P L D 1969 Lahore 698 (PLP)

He further observed :‑ "I find further that Ainul Haq was examined by the D. S. C. concerned on 2‑7‑59 (page 15), hence his contention that he was not summoned or heard is untenable; that respondent Muhammad Jan was issued a P. T. O. much earlier to the issuance of P. T. O. to the petitioner Muhammad Ibrahim ; by that time the property was not available for transfer to him. The P. T. O. in his name is, therefore, illegal and ineffective. It was rightly cancelled by the Courts below." These orders are being challenged in the present writ petition before me.

3. In support of the petition. Mr. Q. M. Hafeez, learned counsel for the petitioner, has contended that the petitioner is a person of unsound mind and the CH Form was filed on his behalf in terms of Paragraph 5 a of Settlement Scheme No. I through his guardian, Ainul Huq, who is one of the sons of the petitioner. He further contended that from the very beginning the case of the petitioner was that he had disappeared and his whereabouts were not known and, therefore, it could not be said that it was for the first time that a case was set up that the petitioner was a person of unsound mind. According to the learned counsel, it was the duty of the revisional authority before whom the question of insanity of the petitioner was alleged to hold an inquiry and to decide whether or not the petitioner was a person of unsound mind. It is also urged that the learned Settlement authorities did not decide the dispute inter se between the parties and have not given any decision as to who was entitled to the transfer of the property as a whole or whether it could be transferred to them after dividing it into two portions.

4. In reply, Rana Maqbul Ahmad Kadri, learned counsel for respondent No. 1, has stated that respondent No. 1 denies that petitioner Muhammad Ibrahim is a person of unsound mind but she was not denied that he has disappeared or is missing for the last several years. According to him, the petitioner off and on visits his home and this fact is supported by Mutation No. 193 of Village Mitranwali which took place on the 24th of January 1968, under which some land in the village was redeemed.

5. After hearing the learned counsel for the parties, I am satisfied that there is much force in the contention raised on behalf of the petitioner. From the very beginning, efforts were made on behalf of the petitioner through his son, Ainul Haq, for obtaining the transfer of the property in dispute. On 2nd of July 1959, he made a statement b; fore the Rehabilitation Officer that his father had disappeared and that he was entitled to the' transfer of the property in dispute. The CH Form was also filed through him. The appeal before the Additional Settlement Commissioner was also filed through Ainul Haq. Finally, when the matter came up before the Settlement Commissioner, a definite, plea was raised that petitioner Muhammad Ibrahim was a person of unsound mind and, therefore, all the steps taken‑ on his behalf through his son were valid according to Paragraph 5(a) of Settlement Scheme No. I.

6. It will be noticed that the learned Settlement Commis sioner did not hold any inquiry for finding out whether Muhammad Ibrahim was a person of unsound mind or not. Instead, he rejected this plea on the ground that he could not be allowed to change his position before the revisional authority. In my opinion, this approach to the question was faulty ands cannot be accepted as a sound one. In matters where minors or persons of unsound mind are concerned, it is the paramount duty of the Judicial or quasi‑judicial authority to protect their interests. If the learned Settlement Commissioner, had any doubt about the allegation that Muhammad Ibrahim was a person of unsound mind, he should have held an inquiry and given a judicial determination to the question raised before him.

7. It seems to me that the learned Settlement authorities have not applied their mind properly to the facts of the present case. In the first place, they should have gone into the question whether Muhammad Ibrahim was a person of unsound mind and they should have further considered the rights of the parties inter se, namely, between Muhammad Ibrahim and Mst. Muhammad Jan in respect of the property in dispute. None of the Settlement authorities have ;one into these questions. The mere fact that a P. T. O. had been issued in favour of Mst. Muhammad Jan earlier in point of time, could not disentitle C Muhammad Ibrahim of his claim. I would, therefore, set aside the impugned order and send back the case to the Deputy Settle ment Commissioner concerned to decide the following points :‑ (1) Whether Muhammad Ibrahim is a person of unsound mind, (2) Which of the two parties is entitled to the transfer of the house in dispute, and (3) Whether the house can be divided easily between them so as to satisfy their claims. The learned Deputy Settlement Commissioner is directed to decide the above points at an early date after notice to the parties and to transfer the property to the party or parties entitled to it.

8. In the result, subject to the above remarks, this petition is allowed, with no order as to costs. A. E. Petition allowed.