1987 PLP 1664 (SCMR)

MUHAMMAD HALEEM, C. J.‑‑ This appeal, by leave, arises from the judgment of the Lahore High Court, Lahore, dated 5th of April, 1976, by which writ petition No. 79‑R of 1974, was allowed and the case was remanded to the Notified Officer for further inquiry in accordance with law. Leave was granted to consider firstly, whether the Settlement Commissioner had acted without jurisdiction in accepting a time‑barred appeal‑revision of respondent No.1 herein without having condoned the delay after the issuance of the Permanent Transfer Deed (PTD) in favour of the first appellant; and, secondly, whether the Settlement Authority exercising limited jurisdiction could decide a dispute for the specific enforcement of the alleged agreement of association in favour of respondent No.1. The facts which have given rise to this appeal are that property bearing No.S‑31‑R 147, McLeod Road, Lahore, was auctioned on 27th of June, 1971 and purchased by the second appellant for Rs.16,500/‑. The bid was confirmed on 28th of July, 1971. Thereafter the appellant No.1 entered into an agreement of association with the first appellant whereby he transferred all his rights in her favour which document was approved by the Deputy Settlement Commissioner on 31st January, 1973. However, as the full price had already been paid on 24th of January, 1973, a PTO was issued on 3rd of February, 1973, in favour of the first appellant who was in possession of the property at the relevant time. It transpires that the file relating to this property somehow got misplaced. Due advantage of this fact was taken by the first respondent who on 29th of May, 1973, after the issuance of the PTD, filed an appeal against the order of the Deputy Settlement Commissioner dated 31st of January, 1973, approving the second agreement of association on the ground that the second appellant had also entered into an agreement of association with her on 14th of September, 1971, and that without approving that agreement of association, which was first in point of time, the Deputy Settlement Commissioner could not have sanctioned the second agreement of association. In those proceedings, the appellant filed an affidavit in which he denied having executed any agreement of association in favour of the first respondent; nonetheless the Additional Settlement and Rehabilitation Commissioner, Lahore Division, Lahore, by order dated 7th of March, 1974, remanded the case to the Deputy Settlement Commissioner for fresh decision in accordance with law. The appellant challenged this order in the aforementioned writ petition which was disposed of as afore-stated. There is no tacit evidence in the absence of the original record to hold in favour of the execution of the first agreement of association by appellant No.2 who has himself denied this fact through an affidavit filed before the Additional Settlement Commissioner. It is also in vain to refer to the entries in the Receipt Register or other material to establish the filing of the document itself. If, at all, an agreement of association had been filed on 14th of September, 1971,we see no reason why respondent No. l should have waited from this date onwards till the acceptance of second agreement of association on 31st of January, 1973, to have it approved. In the absence of any declaration by the appellant No.2 as to the execution of the document and the stipulation therein contained that he had surrendered his rights in the property transferred to him in favour of the respondent before the Settlement Commissioner, in accordance with Settlement law, there is no jurisdiction in the Settlement Authority to adjudicate upon the question when the execution of the document itself is denied. The jurisdiction only arises if there is mutual agreement between the parties, that is, that there is a duly concluded contract enforceable at law. The entitlement cannot be established by secondary evidence in the context of the dispute as to the execution of the document. In this connection reference may be made to the case decided on 20‑10‑1986 by this Court (Civil Appeal No.551 of 1980, Sh. Abdul Haque vs. Dr. Safdar Bokhari and others). The controversy which presented itself for consideration before the Additional Settlement Commissioner was one of a civil nature which could only be properly adjudicated upon by a court of general jurisdiction if the specific enforcement of the agreement of association was sought to be claimed in the facts and circumstances of the case. Having held so, the remand was improper as no useful purpose could come out of it. On this view of the matter, the PTD having been issued at a time when there was no dispute as to the transfer of the property, it assumed finality and the Additional Settlement Commissioner possessed no jurisdiction to re‑open it. On the question as to the limitation not having been condoned, this Court has held in Hasan Ali and others v. District Judge and others, (P L D 1969 SC 167), that the mere disposal of appeal on merits is not sufficient to lead to the inference that the appellate authority had condoned the delay. There is to be an application of mind to the question of limitation and mere waiver is not permissible even where the period of limitation is prescribed by a special or to local law. Therefore, the exercise of appellate jurisdiction by the Additional Settlement Commissioner was without jurisdiction as the appeal was barred by limitation, which, on the face of it had not been condoned. As a result of the above discussion we are of the view that both the Additional Commissioner in remanding the case for fresh disposal and the High Court in upholding that order were in error. While setting aside the impugned order, we allow the appeal, but with not order as to costs. K.B.A./S‑50/S Appeal accepted.