1983 PLP 2348 (CLC)

(3) Nazir Muhammad. (4) Abdul Karim, and (5) Maseeta.

3. No appeal or revision was filed against the above order and con sequently a P. T. O., dated 7th‑ November, 1960 was issued, in the name of the five persons mentioned above. It appears that the names of Karam Elahi and Wali Muhammad who were additional applicants in the same C. H: forms were omitted. The Deputy Settlement Commissioner, there fore, vide his order dated 18th August, 1962 amended the P. T. O., to add their names as transferees.

4. Nazar Muhammad and Mst. Bashiran, two of the other occupants filed W. P. No. 933/R of 1964. They also alleged that their names were unlawfully omitted from the list of transferees. That petition was allowed vide order dated 9th June, 1975 and their names were also ordered to be included. The following portion of the judgment may be reproduced with advantage, as it also concerns the case in hand : It is, therefore, clear from the order that the Deputy Settlement Commissioner only included the names of Wali Muhammad etc. and did not purport to oust the names of Nazir Muhammad (Form C. H. No. 3049), Abdul Karim (Form C. H. No. 3045) and Masita (Form C. H. No. 5259). Further, the Deputy Settlement Commissioner only supplemented the order of the Assistant Settle ment Commissioner but never set the same aside. The final posi tion after the order of the Deputy Settlement Commissioner was that the house in question stood transferred to all the other applicants including those who submitted the form C. H. No. 4654 referred to therein .

5. The Deputy Settlement Commissioner then implemented the order of this Court on 5th of September 1975. He included the names of Nazar Muhammad and Mst. Bashiran and also divided the property into two por tions between the transferees, Karam Elahi, Wali Muhammad and Ghulam Nabi felt aggrieved against the above order of the Deputy Settlement Com missioner and filed W. P. No. 1097/R of 1975. It was averred therein that the Deputy Settlement‑ Commissioner, unlawfully assumed jurisdiction to include the names of Nazar Muhammad and Mst. Bashiran with the name of Nazir Muhammad and deliberately ignored the fact that no relief had been claimed against Karam Elahee etc. who were arrayed as pro forma respondents only. They further stated that the transfer in their favour had been confirmed. Their prayer, therefore, was that the order dated 5th of September, 1975 be declared to be without lawful authority.

6. That petition was, however, dismissed on 23rd January, 1980 holding that the Deputy Settlement Commissioner had rightly transferred half portion to each of the parties to avoid any litigation between them. The petition of Karam Elahi etc. before the Supreme Court against the order dated 23rd of January, 1980 was dismissed on 22nd June, 1980. It is in the meanwhile that the petitioners approached the Deputy Settlement Commissioner to include their names and the same was refused vide his impugned order.

7. The learned counsel for the petitioners has taken me through the entire litigation, as referred to above, to show the house in question had been transferred to Ghulam Nabi, Asso, Nazir Muhammad, Abdul Karim, Maseeta, Karam Elahi, Wali Muhammad, Nazar Muhammad, and Mst. Bashiran by various orders. In this view of the matter, it is stated that the exclusion of the name of Abdul Karim without any valid order by any competent authority, amounts to acting without lawful authority and the same must be quashed.

8. The learned counsel for the respondents has relied mainly on the order dated 5th of September, 1975 passed by the Deputy Settlement Com missioner to state as the name of Abdul Karim did not figure therein any where, the petitioners might be considered either to have waived their right or acquiesced in exclusion of their names. He has gone through the above order of the Deputy Settlement Commissioner but is not in a position to show that either the petitioners abandoned, surrendered or waived the right or they had been excluded after hearing them.

9. The Deputy Settlement Commissioner, as is clear from his order at page 73 of the paper‑book, rejected the request of the petitioner on the ground that according to the record they left possession of the property The learned counsel for the respondent is not in a position to refer to any record to support this observation though even if it was there it will have no legal value. The abandonment of possession after the order of transfer attracts no adverse consequences. The reference by the Deputy Settlement Commissioner to the order dated 18th August, 1962 is also of no use as by that order the then Deputy Settlement Commissioner only added the names of Wali Muhammad and Karam Elahi. This is quite clear from Annexure `E' the P. T. O., on record. There was thus no question of challenging the same.

10. In this view of the matter, it cannot be said that the Deputy Settlement Commissioner acted lawfully in refusing to include the peti tioner's names in the list of transferees. In fact the name of Abdul Karim, their predecessor‑in‑interest has throughout been there as referred to the judgment dated 9th of June, 197, noted in para. 4 above. They have never been excluded thereafter by any .competent authority. Thus reliance by the Deputy Settlement Commissioner on the order dated 18th August, 1962 is misplaced. The name of Abdul Karim and of his heirs after his death shall be deemed to be there all the time and con sequently any exclusion on the part of any authority without any valid reason must be set aside.

11. The Writ Petition No. 164/R‑81 filed by Mst. Bashiran amounts to getting the same relief as in the main case. She is one of the daughters of Abdul Karim. She is, therefore, not advancing any of her own personal right and must rely on that of Abdul Karim which has already been discussed above. This petition, therefore, is in fact a part of the same case. In view of the above, the impugned order dated 18th June, 1980 passed by the Deputy Settlement Commissioner is declared to be without lawful authority and of no legal effect. The result is that the name of Abdul Karim the predecessor‑in‑interest .of the petitioners shall be deemed B to be existing on the record all the time and all documentation and other proceedings would be taken, keeping the same in view. There will be no order as to costs. M. Y. H. Petition accepted.