1976 PLP 40 (SCMR)

ANWARUL HAQ,‑J ‑The dispute in this case concerns certain portions of property No. V‑VIII‑8‑S‑31 situate in Bazar Ichhra Singh of Gujranwala town. It has been described as a composite property consisting of two shops, one garage, and a small Tavela (i e. a stable) on the ground floor and a residential unit on the first floor. The occupants of the two shops, namely, Dr. Moosa Khan and Muhammad Hussain filed N C S forms for their transfer, whereas the occupant of the garage namely, Muhammad Yousaf (predecessor‑ire‑interest of appellants Nos. 1 to 4), filed a C S form for the transfer of the room in his possession. Jamal Din (appellant No. 5) filed a C H form for the transfer of the Tavela in his possession, The occupants of the residential unit on the first floor, namely, respondents Abdul Hamid and his wife Razia Khatoon, alongwith a lady named Ghulam Patina, filed a C H form fox the transfer of the entire house. It appears that although a report was made by a Settlement Inspectors on 26-1‑1960 regarding the extent of possession of the various applicants, excluding Jamal Din, (whose belated C H form was entertained later one the 30th of April 1960), yet no orders were made by the Deputy Settlement Commissioner for the disposal of these forms. Instead, subsidiary proceedings were commenced for the allocation of rent among the various occupants of the property. A report in this behalf was compiled by a survey inspector on 28‑7‑60, and in this report the names of M/s. Mohammad Yousaf and Jamal Lain are mentioned. The portion occupied by Mohammad `Yousaf was assessed at Rs. 10 p. m., whereas that occupied by Jamal Din was assessed at Rs. 2 P. M. This apportionment of rent was approved by the Deputy Settlement Commissioner on the same day. There is still a third report made by the Settlement Inspector on 5‑10‑60 commenting on the various applicants for the transfer of the property, and in this re0ort also the names of M/s. Mohammad Yousaf and Jamal Din are mentioned, but there is no indication on the record that any orders of transfer were made by the Deputy Settlement Commissioner on this report. Without the disposal‑of the various forms submitted by the occupants of the property, the shop or room occupied by Dr. Moose Khan was placed in the auction list, as the said occupant was found to be a local. It appears that Dr. Moosa Khaa accepted this decision, but it was challenged by the respondents Abdul. Hamid and Mst. Razia Khatoon as well as by their associate Ghulam Fatima. Their prayer was accepted by the Deputy Settlement Commissioner by his order dated the 23rd of January 1960 and the shop was deleted from the auction list. However, the same shop was again included in the auction list, with the result that Abdul Hamid etc. again applied for its deletion. The Deputy Settlement Commissioner rejected this time the application by his order dated the 29th of September 1960. Thereupon, Abdul Hamid appealed to the Additional Settlement Commissioner, but his appeal was dismissed on 24‑10‑1960. He then filed a revision petition, which was also dismissed by the Settlement Commissioner on 8‑6‑

61. Thereafter, Abdul Hamid moved a review application, which was accepted by a successor Settlement Commissioner by his order dated the 29th of May 1962. This officer observed that the dispute before him related to two rooms and a garage which were being used as shops, that the petitioners before him bad claimed that these rooms were integral part of the house, that he was satisfied that the claim was well‑founded, and, therefore, reviewing the order of his predecessor dated the 8th of June 1961, he would direct that the two rooms and the garage in question be regarded as integral part of the house and included in the transfer of that property to the petitioners before him, namely, Abdul Hamid, Mst. Razia Khatoon and Mst. Ghulam Fatima. It seems that this order was interpreted by the Deputy Settlement Commissioner as amounting to an order of transfer of the entire property in favour of Abdul Hamid, Mst. Razia Khatoon and Mst. Ghulam Fatima. Accordingly, he issued a provisional transfer order in their favour on 23‑7‑62, followed by a permanent transfer deed on 17‑12‑

62. We were informed at the Bar that the shop occupied by Dr. Moosa Khan was ultimately sold in open auction. As, however, there is no dispute about this particular room or shop, we have not inquired any further into the disposal thereof. There writ petitions were filed to challenge the order of the Settlement Commissioner dated the 29th of May 1962, as well as the issuance of transfer documents by the Deputy Settlement Commissioner in pursuance thereof :‑

(i) Writ Petition No. 177‑R of 1963 by Mohammad Hussain ; (ii) Writ Petition No. 1573‑R of 1963 by appellant No. 5, Jamal Din ; and (iii) Writ Petition No. 35‑R of 1965 by appellants Nos. 1 to 4 as successors‑ in‑interest of Mohammad Yousaf. Mohammad Hussain's writ petition No. 177‑R of 1963 was accepted by a learned Judge of the High Court by his order dated the 29th of March 1966 and all the orders of the Settlement authorities were declared to be without lawful authority and of no legal effect against Mohammad Hussain for the reason that he had not been heard at any stage. The Deputy Settlement Commissioner was directed to dispose of the N C S form of Mohammad Hussain in accordance with law after hearing all the parties likely to be affected. Jamal Din's Writ Petition No. 1573‑R of 1963 was dismissed to limine by another learned Judge by his order dated 13‑11‑1963, observing that he was not a party to the proceedings before the Settlement Commissioner, and, therefore, he could approach the relevant authorities for redress, if he felt aggrieved by this order. Writ petition of appellants Nos. 1 to 4 bearing No, 35‑R of 1965 was also dismissed in limine by the High Court on 6‑9‑1966 on the ground that it suffered from laches and delay having been filed four years after the passing of the final order by the Settlement authorities. Mohammad Hussain, Jamal Din as well as appellants Nos. 1 to 4 accepted the orders made in their respective writ petitions by the learned Single Judges of the High Court, but respondents Abdul Hamid etc. filed u Letters Patent appeal against the order made in Mohammad Hussain's Writ Petition No. 177‑R of 1963. This appeal was accepted by a Division Bench of the High Court by its order dated the 13th of December 1966, and the order made by the learned Single Judge was modified to the effect that at the time of the consideration of Mohammad Hussain's N C S form by the Settlement authorities, Jamal lain as well as appellants Nos. 1 to 4 shall have no right of being heard; as their writ petitions had been dismissed by the High Court. The present appeal is directed against this part of the order made by the Letters Patent Bench. It is contended that the application filed by the appellants for the transfer of their portions of the property have not been so far considered on merits by any Settlement authority, and the learned Single fudge was, therefore, right in directing, in Mohammad Hussain's Writ Petition No. 177‑R of 1963, that alt the affected parties should be heard. It is next contended that in any case, the learned Judges were in error in thinking that the dismissal of Jamal Din's Writ Petition No. 1573‑R of 1963, operated as a bar in the way of his being 1eard by the Settlement authorities, as the order made in his writ petition had specially directed that he could approach these authorities, if so advised. Before dealing with these contentions, it is necessary to state a few further facts regarding the proceedings taken after the disposal of the three writ petitions by the High Court.. In accordance with the observations made by the High Court in Writ Petition No. 1573‑R of 1963, appellant Jamal Din filed an appeal before, the Additional Settlement Commissioner which was, however, dismissed id default on 6‑7‑

64. An application for the restoration of this appeal was also dismissed in January 1965. There after, his revision petition was also dismissed by the Settlement Commissioner on 8‑6‑66 on the ground that it was barred by time. The net result of these proceedings was' that Jamal Din's C H form for the transfer of the portion of the property in his possession was still not considered on merits by any. competent authority. Mohammad Hussain's NCS form was considered by the Deputy Settlement Commissioner but rejected on merits, and it was stated at the Bar that his appeal was still pending before the Settlement Commissioner. Appellants Nos. 1 to 4 did not, or could not, take any further proceeding; as their writ petition had been dismissed by the High Court on the ground of laches and delay. On behalf of the contesting respondents, an objection was raised as to the maintainability of the appeal on account of the death of Mst. Razia Begum, and the failure of the appellants to implead her legal representatives within the time allowed by law for this purpose. This abjection is, however, merely in the nature of a technicality as Mst. Razia Begum's estate is adequately represented on the record by her husband Abdul Humid. We accordingly see no merit in this objection. From the detailed narration of facts given in the preceding paragraphs, it must have become abundantly clear that although no specific order was made by the Deputy Settlement Commissioner regarding the transfer of the garage in the possession of Mohammad Yousaf, the predecessor‑in‑interest of appellants Nos. 1 to 4, yet, a direction was given by the Settlement Commissioner in his order dated the 29th of May 1962 that the garage shall be treated as an integral part of the residential unit occupied by respondents Abdul Hamid and Razia Begum. In pursuance of this direction the garage was transferred to those respondents. The writ petition moved by appellants Nos. 1 to 4 was dismissed by the High Court on account of, laches and delay, and these appellants accepted that order. It appears to us, therefore, that the disposal of the garage has, in these circumstances, attained finality and could not, therefore be re‑opened in the remand proceedings directed to be taken for the disposal of the NCS form o Mohammad Hussain. The learned Judges of the Letters Patent Bench were, therefore, right in excluding appellants Nos. 1 to 4 from further consideration in the remand proceedings. The appeal, therefore, fails in so far as these appellants are concerned, and is hereby dismissed. The case of appellant Jamal Din, however, stands on a different footing. We have seen that the dispute before the learned Settlement Commissioner was only with regard to the two shops and the garage on the ground floor, and there was no reference what so ever to the portion of the property occupied by Jamal Din and known as the Tavela. There is no order on the record containing even an indirect reference to the CH form filed by Jamal Din. The Deputy Settlement Commissioner, the Additional Settlement Commissioner as well as the Settlement Commissioner were, therefore, in error in thinking that the portion occupied by Jamal Din as well as his CH form stood disposed of by the review order made by the Settlement Commissioner on 29‑5‑

62. As already stated, that order was confined only to the two shops and the garage. In these circumstances, the question of limitation on which basis Jamal Din's revision petition was finally dismissed by the Settlement Commissioner on 8‑6‑61, was completely irrelevant, as his CH form and the portion occupied .by him had all along remained undisposed of. The entire proceedings taken by the Settlement authorities were with regard to the remaining portions of the property. The learned Judges of the Letters Patent Beach were also misinformed in thinking that the dismissal of Jamal Din's Writ Petition bearing No. 1573‑R of 1963 had the effect of ruling him out of consideration on the contrary, the learned Judge' deciding that petition had clearly directed Jamal Din to approach ‑the Settlement authorities. For these reasons, we are of the view that the order made by the learned Judges of the Letters Patent Bench in Mohammad Hussain's Writ Petition No. 177‑R of 1963 is not sustainable in so far‑ Its it has the effect of excluding the disposal of Jamal Din's CH form on merits. We would accordingly set aside the same. As the litigation between the parties has been pending for a long time, and the portion in dispute is one which was never occupied by the contesting respondents, namely, Abdul Hamid and his wife Mst. Razia Khatoon, we consider that it is a fit case where we should direct that the portion of the property known by the name of Tavela, and in the possession of Jam&] Din, be transferred to him by the Deputy Settlement Commissioner on the basis of the CH form filed b this appellant. In order to place the position beyond controversy, we have marked this portion by letters 'A', `B', 'C', 'D' on the plan marked 'X' by us and placed on the record of this appeal. The appeal is accordingly accepted only in so far as Jamal Din is concer ned'. All the parties are left to bear their own costs. Appeal partly accepted.