P L D 1966 (W (PLP)

2. No appeal or revision was ever filed by the respondent against the above order of the Deputy Settlement Commissioner as the transfer was made according to their consent. However, Allah Ditti filed a time‑barred appeal in the Court of Additional Settlement and Rehabilitation Commissioner, Lahore Division, Lahore, wherein she asked for the transfer of property No. 7, Ward No. 2, Sheikhupura also. The Additional Settlement Com missioner rejected her appeal with the following observation:‑ "Even on merits the appeal has no force. The appellant applied on CS Form for the transfer of the shop No.

40. She got it. She cannot be given a part of an other property No. 7, Ward No. 2, Sheikhupura. She never applied for it. Therefore, on merits the appeal has no force and is rejected."

3. It appears that sometime early in 1962 Ghulam Niaz respondent filed a suit for possession by partition of the property in dispute against the petitioner Mst. Allah Ditti but I have been informed by the learned counsel for the petitioner that the respon dent withdrew that suit after he had obtained a favourable decision in his favour from the Settlement Authorities. During those very days there were proceedings between the husband and wife under section 145, Cr. P. C. and the property was sealed. An applica tion for temporary injunction was filed by Ghulam Niaz respon dent but it was dismissed by the Administrative Civil Judge, Sheikhupura, on the 25th of January 1962 and the learned Magis trate also disposed of proceedings under section 145, Cr. P. C. with the following observations: "I am, therefore, sure that Mst. Allah Ditti was definitely in the possession of the house in question even before or after 8‑5‑

61. Under the above circumstances I think it is appropriate to maintain the status quo of the parties and allow them to occupy the same house jointly."

4. Learned counsel for the respondent Ghulam Niaz has Candidly conceded before me that the appeal filed by the respondent against the order of Deputy Settlement Commissioner dated the 31‑12‑59 was badly barred by time. In para. 16 of the written statement filed on behalf of respondent Ghulam Niaz it is also admitted that against the order of transfer a review application was filed but the Additional Settlement Commissioner had rejected that application on 28‑8‑

61. In these circumstances it appears strange that the Additional Settlement Commissioner should have entertained a time‑barred appeal without adverting, in the first instance, to the previous order passed by him whereby he had refused permission for the review of the order of transfer dated the 31st of December 1959. . He also paid no attention to the question of limitation. The appeal of Ghulam Niaz respondent was not accompanied by any application for condonation of the delay nor any sufficient cause was shown in the grounds of appeal for the late filing of the appeal. This aspect of the case remained un‑attended at the hands of appellate authority deciding the appeal of respon dent. In his order dated the 23rd of May 1962 the Additional Settlement Commissioner confined himself to the question of written compromise between the parties in accordance with the instructions contained at page 70 of the Settlement Manual (Old Edition) and remanded the case after a period of more than two years and upset the settled rights of the parties with the remarks that the compromise should have been submitted before the disposal of their forms and without that deed the transfer was wrong and ineffective.

5. In this context it will be useful to reproduce the relevant portion of the instructions pertaining to the joint transfer as printed at page 70 of the Settlement Manual (Old Edition). It reads as under:‑ "In case the persons occupying a whole building or a unit or prepared to take it jointly and file written agreement to this effect, transfer may be effected in accordance with the terms of agreement between them. Such mutual agreement should be encouraged by the Deputy Settlement Commissioner." To my mind these instructions provide only a rule of guidance to the Deputy Settlement Commissioner and are not mandatory in nature. The interpretation given by the Additional Settlement Commissioner in his impugned order to the above instructions is highly technical and too narrow. The intention which can be gathered from these instructions is that the written agreement is required to be filed to safeguard against future litigation and to avoid mischief and foul play at the hands of the parties having some weakness of character, bat it is not a condition precedent before a joint order of transfer, could be passed by the Deputy Settlement Commissioner. There may be circumstances where a written agreement must be insisted upon by the Deputy Settlement Commissioner for example where the parties were stranger so that the likelihood of their going back upon their premises was avoided. But in the present case the relations of husband and wife were cordial at the time when the order of joint transfer was made in their favour and both had expressed their willingness to accept the house jointly and asked for a joint P: T. O: In these circum stances if the Deputy Settlement Commissioner did not obtain a written agreement as required by the above instructions, I do no see that he committed an illegality of the nature which should destroy the solemn agreement made by the husband and wife in his presence.

6. The conduct of the respondent in this case in indicative of acquiescence on his part. He filed no appeal or revision against the order of transfer dated the 31st of December 1959 nor any appeal or revision was filed by him when the Additional Settle ment Commissioner refused him permission for the review of the order of transfer on 28th of August 1961. The order of transfer had, therefore, become final and could not be legally set aside by the Additional Settlement Commissioner on a hopelessly time- barred appeal. About the view which I have taken about the acquiescence of the respondent, I am fortified by another reason also. The respondent filed a civil suit against the petitioner for possession of the house by partition of his share. This suit was withdrawn by him as a result of his success before the Additional Settlement Commissioner and to triumph over the matter he also divorced the petitioner. I think that this conduct of the respon dent by itself was sufficient to estop him from challenging the validity of the joint order of transfer passed by the Deputy Settle ment Commissioner. The Settlement Authorities also ignored the provisions of section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This section declares that the orders passed by a Settlement Authority are final and that finality could not be taken away by the Additional Settlement Commissioner on a mere technical ground without adverting to the history of the case and without looking into the question of the limitation.)

7. In Azmat Ali v. Chief Settlement and Rehabilitation Com missioner (P L D 1964 S C 260) their Lordships of the Supreme Court have held as under:‑ "A further question that arose for consideration was as to whether Khan Farzand Ali Khan himself had acted in the proper exercise of his jurisdiction in dealing with the revision on merits without considering as to whether the order dismissing the appeal on the ground that it was barred by limitation was proper or not. There was nothing in the order of Khan Farzand Ali Khan to show that he was even conscious that any question of limitation arose." In this case also the Additional Settlement Commissioner did not mention that he had earlier refused permission for the review of the order of transfer and that the appeal was barred by time by more than two years. No such consciousness is visible from the tenor of his order and, therefore, the above principles laid down by their Lordships of the Supreme Court will apply with equal force to the order of the Additional Settlement Commissioner dated the 23rd of May 1962 and the same is hereby quashed.

7. Another important aspect of the case which was lost sight of by the Settlement Authorities is that the petitioner had claimed that she was in possession of the property in her own right within the meaning of the notification of the Central Government (No. 3223‑PI‑Rch. 60), dated 7‑3‑1960, (page 123 of the Settlement Manual Old Edition). This point was ‑urged by her in ground No. 5 of her revision petition filed before the Settlement Commis sioner Lahore Division. But no attention was paid by the Settlement Commissioner to this legal proposition in his impugned order. In this case at the time when both the parties filed their respective CH forms their relations were not strained and they were living as husband and wife. Each one of them it seems was claiming the house in his own right and not on the basis of the possession of the other side. The notification declares that the wife should also be deemed to be in possession. In these circumstances both of them could be considered to be in undisputed possession of the property with effect from the same date and both being claimants the house had rightly been transferred jointly in their name accord ing to the instructions mentioned above on the basis of their consent. There were no equities of the respondent to justify interference on the part of the Additional Settlement Commissioner after a lapse of more than two years.

8. Now remains in field the orders which were passed by the. Settlement Authorities on the basis of the above order of remand. This presents no difficulty. All subsequent proceedings emanated from the above void order of the Additional Settlement Commissioner, which has been quashed by me and under the law those cannot be held to be sustainable and are also liable to be quashed because their foundation itself was on a void order. In Yusuf Ali v. Muhammad Aslam Zia (P L D 1958 S C (Pak.) 104) their Lordships of the Supreme Court observed as under:‑ "And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the super structure of rights and obligations built upon them, must, unless some statute or principles of law recognising as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded." Applying the above principle I hold that the order of the Deputy Settlement Commissioner passed in remand proceedings dated 18‑10‑62 and the order of Additional Settlement Commissioner dated 1‑11-62 and that of the Settlement Commissioner 6‑12‑62 are illegal and without any lawful authority. The result of my, finding is that this petition is accepted and the order of joint transfer dated the 31st of December 1959 passed by the Deputy Settlement Commissioner in favour of both the parties is restored. In view of the success of the respondent before the Settlement Authorities I do not propose to burden him with the costs of these proceedings. S. Q. Petition accepted.