1974 PLP 134 (SCMR)

Ch. Muhammad Anwar Buttar, Advocate Supreme Court instructed by S. Wajid Hussain, Advocate‑on‑Record for Respondent No.

3. Date of hearing. 23rd October 1973. WAHEEDUDDIN AHMAD, J.‑This appeal by special leave is directed against the order of the former High Court of West Pakistan, Lahore dated the 14th December 1965 in Letters Patent Appeal No. 290 of 1965. By this order, the Letters Patent Appeal was dismissed in limine. The dispute between the parties is in respect of shop/Choubara No. 570, Ward No. 3, Multan. This property was included in the list of shops proposed to be auctioned by publication appearing in the Daily Imroze dated the 8th May, 1960. The reserve price was Rs. 4,

500. This property was auctioned on an earlier occasion on the 22nd February 1960. One Qudratullah gave a bid of Rs.16,000 but backed out ultimately. On the 20th May 1960, appellant No. 1 Ayaz Muhammad who is a claimant displaced person gave the highest bid of Rs.7,500 which was accepted by the auction committee and approved by the Additional Settlement Com missioner on the 25th May, 1960. A P. T. O. was issued in favour of appellant No.

1. On an application made by him on the 3rd March 1962, the names of his sister and widowed mother were also associated with him .~,vide order of the Deputy Settlement Commissioner, Multan, dated the 20tb April, 1962. A P. T. D. was issued in the names of the appellants on the 17th July 1962. One Aziz Beg was in occupation of the shop on the ground floor. His son‑in‑law Muhammad Ali respondent was in occupation of the Chaubara on the first floor. Appellant No. 1 served both the occupants with notices dated the 25th August. 1960 demanding the rent. A fresh notice was served on the 1st March 1962. This notice was received by Muhammad Ali respondent on the 4th March 1962. As the premises were not vacated by the respondent and Aziz Beg, the appellants instituted separate ejectment proceedings against them. Azis Beg was ejected while ejectment pro ceedings against Muhammad Ali respondent are pending before the Rent Controller. After the institution of the ejectment proceedings against Muhammad Ali, he submitted a misc. application on the 31st August 1964, before the Deputy Settlement Commissioner, Multan asking for the issuance of an appendix for the property in dispute. The Deputy Settlement Commissioner, by his letter dated the 24th September 1963 forwarded the application for disposal to the Additional Settlement Commissioner. This application was dismissed on the 21st October 1963. Muhammad Ali respondent filed a revision petition before the Settlement Commissioner. Multan, which was accepted by him on the 1st October, 1965. He set aside the two auctions in favour of Qudratullah and appellant No. 1 and also transferred the property in dispute to Muhammad Ali respondent. The appellants challenged this order in writ petition in the former High Court of West Pakistan, Lahore but the same was dismissed in limine by a learned Single Judge of the High Court, on the 22nd November, 1965. A letters patent appeal was also dismissed in limine by a Division Bench of the former High Court of West Pakistan, Lahore, by order dated the 14th December 1965. The appellants filed a petition for special leave to appeal. Leave was ranted to the appellants to consider the following contentions: (i) That the Settlement Commissioner acted illegally in setting aside the auction sale in favour of the appellant; (ii) that in the absence of any entitlement order, the P. T. O. issued in favour of Muhammad Ali respondent cannot prevail against the P. T. D. issued to the appellant in respect of the disputed house; and (iii) that Muhammad Ali having already secured transfer of property No. 316, Ward III, Multan, was not entitled to the transfer of the disputed house. Raja Abdul Razzaque, learned Advocate‑on‑Record for the appellants, has contended that the Settlement Commissioner was not justified in setting aside the auction in favour of appellant No. 1 as Muhammad Ali respondent has already been transferred another shop Chaubara No. 318/111, Multan, vide order of the Deputy Settlement Commissioner dated the 23rd December 1965. He contended that respondent Muhammad Ali is not entitled to multiple transfer under the law. It is admitted by the learned counsel for the respondent that another shop/Chaubara No. 3i8/III, Multan, has been transferred to the respondent. In these circumstances, it was necessary for the Settlement Commissioner to consider whether respondent Muhammad Ali was entitled to the transfer of another shop. This aspect of the case was not considered by the Settlement Commissioner. In our opinion, the Settlement Commissioner was not justified in setting aside the auction in favour of appellant No. 1 without considering the question whether respondent Muhammad Ali was entitled to the transfer of another property after he has been transferred property No. 318/111, Multan. We would, therefore, set aside the orders of the Settlement Commissioner and the High Court. The case is sent back to the Settlement Commissioner to consider the question whether the property in dispute is a shop or a house and whether respondent Muhammad Ali is entitled to the transfer of another property. In case, it is found that Muhammad Ali respondent is not entitled to another property, the transfer of the property in dispute in favour of the appellants will be maintained. The costs of this appeal will be the costs in the cause before the Settlement Commissioner, Multan. Appeal accepted. Case remanded.