1999 PLP 1706 (MLD)

4. The learned Additional Settlement Commissioner after giving background of the case noted that:-- "The wooden khokha of the respondent is situated outside the piller. In fact the wooden khokha of the respondent is an unauthorised construction made by the evacuee owner on the land of Committee. The piller in dispute lends support to the wooden Khokha." He further observed that:- "The wooden khokha of the respondent gets support from the piller on the one side and for this reason this piller cannot be treated as part and parcel of the wooden khokha." Despite holding that the khokha finds support from the piller, he set aside the order of the learned D.S.C. and declared the piller in dispute as part and parcel of the shop of respondents Nos.2 and 3.

5. The learned counsel for the petitioner contends that in the garb of the demarcation proceedings the petitioner has been denuded of his transferred business premises the wooden khokha for which the P.T.D. had been issued to as far back as in the year 1963 and had never been challenged by any one has contended that the view of the learned Additional Settlement Commissioner is wholly erroneous and devoid of any basis inasmuch as when he inspected the premises after ten year of the transfer of the property, admittedly the wall A and B had been removed by the respondents Nos.2 and 3 and the other khokha had been amalgamated into the shop and the entire character of the premises had been changed and altered. According to him these subsequent developments could not be considered by him for reopening of the case and that the conditions relevant in the matter of transfer were as existing on the date of transfer of the premises. It is submitted that the learned Additional Settlement Commissioner over stepped his authority and jurisdiction and even went to the extent that the khokha transferred to the petitioner, was an encroachment made on the property of the committee. The learned counsel for the contesting respondents has supported the order of the learned Additional Settlement Commissioner.

6. The admitted position is that the property consisted of four shops and two khokhas which were owned by Khushi La'al evacuee who had let it out to six tenants. After partition, the khokhas and the shops were dealt with by the Settlement Deptt. separately. The shops were transferred to different persons whereas the khokhas to different persons. Fazal Din, the petitioner, was transferred this Khokha on the corner of shop No.4 for which he was issued P.T.D. on 7-5-1963. There was no dispute throughout after the issuance of the P.T.D. except when the respondents after purchase of shop No.4 and Khokha No.2, they removed the wall shown as A and B on the sketch plan and amalgamated the said Khokha into their shop. The piller which is shown in blue colour in the sketch plan is at the corner and outside shop No.4. It lends support to Khokha No.l, transferred to the petitioner Fazal Din. The learned D.S.C. who had approved the said sketch plan, affirmed the same as correct according to the situation of the respective premises and found this piller as part and parcel of Khokha No. 1 (wooden shop No. 1), transferred to Fazal Din, the petitioner.

7. The learned Additional Settlement Commissioner, however, proceeded on erroneous premises inansmuch as he took into account the situation prevailing on the spot as in the year, 1973 i.e. 10 years after the issuance of P.T.D. when a lot-of changes had occurred in the premises including the removal of wall A and B by the respondents and amalgamation of khokha No.2 into their shop. The learned Additional Settlement Commissioner totally ignored the fact the if the pillar is considered to be a part of the shop only then the Khokha will lose its support and, in deed, the petitioner will be denuded of his right in the property transferred to him 10 years before. He himself found that "The wooden Khokha of the respondent gets support from the pillar" but despite this finding he declared the said pillar as part and parcel of the shop transferred to the respondents. This was a self-contradictory and self-destructive approach to the matter.

8. While dealing with the case, the learned Additional Settlement Commissioner also ignored the scope of the power and jurisdiction in matters of demarcation, particularly, when the parties have been issued permanent deeds. In S. Anwar Hussain Sani v. Safraz Ahmad and 2 others (PLD 1971 SC 669) the extent of jurisdiction of the Settlement Authorities in the matters of transfer for which the P.T.D, have been issued was considered extensively. It was observed that:- "There can be no dispute with the general principle that after title has passed on to the person in whose favour a P.T.D., has been issued the Settlement authorities become functus officio to deal with that property. " With reference to permanent Transfer Rules, 1961, it was observed that:- "Under Rule 4 subject to the provisions of the Act, the Rules and the Schemes a transferee in whose favour a record of permanent transfer has been made under rule 3 shall be entitled to hold and enjoy the property and all the rights, title and interest appurtenant thereto transferred to him and to transfer or alienate the same in accordance with the normal law. Under rule 6 any person may, in writing, inform the Settlement authority concerned of the discovery of any error in any entry or about fraud or misrepresentation in obtaining permanent transfer of the property. " Further at page 674, it was observed that:- "Two type of cases are envisaged in the rules in which the settlement authorities may interfere even after issuance of P.T.Ds. Firstly cases which suffer from an error of a type which can be corrected without embarking upon a formal inquiry or holding adverse proceeding cases of clerical mistake or errors of like nature will fall within this category of cases. Second type of cases dealt with under Rule 6 and under Rule 7 are those in which transfer or allotment of an evacuee property was obtained by means of misrepresentation or fraud. The Settlement authority may under the second part of the rule 6 or rule 7 vary, modify or cancel the Permanent Transfer Deed issued to such a transferee if on holding a proper inquiry and giving the transferee a opportunity to be heard it is found that he has been guilty of misrepresentation anti fraud .... As no fraud, misrepresentation or other serious allegation was alleged against the transferees before us the main provision of Rule 6 and Rule 7 had no application in either appeal."

9. In the context of the facts of the cases before their Lordships it was found that if the claim of the respondent was found to be correct in that case, the transfer deed issued in favour of the appellant before their Lordships was to be modified and four rooms included in the transfer of the house in his favour were to be taken away from him and made over to the respondent. It was, therefore, held that" this amounted to a major change in the transfers in favour of the appellant and Abdul Majid, and could not be described as an error which the settlement Authority may correct without holding an inquiry".

10. The ratio of Anwar Hussain Sani's case (supra) is aptly applicable to the instant case inasmuch as there is no allegation of misrepresentation or fraud against the petitioner in seeking the transfer or the issuance of P.T.D. in his favour. The admitted position on the record and also as observed by the learned D,S,C. with reference to the record of 1946-47 was that Khokha transferred to the petitioner has throughout been dealt with separately even by the evacuee and had been let out by him. The same constituted as an independent business premises and the P.T.D. was issued to the petitioner accordingly. The learned Additional Settlement Commissioner wrongly assumed the same as an encroachment on the basis of the spot inspection carried out by him in the year, 1973 i.e. after 10 years of the transfer and issuance of the P.T.D. Admittedly, lot of developments had taken place during this period including the removal of wall by respondents and amalgamation of Khokha No.2 into their shop. He, therefore, acted illegally in declaring the pillar to be the part and parcel of shop alone. His view was self contradictory inasmuch as he himself had found that the Khokha transferred to the petitioner Fazal Din get support from the said pillar. By the transfer of the pillar to the respondents Nos.2 and 3 exclusively, he denuded the petitioner Fazal Din of the use of his business premises which the learned Additional Settlement Commissioner could not have done in view of S. Anwar Hussain Sani's case.

11. Another judgment the principle laid down in which is applicable to the instant case is Ali Muhammad v. Haji Hussain and 2 others (PLD 1975 Karachi 971). That was a case where after the issuance of P.T.D. the matter was sought to be reopened through a miscellaneous application for the demarcation of the respective premises; and at page 977 it was held as follows:-- "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 to the Additional Settlement Commissioner or any other Settlement Authority to deal with the property transferred to the appellant, has also been adopted in a Karachi decision, Mst. Jajiani 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 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 builder decided to obtain the remaining 1/4th portion also through circuitous way of making an application for demarcation." In the present case as well as the respondents adopted similar course and made application after insurance of P.T.Ds. and after purchase of the shop. Thus the learned Additional Settlement Commissioner clearly acted beyond the jurisdiction in nullifying and eroding the transfers, having attained finality ten years before the impugned order. His order is, therefore, liable be declared as without lawful authority.

12. In view of the above, the order of the learned Additional Settlement Commissioner dated 19-11-1973 is declared to be without lawful authority and of no legal effect. The petition is accepted, with to order as to costs. A.A./F.58/L Petition accepted.