1982 PLP 2518 (CLC)

‑‑Art. 199 read with Displaced Persons (Compensation and Rehabilitation) Act (XXV1II of 1958)‑Writ‑Petitioners not coming to Court with clean hands‑ Laches‑Delay of 14 months in filing writ petition remaining unexplained‑Held, petition seriously suffers from laches.‑[Laches]. Mrs. Sallma Nasiruddin for petitioner. Nemo for Respondents Nos. 1 to

3. Hassan A. Sheikh for Respondent No.

4. Dates of hearing : 2nd and 4th November, 1981. This petition is directed against the order dated 6‑8‑1977 passed by the Settlement Commissioner Sind, whereby he did not cancel ‑the transfer of house No. 11‑A/152, situated at Sbahpur Chakar, District Sanghar, in favour of respondent No. 4 and ordered that the price be paid by him in cash.

2. The facts leading up to the present petition briefly stated are that, the above‑mentioned house was disposed of to favour of Muhammad Hamid Khan respondent No. 4 on 6‑12‑1959 by the department, under earmarking proceedings being a successful candidate. The petitioner No. 2 Sher Muhammad Khan challenged the transfer in favour of ,:respondent No. 4 in appeal No..648/60 on the ground that it was a Dharamshala and therefore, a trust property and was not transferable. The appeal was dismissed by the Deputy Settlement Commissioner Nawabshah by his order dated 18‑1‑1961. The petitioner No. 2 challenged this order in revision before the Additional Settlement Commissioner and Rehabilitation Commissioner Hyderabad who remanded the case for finding out whether the house in dispute is a Dharamshala. The matter after investigation again went before the learned Additional Settlement and Rehabilitation Commissioner Hyderabad who on the basis of the inquiry conducted by his subordinat officers held that the house in dispute belonged to one Hindu Chancbalda and was not Dharamshala. The contention of the petitioner No. 2 to effect that he was in possession of the house in dispute and was entitled to its transfer was also rejected on the ground that his belated C.H. Form was accepted by the Additional Settlement Commissioner on the condition the pre‑emptor unless they form a part of the sale‑deed. However, in this case the question seems to be simple and the question of law need not be gone into. Vendor's only share in the property came to the area that has been sold, whereas the vendee is an independent owner of more than 20 Kanals of land in the whole Khewat. No specific survey number has been sold nor has the land sold been identified in any manner so as to show that any particular piece had been sold. All that is said in the sale‑deed is that the vendor transfers by sale, land measuring 4 kanals and 5 marlas from khewat No.

88. The total area of the khewat is 136 kanals and 4 marlas. As no improvements are mentioned in the sale‑deed, the presump tion is that only such land has been sold out of the whole Khewat which is not covered by improvements in question."

19. The defendant‑appellant, in para. I of the preliminary objections of the written statement, averred that he entered into possession of the suit land before the War of Liberation of 1947. He occupied the land on behalf of his wife, who inherited her share out of the share of her deceased father. The vendor alienated his fractional share out of the khewal. The share of the vendor was unspecified. Likewise, the alleged improvement, was not confined to a specific and particular part of the land. The improvement was claimed to have been carried prior to the alienation. If that was so, it formed part of the price of the suit land. The learned Judges examined the case on merits and arrived at a right conclusion. On merits, we do not find that disposal of appeal, in any manner, has prejudi cially affected the result.

20. In our well considered view the irregular mode adopted by the/ High Court in entertaining the first appeal has not resulted in prejudicial the merits of the case. The matter was likely to be brought before the High Court for scrutiny in second appeal. Thus the High Curt ordinarily wasp supposed to arrive at the same conclusion. The appellant, who joined the proceedings in the High Court without any objection, in absence prejudice on merits, cannot seek reversion of the impugned judgment on the sole ground of mere irregularity. We feel satisfied with the ultimate result of the decision on merits. In view of the aforesaid observations the appeal being devoid of force is hereby dismissed with costs. S. Q. Appeal dismissed.