1983 PLP 438 (CLC)

The dispute between the parties, who are inter se real brothers, relates to the transfer of a house bearing No. P/196 Mandar Block, Pit Mahal, Tehsil Toba Tek Singh, District Faisalabad. Admittedly, respon dent No. 1 and one Noor Muhammad were in possession of the house. Both of them applied for its transfer, but Noor Muhammad being a non claimant and respondent No. l a claimant former's NCH Form was reject ed by the Deputy Settlement Commissioner on 3rd December, 1959. His appeal was also dismissed by the Addl. Settlement Commissioner, by his order dated 15th November, 1960.

2. The parties are not at variance, on the point that the petitioners were never in possession of the house and they also did not apply for it. The Deputy Settlement Commissioner, however, in his order dated 3rd December, 1959 along with the name of respondent No. 1, added the names of the petitioners as well, showing them as joint transferees of the house. A PTO dated 11th March, 1960 was also issued in the names of all the brothers jointly which was followed by a PTD dated 15th March, 1964.

3. According to the facts available on record on 20th December 1972 the petitioners filed a suit against respondent No. 1 for partition of the house. The latter moved the Chief Settlement Commissioner through an application dated 12th January, 1973 challenging the inclusion of the names of the petitioners in the transfer order and connected documents. This application was turned down on the executive side by means of order dated 24th May, 1973 (Annexure `G') and the respondents advised to seek judicial remedy before an appropriate forum. It was thereafter, that he filed a revision petition, which in the first instance was allowed ex parte on 12th December, 1973 but on the petitioners request this order was recalled by the Settlement Commissioner and after hearing the parties a fresh order dated 9th January, 1974 passed by him whereby the house was transferred to respondent No. 1 to the exclusion of the petitioners and their names deleted from transfer documents. The validity of this order has been called in question by the petitioners through judicial review.

4. Before the Settlement Commissioner, the case of respondent No. 1 was that he is an old man with an impaired eye‑sight. To represent him before the Settlement authorities for getting the house transferred in his name he appointed his brother Muhammad Habib, petitioner No. 1 as his attorney. The latter in collusion with an Assistant Settlement Commissioner who at the relevant time enjoyed the powers of Deputy Settlement Commissioner played a fraud on the respondent and got the house transferred to all the brothers jointly. He asserted that he came to know of the fraud when he received summons from the civil Court in the partition suit. These contentions weighed with the learned Settlement Commissioner in accenting the respondent's revision petition.

5. I have heard the learned counsel for the parties and examined the available record. It has been argued on behalf of the petitioners that the transfer price of the house was paid from a joint compensation book of the parties and transfer documents issued in their names with the con sent of the respondent who was fully aware of all these facts. It was vehemently argued that the revision petition was filed after a lapse of 131 years and thus was barred by laches and that it was brought by him merely as a counterblast to the Civil suit of the petitioners ; the Settle ment Commissioner acted illegally in accepting such a revision and setting aside the PTD, particularly when rule 7 of the P T D Rules had been deleted to give finality to the transfer orders. In support of his sub. missions the learned counsel heavily relied on Abdul Majid Shaida v. Noor Jahan (P L D 1967 S C 221).

6. It cannot be disputed that for the validity of the transfer order either the petitioners should have filed the requisite form or associated with respondent No. 1 through a deed but both these essential requirements are missing in this case. The petitioners' case wholly hinges on an alleged oral agreement, which is not countenanced by law.' The transfer order was totally illegal and without lawful authority. The title document based on such order suffers from the same infirmity. Before proceeding further, it would be worthwhile to quote hereunder the reason which in no small measure influenced the decision of the Settlement Com missioner : "He (Muhammad Hanif) is also a special attorney of the petitioner and managed to get the PTD of the house issued in the names of the parties as equal partners by misrepresentation of the facts. It has been held in Maji Fazal‑e‑Haq Khan v. Syed Abdul Majid and others (1976 S C M R 429) that a PTD obtained by fraud, misrepresentation or in contraven tion of the Act can be cancelled and deletion of Rule 7 is not a bar to that. The Settlement Commissioner has given a finding of fact that the PTD was got issued by petitioner No. 1 in the name of all the brothers by misrepresentation of facts.

7. I have examined the precedent cited by the learned counsel for the petitioners. In that case, the respondents had reconciled with the transfer of the property to the appellants before the Supreme Court, and commenced cause before the Settlement authorities only when the latter initiated ejectment proceedings against him. The revision petition having been filed with the delay of 14 months, the Settlement Commissioner refused to intervene. The High Court, however, set aside the order of the Settlement authorities but this interference was not proved by the Supreme Court. As there was no allegation of fraud the precedent has no bearing on the instant case

8. There is no gainsaying that fraud vitiates even most solemn proceedings. In the instant case as observed above there is finding of fact that the title document relied upon by the petitioners are the result of fraud and misrepresentation. It is, however, argued on behalf of the petitioners that Muhammad Habib never acted as an attorney for respon dent No. 1 and that the findings of the Settlement Commissioner as to the misrepresentation, are not based on any material.

9. It is not possible to accept this argument. When the impugned order was passed by the learned Settlement Commissioner, the entire re cord was before him. This record has not been requisitioned by the petitioners to show that the findings of the Settlement Commissioner are not supported by the Settlement file. In these circumstances no serious consideration can be given to the petitioners' submission that the impugn ed order does not vest on any material.

10. The transfer order suffers from patent illegality, and is sought to be sustained on basis of technicalities. This Court would be loath to perpetuate an illegal order in exercise of its constitutional. jurisdiction, which is discretionary. In the circumstances of the case nothing turns out on adjustment of the transfer price against the joint Compensation book.

11. For all these reasons I do not find any merit in this writ petition. Accordingly it is dismissed but with no order as to costs. M. Y. M. Petitions dismissed.