P LD 1993 Karachi 401 (PLP)

The above Revision is directed against the judgment and decree dated 31-5-1989, passed by the 1st Additional Di ' strict Judge, Sanghar, whereby he dismissed the Civil Appeal No.7/1988, filed by. the applicant against the judgment and decree dated 29-11-1983, passed by the learned Senior Civil Judge, Shahdadpur in F.C. Suit No.21/1983, which was filed by respondent No.3.

2. Briefly the facts are that respondent No.3, Muhammad Shafi s/o Rustam (hereinafter referred to as the said respondent), filed aforesaid Suit against the applicant and respondents Nos.1 and 2, in respect of property, bearing Custodian No.11-B/145, corresponding to City Survey No,B-1237 situated in Mohallah Janipura Shahdadpur, District Sarighar (hereinafter referred to as the suit property), stating that he was a displaced person and was in possession of the aforesaid property since 1949. In the year 1959, he filed an application in prescribed NCH Form for transfer of the suit property as an occupant thereof. The Form was registered at serial No.110 of CSC-2 Register The said respondent is an old and disabled person, nevertheless he repeatedly visited the office of respondent No.2, the Deputy Settlement Commissioner, Sanghar at Nawabshah, but did not get any reply until before 31-12-1977, when order was passed on an application filed by him, to the effect that no action can be taken on his application as the aforesaid property was already transferred and permanent transfer deed was issued to the applicant. The case of the said respondent is that respondent No.2 without proper scrutiny and verification from the record of Settlement Department, without any intimation to the said respondent and without disposal of the form riled by the said respondent had illegally transferred the said property to the applicant. He had, therefore, filed F.C. Suit No.335/1978 in the Court of Senior Civil Judge, Nawabshsh, but by order dated 19-2-1983, the plaint in the said suit was returned to him for presentation to proper Court. The said respondent on 27-3-1983, presented the said plaint in the Court of Senior Civil Judge, Shahdadpur. The said respondent sought declaration that the transfer of the aforesaid property in the alleged earmarking proceedings in favour of the petitioner was illegal, fraudulent, mala ride, collusive and without jurisdiction and directions were sought against respondent No.2 for disposal of his form and injunction against the applicant, restraining him from disturbing his possession. The applicant filed his written statement in which ' he admitted that the property in dispute was in possession of the said respondent and that the property was officially transferred to him in the earmarking proceedings. It was pleaded that the form filed by the said respondent was rejected,by the Settlement Department to the knowlege of the said respondent but he kept silent and filed application before respondent No.2, when he was served with notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act XXVIII of 1958 (hereinafer referred to as the Act). He also denied the allegation of fraud, collusion and illegality of the order of transfer in his favour. Legal pleas were raised to the effect that the suit was barred by limitation and under the provisions of the said Act.

3. The said respondent examined himself and produced documents. He also examined one Siddiq, the Councillor of the ward in which the property is situated. The applicant also examined himself and one Anwar Hussain, a clerk of Evacuee Property Branch in the office o[ Deputy Commissioner, Sanghar, who also produced record in respect of the said property. The learned Civil Judge framed as many as nine issues. On assessment of the evidence on record and consideration of the points of law raised before him, he reached the conclusion that the suit was not barred by time or the provisions of the Act, that the said property was transferred to the applicant in the earmarking during the pendency of NCH Form of the said respondent and as such the transfer of the property to the applicant was mala ride and void ab initio and that the said respondent was entitled to transfer of the suit property. He accordingly decreed the suit. The appeal filed by the applicant against the aforesaid judgment and decree was dismissed. 4. 1 have heard learned counsel Mr. Khursheed Alam - Khan for the applicant and Mr. Muhammad Ali Chohan for the respondent. ???????????????? In this dispute the crucial points that require determination are whether the said respondent had riled valid NCH Form, whet I her the property was disposed of during pendency of the aforesaid Form and whether the transfer in the earmarking proceedings was procured fraudulently and illegally, apart from the two legal issues raised with regard to the maintainability of the suit and limitation. The applicant did not deny the fact that the said respondent had filed the aforesaid. Form. It was, however, contended that the Form filed by him was invalid, inasmuch as the Custodian number of the property was not disclosed in the Form. The learned Advocate for the applicant failed to point out any provision in the said Act or the scheme framed thereunder or any case law on the subject to reach the conclusion that the above omission rendered the Form invalid. The learned Advocate for the applicant urged that evidence on record shows that there is entry in Column No.7 of the CSC-2 Register that the aforesaid Form stood rejected/recorded and, therefore, the property was rightly included for disposal under Settlement Scheme No. V for disposal by earmarking. Consequently, it was transferred to the applicant and Provisional Transfer Order dated 16-2-1960 was issued to him, followed by the Permanent Transfer Deed dated 11-5-1972.

15. The applicant had examined Anwar Hussain, Clerk of the Settlement Department, who disclosed in his evidence that there is no order on record pertaining to rejection of the Form submitted by the said respondent and that the record of the Settlement Department did not show that any notice was issued to the said respondent about the rejection of the Form. The said respondent in his evidence had produced letter dated 17-9-1986, issued under the signature of Deputy Commissioner, Evacuee Branch, Sanghar as Exh.53, which confirms the fact that though the entry of the words "Rejected" and "Record" is there in the said Register but the word rejected seemed to have been overwritten and there was no signature or initial against either of the above words in the said Register. The said witness of the applicant admitted that the aforesaid letter was issued from his office. In view of the above evidence and the relevant law, the said entry appears to have been made unauthorisedly.

6. The transfer of properties acquired under the Displaced Persons (Compensation and Rehabilitation) Act was regulated by the said Act, the Schedule thereto and the Schemes framed thereunder. Para.1 of the Schedule pertains to the transfer of house in possession of a claimant, para.2 to the transfer of house in possession of a non-claimant displaced person and para.3 to a house in possession of a local. Para.4 thereof provides that a house, not transferred under the said first three paras., shall be available for transfer to any claimant who applies in that behalf. Under the said Schedule, therefore,. the respondent being a non-claimant and having applied for transfer of the house, was to be given priority and only if he had failed to apply for the transfer or having applied for transfer was found disentitled thereto or failed to pay the consideration thereof, the provisions of para.4 of the Schedule could have come in operation. Settlement Scheme No.1 framed under section 16(l)(b) and (c) of the said Act ' provided for transfer of houses and shops to claimants, non?claimants, displaced persons and locals, in possession of the houses or shops. Para.6 of the said Scheme provides that on receipt of an application, the Deputy Settlement Commissioner shall enter it in CSC-2 Register, assign the number to it and issue a receipt. Para.7 relates to the scrutiny of applications Ad provides that where the Deputy Settlement Commissioner finds the application not in conformity with the rules in material respects or that it does not contain essential information, he shall return both copies of application with the memorandum of objections as specified in Appendex VI and in case the applicant does not re-submit the application within 15 days, the Deputy Settlement Commissioner may, on sufficient cause being shown, extend the time by 15 days and if the objections are not complied within the extended time,.the case shall be consigned to record. From the material brought on the record it is evident that although the Form filed by the said respondent is alleged to have not mentioned the Custodian number therein, it was not returned to the said respondent. In absence of any steps as required to be taken tinder para.7, the Deputy Settlement Commissioner had no power to reject the Form and as noted above, and it may be emphasised that no order of rejection is available on record.??????????????????????????????????????????????????????????????????????????????????????????????? The burden of proof of the fact that the Form submitted by the said respondent was disposed of in accordance with law was on the shoulders of the applicant. The material brought on record does not establish that the Form of the said respondent was actually rejected by the Settlement Authorities. On the contrary, the evidence shows that there is no order in existence relating to the rejection of the said Form and the said respondent was never informed about the rejection of the Form. The entries in Column No.7 of CSC-2 Register have been rightly rejected by the Courts below as they are not based on. any order passed by any competent authority and they are not signed or initialled by any officer, therefore, the conclusion is justified that the Form of the said respondent w as pending and was never disposed of the learned counsel for the said respondent extensively referred to the case-law, in which above provisions of law have been considered. In Muhammad Ashraf and 2 others v. Muhammad Usman And 8 others (1979 SCMR 403), NCH Form was rejected in the absence of the applicant's successors and the order of rejection was not conveyed to the said successors. It was held that the Form was not disposed of according to law. In the case of Abdul Jabbar Khan v. Additional Settlement and Rehabilitation Commissioner, Hyderabad P L D 1964 Kar. 364, Waheeduddin, J. has held "in my opinion if any property is auctioned at a time when the applications of the persons claimingit are still pending, the auction cannot bind the rightful claimant!'. In the case of Gul Muhammad v. Settlement Commissioner PLD 1968 Kar. 669, the auction of the property during the pendency of the LH Form was declared to be unlawful. Similar view was earlier taken in the case of Altaf Hussain v. Shabbir Hussain PLD .1962 Lah.

449. In Mujeeb-un-Nisa Begum and 4 others v. Additional District Judge & Settlement Commissioner, Sanghar PLD 1978 Kar. 979, it was held that the order transferring the property to the petitioner in any manner, without giving an opportunity of hearing to such persons who were entitled to transfer of the property and had filed the prescribed Form, was void ab initio. It was further observed, "It is an unquestioned position of law that an order, which is void ab initio, as stated above, is a nullity, does not require to be set aside in appeal or in any other proceedings." In Abdul Hameed v. Sardar Begum (1977 SCMR 227), the respondent's NCH Form, which was duly entered in CSC-2 Register was not considered and the property was transferred to the appellants. A Division Bench of the Lahore High Court quashed order of transfer in favour of the ~ appellants and remanded the me for fresh decision. Appeal filed before the Supreme Court was dismissed. It was observed that the respondent was entitled to be heard before disposal of the property by the Deputy Settlement Commissioner and the entitlement could not be negatived simply on the ground of limitation. Since the possession of the said respondent of the property in dispute has been admitted and it has been established that h e had submitted the Form on 20-10-1959, which was not disposed of , as required under the law, the said Form for all purposes wag pending and consequently the alleged inclusion of the said property in the earmarking scheme and the alleged transfer thereof to the applicant on 1-2-1960 was illegal and without jurisdiction.

7. The next important issue is whether the property was in fact and validly transferred to the applicant, apart from the fact that the inclusion of the property for disposal under para. 4 of the Schedule to the Act, without disposal of the NCH Form riled by the applicant, on the face of it, is without jurisdiction. The provisions of Settlement Scheme No. V, which partain to transfer of the available properties to the claimants by drawing of lots under Para.4 of the Schedule to the said Act, specifically provide that the lists of such available properties are to be prepared in accordance with instructions as may be issued by the Chief Settlement 1:~ommissioner. Para.6 of the Scheme provides that the application received under the said Scheme shall be entered in a Register to be maintained for that purpose and the application shall be scrutinised by the authority concerned and thereafter a date is to be fixed for the drawing of lots and simultaneously the list of houses for which lots are to be drawn on that day is to be displayed on the Notice Board outside the office of the authority. It is provided that the lots are to be drawn in the presence of three officers of the Settlement Organisation in accordance with the instructions issued by the Chief Settlement Commissioner. The lists of such properties, which are available for disposal under para.4 of the Schedule, are required to be published in the Official Gazette. The learned advocate for the said respondent invited my attention to the evidence of Anwar Hussain. He deposed that there was'no order for inclusion of the property for disposal by earmarking. The record brought by him did not show that any notice was affixed on the Notice Board of the Deputy Settlement Commissioner for disposal of the said property in earmarking. The documents produced by the said Anwar Hussain, allegedly pertaining to the disposal of the property in earmarking proceedings, do not bear the signature of any Officer of the Settlement Department. There are no proceedings recorded in the rile pertaining -to disposal of the property in earmarking Scheme. There is no record to show that the lots were drawn. There are no signatures even on the Scrutiny Form. There is no material on the record that the scrutiny was done by the three officers of the Settlement Department. There is no order in existence transferring suit property to, the applicant. It is not understandable as to on what basis the alleged Provisional Transfer Order and Permanent Transfer Document were issued to the applicant. Thus it is very difficult to believe the version of the applicant that the property was transferred to him in earmarking proceedings. The applicant did not produce the Provisional Transfer Order alleged issued to him on 1-2-1960. He had produced the Permanent Transfer Document allegedly issued to him, which is dated 11-5-1972. The said document also does not refer to the order pertaining to issuance of PTO or the number or date of PTO. It only refers to some order passed by Assistant Settlement Commissioner & Rehabilitation Commissioner, Nawabshah on 1-2-1960. The said order has not been produced. The applicant observed meticulous silence after obtaining transfer documents in his name, first allegedly in 1960 and then in 1972, until 28-11-1977, when he sent notice under section 30 of the Act to the said respondent. The Courts below rightly on the appraisal of the evidence reached the conclusion that the property was transferred to the applicant during pendency of NCH Form of the said respondent and without following the procedure as laid down by law and declared the transfer of the suit property to the applicant as mala ride, illegal and without jurisdiction.

8. The learned advocate for the applicant contended that the suit filed by the said respondent was barred by limitation. He relied on Article 95 of the Schedule to the Limitation Act, 1908 which prescribed limitation of three years to set aside a decree obtained by fraud or for other relief on the ground of fraud from the date when the fraud becomes known to the party wronged. The said Article is not applicable to the circumstances of this case. It does not apply where the plaintiff is not a party to the decree or to the fraudulent transaction. The fraud contemplated by the said Article is a fraud practised upon a party to a decree or transaction in which the fraud was committed. On the other hand, the learned counsel for the said respondent submitted that residuary Article 120 will be applicable to the facts and circumstances of this case which provides period of six years for suit for which no period of limitation is provided elsewhere in the said Schedule, from the date when the right to sue accrues. The learned advocate for the applicant was not in a position to controvert the above submission. He, however, contended that the said respondent had come to know about the rejection of his Form and transfer of the property to the applicant when order dated 12-2-1964 was passed on his application dated 11-2-1964, whereby he had communicated custodian number of the property in dispute. It was urged by him that the limitation is to be computed from 12-2-1964, when the cause of action accrued to him and accordingly the suit was barred by limitation, even if Article 120 is attracted. No such case was pleaded or urged before the Courts below. There is no material on record to show that the said order was passed in presence of the said respondent or it was communicated to him. There is also no conclusive evidence on record to hold that the said application was in fact riled by the said respondent. Seen in the background of, punctitious observance of secrecy by the applicant to keep the said respondent in abysmal oblivision about the transfer of the disputed property in his favour over a long period after procuring permanent transfer, under the circumstances of this case, is by itself sufficient to draw inference that the said respondent was kept unaware *about the aforesaid order dated 12-2-1964. The above submission of the learned counsel for the applicant is, therefore, without any merit.

9. The said Act was repealed by the Evacuee Properties and Displaced Persons Laws (Repeal) Ordinance (XV of 1974), which was replaced by the Evacuee Properties and displaced Persons Laws (Repeal) Act (XIV of 1975) which came into force with effect from 1-7-1974. The said respondent had approached the Deputy Settlement Commissioner with his application dated 7-11-1977 for transfer the property, when the applicant had started claiming the property on the plea that it was transferred to him. The Deputy Settlement Commissioner, Nawabshah in his order dated 31-124977 observed that he was competent to take any action on the above application as the Permanent Transfer Deed was already issued to the applicant on 29-4-1972. In January, 1979, the said respondent riled the suit in the Court of Senior Civil Judge, Nawabshah, which was returned to him on *22-2-1983, under the orders dated 19-2-1983, passed by the Ist Senior Civil Judge, Nawabshah and the suit, from which the present Revision arises, was riled on 27-3-1983 before the Senior Civil Judge, Shahadpur. If the limitation is to be computed from 31-12-1977, when the order was passed, the suit is in time, having been filed G within six years from the date when the right to sue accrued to the said respondent.

10. It was next contended by him that the suit was barred under sections LA 22 and 25 of the said Act. Suffice to say that the suit having been riled after n repeal of the said Act, the said provisions are no more attracted.

11. Therefore, find no justification to interfere with the concurrent findings of the Courts below. The above article MMOnS for the rihort ordt"T dated 3-9-1992, whereby the above Revision Application was dismissed. AA/S -983/K Revision dismissed