1976 PLP 95 (SCMR)

ANWARUL HAQ, J.‑This petition seeks leave to appeal against the judgment of a learned Single Judge of the Lahore High Court, dated the 30th of October 1974 whereby a Constitution petition filed by the respondent Abdul Hamid Farooqi was accepted and an order passed by the learned Settlement Commissioner on the 5th of February 1974 directing the Deputy Settlement Commissioner to demarcate the property in dispute, was declared to be without lawful authority and of no legal effect. It is not necessary to narrate the detailed history the prolonged litigation which has gone on between the parties regarding the transfer and demarcation of the respective portions of the property occupied by them in ,this "composite building situate in Trunk Bazar, Rawalpindi. Suffice it to say that by an order made by the Additional Settlement Commissioner on the 20th of December 1960, the property was divided between the petitioner's predecessor‑in‑interest, Mst. Sbaukat Ara Begum, and the respondent Abdul Hamid Farooqi. The lower portion except Staircase leading to the upper storey and the covered passage and frontage of the passage, was transferred to the respondent Abdul Hamid Farooqi, and the rest of the property was allowed to remain with Mst, Shaukat Ara Begum. The Additional Settlement Commissioner also attached a plan with his order to delineate the respective portions transferred to the con tending parties. This order of transfer has held the field so far, in spite of a second round of litigation which ensued between the parties on the question of demarcation of the respective portions transferred to them. At one stage the petitioner filed a writ petition in the High Court which was dismissed on the 25th of October 1965, observing that she could have resort to the civil Court for getting her property demarcated. Both the parties, accordingly, filed civil suits which are still pending. However, during the pendency of these civil suits the present petitioner made an application before the Settlement Commissioner which was accepted by him by his order dated the 5th of February 1974, and the matter was remitted to the Deputy Settlement Commissioner for physical demarcation strictly in accordance with the order dated the 20th of December 1960. Aggrieved by this order, respondent Abdul Hamid Farooqi moved a Constitution petition in the Lahore High Court which, as already stated, has been accepted and the impugned order of the learned Settlement Commissioner has been declared to be without lawful authority mainly on the grounds that the order was highly improper in view of the observations made by the High Court while dismissing in limine the present petitioner's Writ Petition No. 1208‑R of 1965 to the effect that she could have resort to the civil Court for getting her property demarcated ;that the Settlement Commissioner had not original jurisdiction to directly entertain an applica tion for the demarcation of the property; and that the P. T. D. having been granted to the respondent: Abdul Hamid Farooqi as far back as the year 1962, this portion of the property bad gone out of the compensation pool and, therefore, the Settlement Commissioner had become functus officio and could not deal with this property any longer. In support of this proposition, the learned Judge in the High Court placed reliance on the decisions of this Court reported as Anwar Hussain v. Sarfraz Ahmad (P ,L D 1971 S C 669). Aminuddin v. Settlement Commissioner (1973 S C M R 624) and Syed Murid Hussain Shah v. Mufti Mohammad Yousaf Ali (1974 S C M R 8). Leave to appeal is sought on the grounds that it was the duty of the; Settlement Authorities to demarcate on the ground the respective portions of the property transferred to the contending parties; and that in any case the learned Judge in the High Court has overlooked the fact that no P. T. D. has so far been issued in respect of the portion transferred to the present petitioner as associate of the original transferee, Mst. Shaukat Ara Begum. It is submitted that in these circumstances, the decisions relied upon by the High Court Acre not applicable. We see no merit in these submissions. We have already stated that the final order of transfer, this case is the one made by the Additional Settlement Commissioner on the 20th of December, with which a plan demarcating the respective portions of the parties was also attached. Since then P. T. D. has admittedly been issued in favour of the respondent Abdull Hamid Farooqi in regard to the portion transferred to him. The dicta in the cases relied upon by the High Court would clearly apply to this portion, with the result that the Settlement authorities would have no jurisdiction! to interferes with the same, as it had gone out of the compensation pool. Further, we find that both the parties have invoked the jurisdiction of the civil Court by filing civil suits on this very cause of action. In these circumstances, the High Court was clearly right in holding that the S‑1ttlerrsant Commissioner should not have interfered in the matter and left the dispute between the parties to be finally resolved by the civil Court. For the foregoing reasons, ate justification is made out for our is interference in the matter. The petition, accordingly, fails and is hereby dismissed. Petition dismissed.