1975 PLP 401 (SCMR)

Respondents Nos. 2 to 101 Ex parte. Date of hearing : 27th and 28th March 1974. WAHEEDUDDIN AHMED, J.‑This appeal by special leave is directed against the order of the Lahore High Court in L. P. A. No. 106 of 1970, slated the 25th June 1970. 139 this order, the appeal ;vas dismissed in limine. The dispute between the parties is in respect of Bungalow No: S‑60 R‑78, Mozang Road, Lahore, It was transferred in the earmarking proceedings to Bashir Ahmad respondent No.1 and his brother Ch. Niamat Ali. The deferred value of the claim of tae two transferees could cover only 11/57 stare in the property.. In order to makeup the payment of balance of transfer price they associate with themselves, the appellant and respondents Nos. 3 to 6 by association deed dated the 16th January, 1960. A Provisional Transfer Order No. 049295 dated the 11th February 1960, was issued in favour of the two brothel s and. five ethers. Respondents Nos. 3 to 6, transferred their rights it: the house to the appellant by means of a deed dated the 25th July 1960. Respondents No.1 Bashir Ahmad also surrendered his 11/57 share in favour of the appellant by an association deed dated the 3rd August 1960. Ch Niamat Ali brother of Bashir Ahmad also surrendered leis right in favour of the appellant by means of another association dead which was approved by the Settlement Department on the 8th August 1960. As a result of these and some other deeds of association, the appellant became the sole transferee of the property in dispute and a revised P. T. O. No. 622014 dated the 20th August 1960. was issued in her name. It is alleged that there was also a deed of association dated the 9th September 1961. This was not filed in the Settlement Department. The Settlement authorities issued a P. T. D fn the name of appellant ‑by acting tan the deed dated the 3rd August 1960, on the 6th January 1965. Bashir Ahmad respondent No. 1 felt aggrieved with the order of the ‑Settlement authorities transferring the property in dispute permanently to the appellant and filed an appeal before the Additional Settlement Commissioner which was dismissed on the 29th June 1!965, on two grounds. Firstly, that it was barred by time and secondly, because the property in dispute has been transferred and the P. T. D. has also been issued in favour of the appellant. Respondent No. 1 Bashir Ahmad challenged this order in revision before the Additional District Judge, Lahore, as Settlement Commissioner. The revision was also dismissed on the 6th October 1965, on the ground that the Permanent Transfer Deed In favour of the appellant was not liable to cancellation in view of the Permanent Transfer (Houses & Shops) Rules, 1961. Respondent No. t challenged this order in Writ Petition No. 1448/R of 1965. A learned Single Judge of the Lahore High Court, after hearing the parties held that the mere fact that the Permanent Transfer Deed had been issued in favour of the appellant was not a bar to the hearing and disposal of the appeals and revisions which were filed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, against the original order of transfer and upon which tae Permanent Transfer Deed was based. The learned Single Judge relied in this connection on a decision of a Single Judge of the Lahore High Court in Syed Ahmad Abbas Zaldi v. Settlement Commissioner, Rawalpindi and others (P L D 1968 Lah. 166). The learned Single Judge for this reason remanded the case to the Settlement Commissioner for a fresh decision on merits. He also directed the Settlement Commissioner to decide the objection of the appellant on the question of limitation in respect of the appeal filed by respondent No. 1 before the Additional Settlement Commissioner. The appellant challenged this order L. P. A. No. 106 of

070. A Division Bench of the Lahore High Court, by judgment dated the 25th June 1970, dismissed the appeal in limine. They directed the Settlement Commissioner to decide the matter according to his own judgment and not because there is a direction by the High Court to do so. The appellant being aggrieved by this order, filed a petition for special leave to appeal in this Court arid leave was granted to him to consider his contention that the High Court could itself decide the question of limitation on the material already on the record. Malik Muhammad Aslam Khan, learned counsel for the appellant, has contended that no application was filed for condonation of delay and, therefore, the High Court should have upheld the decision of the Additional Settlement Commissioner that the appeal filed before him was barred by limitation. On the other hand, Mr. Abid‑ Hassan Minto, learned counsel for the respondent contended that from the order of the Additional Settlement Commissioner, it is clear that oral request was made for condonation of delay. According to him, respondent No. 1 is an illiterate person and was deceived by his brother Ahmad Bukhsh who was as his attorney before the Settlement authorities and he has fraudulently managed to get the transfer of the property in dispute in favour of his own daughter‑in‑law without giving any share to respondent No.1 or by compensating hire in any other way. Two points emerged from the arguments of the learned counsel for the parties. Firstly; whether the appeal before tile Additional Settlement Commissioner was barred by time and secondly, whether the permanent Transfer Deed could be set aside by the Settlement authorities on the ground of fraud and dishonesty. So far as the first question is concerned, it will by seen that the P.T.O. was issued on the 10th August 1969. Respondent No.1 filed an appeal on the 11th June 1965 in the Court of Additional Settlement Commissioner. He alleged in the appeal that the association deed dated the 3rd August 1960, was procured from him by fraud and misrepresenta tion. According to respondent No.1, he came to know of the fraud committed by the appellant on tine 17th April 1961. In paragraph 5 of the grounds of appeal filed by respondent ado. 1, he stated as under: "And later by concealing the above stated fact managed to get another deed of association, dated 3rd August 1960, executed from the petitioner in favour of respondent No. 1 of 11/57 share in the property in dispute and paid Rs.11,833 in cash in consideration of the deferred amount of the same amount available in the Compensation Book of the appellant, under Schedule 1, which compensation Book was deposited by the respondent No. 2 at the time of filing Form 'E' wit the Settlement Department, by misrepresenting 'and practising fraud on the appellant by telling the appellant that he wants to use the Compensation Book against the property transferred to him and being a brother, he wanted to pay to the appellant in cash against the deferred amount of Compensation Book utilised by him, as a result the appellant accepted this money immediately after, the appellant came to know of the fraud, he filed a complaint under section No. (illegible) with `Illaqa' Magistrate, a copy of which is (Annex. A/3) consequently a compromise was made after the elders of the village intervened and arbitrated in the matter." The complaint referred to in the above paragraph was filed by Ch. Ahmad Bakhsh and it is at page 7 of the Part It Paper Book. The complaint was filed on the 17th April 1961. It is thus quite clear that the appeal tiled by respondent No.1 before the Additional Settlement. Commis sioner was barred by 4 years and as respondent No. 1 has not made out any ground to condone the delay, the Additional Settlement Commissioner was perfectly right in rejecting the appeal on the ground that it was barred by limitation. In our opinion, on the face of these clear facts on the record, it was incumbent on the High Court to determine the question of limitation itself instead of remanding the case for this purpose to the Settlement Commissioner. ' After hearing the arguments of the learned counsel for the parties, we are satisfied that the appeal tiled by respondent No. 1 was barred by limita tion and it was rightly rejected by the Additional Settlement Commissioner. Coming to the next question whether the Settlement authorities could set aside P. 'I'. D. on the ground of fraud and misrepresentation. It will be noticed that the case of respondent No. 1 is that a compromise was entered into between the parties on the 5th August 1961. According to respondent No.1. there was a further agreement between the parties dated the 9th September 1961, by which respondent No.1 and Ch. Niamat Ali were associated with the appellant and the share of these persons was determined to the extent of Rs.22,

416. Mr. Abid Hassan Minto learned counsel, for respondent No.1 contended that in this way a fraud; was committed by the appellant in not bringing these lasts to the notice of the Settlement authorities and in obtaining a P. T. D. in disregard of these agreements. It was further contended by the learned counsel for respondent No. 1. that fraud vitiates all transactions and, therefore, the Settlement authorities were competent to cancel the P. T. D. on ground of fraud and misrepresentation. The contention of the learned counsel is against the law laid down by this Court on this point. The question whether the Settlement authorities could set aside the P. T. D. on the ground of fraud and misrepresentation was recently considered by this Court in Civil Appeal No. 109 of 1969 (Haji Faizul Hague Khan v. Syed Abdul Humid and another). It was observed in that case as under:‑

"We are also unable to agree with the view of the Settlement Commis sioner and the High Court that even after a P. T. D. has been issued, the Settlement Authorities can deal with the property. Under the P. T. D. Rules, a P.T'. D. could under rule 7 only be cancelled on the ground that it had been obtained by fraud or misrepresentation or in contravention of any of the provisions of the Act but after rule 7 was deleted by a notification issued on the 27th of December 1964, even this power disappeared, as held by ibis Court in the cases of S. Anwar Hussain Sara v. Sarj'raz Ahmed P L D 11971 S C: 669 and Aminuddin v. Settlement Commissioner 1973 S C M R 624." In this view of the matter, the Settlement Commissioner was perfectly justified in holding that he had no power to cancel the P. T. D. on the ground of fraud and misrepresentation. In the circumstances of the present case, the proper remedy for respondent No. 1 is to challenge the P'. T. D. on the ground of fraud and misrepresentation before the Civil Court, if so advised. In the result, the appeal is accepted with no order as to costs. Appeal accepted