1982 PLP 946 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑Dispute between the parties relates to transfer 'of portion 'A' of residential property No. S. 78 R. 13, Birdwood Road, Lahore, which was originally transferred to S. M. Bashir a claimant displaced person under P. R. O. dated 22‑6‑1961. The transferee died on 18‑4‑1964 and till then be had not paid the balance of transfer price. Due to this default, the property was resumed by the Deputy Settlement Commissioner by the order dated 15‑11‑1967. On noticing from the auction list dated 30‑9‑1968 that the property was to be auctioned on 11‑10‑1968, Bashir Ahmad, a son of S. M. Bashir paid Rs. 40,000 and got the property deleted from the auction list. Bashir Ahmad, however, died on 21‑1‑1971 and no further payment was made towards the transfer price. Afterwards, Mst. Afsar Jehan Begum wife of Nasir Hussain, another son of S. M. Bashir, obtained transfer of the property under Scheme No. VIII on 19‑6‑1974. S. M. Bashir, the original transferee, left behind two sons, Bashir Ahmad and Nisar Hussain, and two daughters Zakia Khatoon and Masooma as his legal representatives, and deceased Bashir Ahmad left surviving a widow, one minor son and five daughters, out of whom three are minors. The legal representatives of Bashir Ahmad challenged the transfer of the property in favour of Mst. Afsar Jehan Begum in Lahore High Court in Writ Petition No. 1307‑R of 1977 which was allowed on 12‑1‑1980. Mst. Afsar Jehan Begum, her associates in property and 'transferees from the associates now seek leave to appeal from the order of the High Court. The High Court has held that the original transferee S. M. Bashir was not even informed, by the issue of Appendix X, of the transfer price and monthly instalments payable by him, and further that despite being intimated the department did not issue any demand notice to the legal representative of the deceased transferee for payment of transfer price and therefore the order of resumption of the property dated 15‑11‑1967 is bad in law. Moreover, by accepting payment of Rs. 40,000 the resumption order was impliedly set aside. No demand notice was also issued to the legal represen tatives of the original transferee for payment of the balance transfer price, and on these admitted facts, no valid order of resumption of the property from the name of the original transferee S. M. Bashir having been made, the property was not available for transfer to Mst. Afsar Jehan. The High Court has also examined the criticism that the relief sought for from the High Court was belated. In this regard it is observed that Bashir Ahmad after having paid Rs. 40,000 died in the year 1971, and since no demand notice to his legal representatives was issued by the department, the widow, two grown up daughters and four minor children were left with no male member and they do not deserve deprivation of their valuable rights in the property for the delay in seeking relief. Maulvi Ihsanul Haq, learned counsel for the petitioners submitted that the order of resumption dated 15‑11‑1967 still rules the field as in terms of Paragraph 3 of the Settlement Scheme No. VIII it can be recalled only on full payment of transfer price. Learned counsel further submitted that the petitioners could not be deprived of valuable rights in property by a belated challenge in Writ Petition. There is no denial of the fact that the original transferee S. M. Bashir was not even served with Appendix X regarding payment of the transfer price. Notice of resumption of property dated 15‑11‑1967 was also issued to a dead person, namely, S. M. Bashir. His son Bashir Ahmad had duly notified the department much earlier on 26‑6‑1964 that his father had died on 18‑4‑1964 and, therefore, the ejectment notice dated 27‑5‑1964 which had been issued against his deceased father was illegal and should be recalled. Bashir Ahmad bad afterwards paid Rs. 40,000 towards transfer price and by the adjustment of Rs. 15,952 from the compensation book of S. M. Bashir, the balance that remained payable was a sum of Rs. 38,

008. Since out of total transfer price of Rs. 93,960, sum of Rs. 38,008 had been paid by 1‑10‑1968 and no demand for the payment of balance was made by the department from the legal representatives of the original transferee S. M. Bashir, the High Court has rightly taken the view that the legal representatives of the deceased transferee could not be deprived of their valuable rights in the property. The criticism of delay has been examined and rightly rejected by the High Court taking into consideration all the attending facts and circumstances, including the suggestion of mala fides alleged against one of the sons of the deceased namely, Nisar Hussain. His wife, Mst. Afsar Jehan is the petitioner No. 1 herein and she had filed N. C. H. form for the transfer of the property as long ago as 30‑10‑1966 and then she filed another form on 12‑10‑1973 and obtained the transfer of the property. It is alleged that Nisar Hussain had secured the transfer of the property in the name of his wife by back‑door method and thus had deprived his two sisters and the widow and the children of his deceased brother of their shares. The view that has prevailed in the High Court is in full accord with equity and justice, and since the order of the High Court does not suffer from any error of law, we find no force in this petition. It is accordingly dismissed in limine. Petition dismissed