1989SCMR 189 (PLP)

SHAFIUR RAHMAN, J.‑‑The petitioner who has been unsuccessful in obtaining for himself the transfer of property bearing C.S. No. H/531 and in resisting the correction of the transfer documents issued to respondents substituting C.S.H.No. 531 for property No. C.S.H. 531/2, seeks leave to appeal against the judgment of the Sind High Court dated 17‑5‑1987 whereby a Revision Petition filed by the respondent No. 1 was allowed restoring the judgment of the trial Court. The Petitioner claimed to be in possession of Property bearing No. C.S.H./531, Giddu, Hussainabad, Hyderabad. He filed a Form, under Settlement Scheme No. VIII for the transfer of this property as available under the Scheme. It was denied to him on the 27th of September, 1973 on the ground that it was not available for transfer having already been disposed of. Instead of challenging that order he again approached the Deputy Settlement Commissioner who again held, on 30‑1‑1974 that the property was not available and by that order directed that the transfer documents of the respondent be corrected, as they contained a clerical mistake about the Number of the Property transferred to the respondent. Against this order of the Deputy Settlement Commissioner appeal was taken to the Additional Settlement Commissioner who held as hereunder:‑‑ "Check up of the record and. perusal of the impugned order go to show clearly that premises bearing C.S.No. H/531, Hyderabad at present in possession of Muhammad Shahzad the petitioner is the same property as was purchased in open auction by the Respondent (Khairati) under a wrong number i.e. H/531/2, Hyderabad. Legally speaking, the Deputy Settlement Commissioner was however, not competent to allow correction or to interfere in any way with the P.T.D. in view of the rule referred to above and other various latest rulings from the Superior Courts. 11 was now for the Civil Courts to adjudicate upon such matters." A Civil Suit was then filed by the respondent. It was contested by the Petitioner and 12 (twelve) issues were framed. The Trial Court upheld the claim of the respondent holding as follows:‑‑ "In view of my findings on the above issue of facts I have come to the conclusion that the plaintiff is the absolute and exclusive owner of property in accordance with the P.T.D. which has been issued and duly corrected in favour of the plaintiff and thus the defendants are restrained by permanent injunction from transferring any portion of the property No. 531/H of which the plaintiff is the absolute owner. The suit is accordingly decreed with no order as to costs. But in view of findings on issue No. 3, the plaintiff shall have to pay the deficit court‑fee within one month of the passing of this order." On appal the Additional District Judge Hyderabad reversed this judgment by order date, 14‑1‑1981. Learned Judge in Revision restored the judgment of the trial Court holding that the First Appellate Court had acted in exercise of its jurisdiction with material irregularity as the record has been misread. Mr. Ghiasuddin Mirza, Advocate, the learned counsel for the Petitioner contended that after the issuance of the P.T.D. it was not open to the Settlement Authorities to make any correction whatever its nature. Reference to the Civil Court, according to the learned counsel was appropriate and in accord with law on the subject. However, with regard to the adjudication by Civil Court, the learned counsel contended that these were two different properties and the respondent could not on the basis of purchase of another property, lay a claim to the property in possession of the Petitioner. The question involved in the controversy between the parties is purely of fact, the question being whether there are two properties or one, and whether the property transferred to the respondent is the same which is being claimed by the Petitioner? It has been decided on the settlement side as well as in the Civil Courts against the Petitioner. The Settlement Authorities were within their competence to hold that the property of which the Petitioner was seeking transfer was not available property, that property having already been transferred to the respondent. That decision not having been challenged in the Settlement hierarchy at the relevant time, attained finality against the Petitioner and he cannot get out of it. If that adjudication is .held to be final, conclusive and binding on the Petitioner, the action of the Settlement Authorities in correcting the number of property can only be a case of ratifying or a clerical mistake which was within their competence notwithstanding that the P.T.D. had issued. Clerical mistakes which do not go to the merits of the case and do not substantially affect the rights of the parties can always be made. The decisions given are substantial, in accord with law and no question of law requires further examination. Hence leave to appeal is refused. M.Y.H./M‑618/S Leave refused.