1984 PLP 1402 (SCMR)

Faizanul Haq, Advocate‑on‑Record for Respondent No.

1. Ex‑parte Respondent No.

2. Date of hearing: 10th January, 1984. ABDUL KADIR SHAIKH, J.‑‑ The dispute in this case concerns transfer of House No.C.S. 1250 in Rohri, District Sukkur. It was originally transferred to appellant on L. H form and P. T .O.; dated 4‑12‑1959 was issued to him. He applied for reduction of the evaluation price, but no order was passed on his application, and on 4‑3‑1968 his P.T.O. was cancelled and the property was resumed by the department on 6‑3‑1968. He filed an appeal against the orders passed against him which was rejected by the Additional Settlement Commissioner on 26‑4‑1971. His revision application to the Settlement Commissioner however succeeds on 7‑1‑1972. In the meanwhile, the house was put to auction on 30‑5‑1968 and transferred to respondent Sadik Ali Khan. Aggrieved by the revisional order of the Settlement Commissioner in appellant's favour, Sadik Ali Khan filed a writ petition in the former High Court of Sind and Baluchistan which was accepted by a learned Judge by his order, dated 20‑5‑1974 holding that "it is presumed that the resumption order had been served on the respondent (appellant). In any case, the respondent had the knowledge of the fact that the property was auctioned twice but he took no steps against the auction proceedings." The learned Judge further took the view that the P.T.D. could not be cancelled on the ground of any irregularity of procedure adopted at the auction sale. Leave to appeal from the judgment of the High Court was granted in order to consider the plea raised on behalf of the appellant that the High Court was in error in thinking that the Settlement Commissioner had no power to act in revision after P.T.D. had been issued to the auction purchaser, and also that the learned Judge in the High Court could not have interfered with the finding of fact recorded by the Settlement Commissioner to the effect that there was nothing to show that any notice was served on the appellant regarding his default in payment of transfer price of the house before ordering its resumption. After hearing the learned counsel for the parties in the light of the record before us there is no escape from the conclusion that this appeal must succeed, for, both the points on which leave to appeal? was granted are unassailable. Learned Settlement Commissioner had reached the finding of fact on the basis of departmental record that appellant was not served with any notice demanding payment of transfer? price from him and that "the transfer of the property in favour of the applicant (appellant) vide P.T.O. dated 4‑12‑1959 was not legally cancelled and therefore, the property in question was not legally available for auction on 15‑4‑1968 when it was purchased by the respondent." These findings of fact were set aside by learned Judge in the High Court on mere presumptions and surmises, in his own words saying that "the resumption order and that of cancellation of P.T.O. had actually Been issued. It is presumed that the order had been served on the respondent (appellant)." It is obvious that learned Judge fell in an error in interfering with the order of learned Settlement Commissioner passed in lawful exercise of the jurisdiction vested in him by law on mere presumption rather than facts found on record. Similarly on the facts of the case the view of the learned Judge in the High Court that Settlement Commissioner had no power of revision after P.T.D. was issued (to respondent) is not in consonance with the rule laid down by this Court in Muhammad Ismail v. Settlement Commissioner and another 1973 S C 1 R

407. Learned counsel for the respondent half‑heartedly argued that the appeal filed by the appellant against the order of resumption of the property to the Additional Settlement Commissioner was barred by time. This plea is of no avail to him, for, the delay in the filing of the appeal was specifically condoned by the learned Additional Settlement Commissioner by the order, dated 24‑6‑1968. For these reasons the appeal is allowed with the result that the impugned judgment of the High Court is set aside and that of the Settlement Commissioner, dated 7‑1‑1972 in Revision Application No.SCHK‑9 of 1971 between the parties is upheld. In the circumstances, the parties are left to bear their own costs. S.Q,???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.