlier order. It was nothing but an ascertainment of the correct position made by him in compliance with the direction of the Additional Settlement Commissioner and as such the question of reviewing his own order on which point leave was granted by this Court did not arise. This should have been the end of the matter but we also heard the learned counsel on other points.

7. It was contended before us : Firstly, that a portion of premises No. 426 could not have been transferred to respondent No. 2 on the basis of his N.C.S. Form, and Secondly, that the Settlement Authorities had erred in condoning the delay in the filing of appeal by respondent No. 1 without conscious application of mind to this question. Reliance was placed on Ahsan Ali and others v. District Judge and others (PLD1969 SC167).

8. Besides being irrelevant, the first contention is obviously based on misreading of the relevant transfer order, the schedule thereto and the P.T.O. wherein property No. 426 has been consistently shown as comprising two shops. The basic premise on which the learned counsel tried to build up his case namely, that this property consisted partly of a residential portion and partly of a shop is factually incorrect. It was throughout found to comprise two shops of which only one was transferred to respondent No.

2. The contention is, therefore, over‑ruled as being wholly miscon ceived.

9. The second contention wherein the condonation of delay in the entertainment of a belated appeal without conscious application of mind is questioned, can be thrown out on the short ground that the appellant never challenged the order of remand made in appeal. Being obviously satisfied with this order, it was only in the second round of litigation that the appellant challenged the transfer of the two disputed rooms in favour of respondent No. 2.

10. In view of the above position, there is no force in this appeal, which is dismissed. We would not have hesitated to burden the appellant with costs but for the reason that the appeal was heard ex parts against the respondents. We, therefore, make no order as to costs. Appeal dismissed.