1994 PLP 1225 (SCMR)

WALI MUHAMMAD KHAN, J.‑‑‑The instant appeal through leave of the Court, is directed against the judgment of the Lahore High Court dated 10‑11‑1986, whereby the Writ Petition filed by Malik Sanaufah and others, successors‑in‑interest of Malik Hidayatullah, was dismissed in limine. Leave granting order is to the following effect:‑ "On behalf of the petitioners it is submitted that the learned Judge of the High Court did not advert to the various orders passed by the different Officers of the Settlement Department, as referred to above, and that actually a portion of the verandah attached with the quarter of the petitioners has been taken away by Mst. Bilqis Akhtar, respondent No.3, under the garb that there was a room. The submission raised by the learned counsel for the petitioners requires examination. We, therefore, grant leave."

2. The background of the dispute between the parties is that Property No.221 situated in Mohallah Qazi, Lahore Cantt., is a big masion comprising of rooms/quarters. Hassan Din father of Mst. Bilqis Akhtar, respondent herein, was. admittedly in possession of a portion thereof and on his failure to file the relevant form, the portion in his possession was put to auction and was purchased by Malik Hidayatullah predecessor‑in‑interest of Malik Sanullah and other appellants herein, which was confirmed in his name and the appeal/revision filed against it were dismissed. Subsequently, a dispute arose between the transferee, Hasan Din and one Sardar Muhammad about the location of the property transferred in favour of Malik Hidayatullah and on the application of Malik 'Hidayatullah the Settlement Officers carried out demarcation in the presence of predcessors‑in‑interest of the parties and declared that one room and two verandahs on either side thereof is the property which was in possession of Hassan Din and was transferred to Malik Hidayatullah in open auction and the room in possession of Sardar Muhammad was declared to be a portion of the transferred property having been given to him by Hassan Din for tethering his cattle. In the said proceedings Hassan Din; father of Mst. Bilqis Akhtar respondent, was produced as a witness by Malik Hidayatullah who deposed on solemn affirmation that the area in his possession consisted of one room and two verandahs, that he had temporarily let Sardar Muhammad to occupy room in his possession for his cattle and that the said room was also included in the area in his possession before the transfer thereof to Hidayatullah in open ‑auction. In his statement, he nowhere stated that his daughter Mst. Bilqis Akhtar is in possession of any portion thereof independently in her own right. The site plan of the area allotted to Malik Hidayatullah is available on page No.1 of the paper book. It is also evident from the statement of Hassan Din that he is in possession of a part of the said property but as a tenant of Malik Hidayatullah. Later on Mst. Bilqis. Akhtar respondent claiming to be in possession of one room in the said Ahata in her own right applied to the Deputy Administrator (R.P.) for the transfer thereof, who vide his order dated 7‑9‑1982, came to the conclusion that the room in possession of Mst. Bilqis Akhtar was not part, and parcel of the property auctioned in the name of Malik Hidayatullah and ordered the transfer of the same to Mst. Bilqis Akhtar under R.P. Scheme. The appellants preferred revision petition against it to the Administrator (R.P.) which was dismissed vide order dated 16‑8‑1984 and the Writ Petition filed against it also failed vide the impugned order. Hence the instant appeal through leave of the Court.

3. We have heard Ch. Abdul Aziz, Advocate for the appellants, Sardar Muhammad Akram, Advocate for respondent No.3 and have perused the record of the case. Neither Mst. Bilqis Akhtar respondent nor the Authorities dealing with R.P. Scheme deny the transfer of‑a portion of Ahata No.221 to Malik Hidayatullah, predecessor‑in‑interest of the appellants. The only dispute between the parties is whether the room in the occupation of Mst. Bilqis Akhtar was part of the property‑‑‑put to auction previously and purchased by Malik Hidayatullah in the open auction or not. Mst. Bilqis Akhtar respondent has placed the site plan of the portion in dispute on her concise statement paper book at page No.28 and the perusal thereof show that the portion in her possession and being claimed by her in her individual right is contiguous to a room towards the South in the possession of Malik Hidayatullah. Obviously, this is one of the verandahs shown in the plan at page No.1 of the main paper book and which was admitted to be a part of the auctioned property by her own father Hassan Din in his statement in an earlier enquiry. Accordingly, we have no hesitation to hold that the same is part and parcel of the area already transferred to Malik Hidayatullah through open auction and was not part of the residual property available for allotment to the occupants. The learned Deputy Administrator (R.P.) and the Administrator (R.P.) have failed to consider this aspect of the case and their orders impugned before the High Court in Writ Petition were coram non judice and without lawful authority and the learned High Court ought to have declared them as such.

4. Consequently by accepting the instant appeal we set aside the impugned judgments of the High Court, Administrator (R.P.) and that of the Deputy Administrator (R.P.) and dismiss the claim of Mst. Bilqis Akhtar respondent No.3 for the allotment of the room in her possession. There is no order as to costs. AA./S‑820/S Appeal accepted.