1977 PLP 227 (SCMR)

MUHAMMAD AKRAM, J.‑This is an appeal by special leave from the judgment dated 20‑6‑1969 passed by a Division Bench of the then High Court of West Pakistan at Lahore under clause (10) of the Letters Patent. The dispute in this case relates to property No. SI‑109‑S‑2, Puran Bhagat Street, Katcha Nisbet Road, Lahore. It was occupied by a number of families including Mian Mohammad Din, predecessor of the appellants and Mehr Din, husband of Mst. Sardar Begum respondent. On the 15th of December, 1959, Abdul Ghafoor, Assistant Settlement Commissioner transfer red the entire house to Mst. Iqbal Begum widow of Mian Mohammad Din on her C. H. form. She afterwards surrendered by associating in favour of her own sons and daughters who are the appellants before us. It was the case of Mst. Sardar Begum respondent that she had also filed an N. C. H. form No. LHR. I1I‑1381 dated 8th August, 1959, which was entered in the CSC‑II Register, for the transfer of House No.

8. Street No. 109, Katcha Nisbet Road, Lahore to her. She filed a belated appeal against the order dated 15‑12‑1959 transferring the property in dispute to Mst. Iqbal Begum deceased on the ground that she had also applied for this very property which was disposed of without any notice to her. But on the 18th of August, 1961, her appeal was dismissed by the Additional Settlement and Rehabilitation Commissioner (Judicial), Lahore Division, Lahore, as time‑barred and also on the ground that she had failed to clear the arrears of rent due from her. Her revision against the order was also rejected by the Settlement and Rehabilitation Commissioner, Lahore, on the ground or limitation. The respondent then filed a Writ Petition under Article 98 of the 1962 Constitution against the transfer of the property in dispute to Mst. Iqbal Begum. But a learned Judge of the West Pakistan High Court at Lahore dismissed it for limine. He was of the opinion that according to the relevant entries in the C S C‑II Register the respondent had applied for a different house and, therefore, she was not entitled to any notice before the transfer of the house in dispute to Mst. Iqbal Begum. The respondent then filed a belated appeal from the judgment under Clause 10 of the Letters Patent of the High Court. On the 20th of June, 1969 a Division Bench of the West Pakistan High Court at Lahore, condoned the delay in her appeal and held that under paragraph 8 of the Settlement Scheme No. I she was entitled to he heard before the disposal of the property in dispute by the Assistant Settlement Commissioner to Mst. Iqbal Begum deceased. On this finding the Court in accepting the appeal remitted the case of the transfer of the property to the Settlement Commissioner for a fresh decision between the parties. In these circumstances the appellants filed a petition for special leave to appeal from the judgment of the Division Bench of the High Court. On the 1st of October, 1.969 this Court granted the requisite leave to appeal on the contention raised to the effect that the appeal of the respondent before the Additional Settlement Commissioner, and her revision before the Settlement Commissioner were barred by time and, therefore, she should not have been heard on the merits. In this connection reliance was placed on the pronouncement by this Court in Mumtaz Khan v. The Settlement and Rehabilitation Commissioner and another (P L D 1966 S C 276). In this case, according to the report received from the settlement authorities and the entries in the C S C‑II Register the respondent had filed her N. C. H. form No. L H R‑III‑‑1381 dated 8‑8‑1959 for the transfer of House No. 8, Street No. 109, Kacha Nisbet Road, Lahore, in her possession to her. But according to the survey register no such property bearing House No. S, Street No. 109, Kacha Nisbet Road, Lahore, at all existed. The Assistant Settlement Commissioner transferred the house in dispute to Mst. Iqbal Begum in the absence of the respondent, without any notice to her and without having even considered her form. In appeal the Additional Settle ment Commissioner proceeded on the basis that she had also applied for the house in dispute. He, however, held that she was not entitled to the transfer of the house as a non‑claimant who had not paid the arrears of rent since 1953 and also because her appeal was time‑barred. Under para. 8 of the Settlement Scheme No. 1 the Assistant Settlement Commissioner was bound to have served a notice to all those who may have applied for the transfer. In this connection, it may be mentioned that, in the reported case of Fateh Mohammad v. Maula Bakhsh (P L D 1963 S C 311) the Supreme Court observed that an ex parte order passed by the Deputy Settlement Commissioner transferring the property in favour of the appellant therein could not be regarded as final order qua the respondents application for transfer which was not even considered. In Mohammad Ashraf and others v. Mohammad Usman and others (1973 S C M R 403) the Supreme Court observed that the N. C. H. form filed by Chhotey Khan, the predecessor‑in‑interest of the respondents therein, was not disposed of by the competent authority, and that the entire house was transferred to Zahoor Ahmad, predecessor- in‑interest of the petitioners before it, without holding an enquiry as required by Settlement Scheme No. 1 and without affording to Chhotey Khan and the other occupants of the building an opportunity of being heard. In these circumstances this Court armed with the High Court in holding that the N. C. H. form submitted by Chhotey Khan was not disposed of according to law, the transfer order in favour of Zahoor Ahmad was quashed and the case was remanded to the Settlement authorities. In Mumtaz Khan v. The Chief Settlement and Rehabilitation Commissioner and another the appellant therein had gone up in appeal from the order of the Deputy Settlement Commissioner which awarded the house to the contesting respondent. But his appeal was dismissed by the Additional Settlement Commissioner as barred by time and refused to condone the delay. In that connection this Court observed that his order was unexceptionable and refused to go into the merits of the order passed by the Settlement authorities, challenged in writ jurisdiction. But the facts in that cage are distinguishable inasmuch there was nothing to show that the form submitted by any of the interested parties was not disposed of by the Deputy Settlement Commissioner after hearing. In the instant case, as held by the learned Letters Patent Bench that the respondent had applied for the transfer and was entitled to be heard before the disposal of the property by the Deputy Settlement Commissioner. In these circumstances, in the opinion of the High Court, her entitlement could not be negatived simply on the ground of limitation. Indeed no question of limitation, even arose as in this case initial order of transfer was passed by the Deputy Settlement Commissioner' without any notice to the respondent. On this view of the matter, according to the High, Court, the Additional Settlement Commissioner erred in rejecting the appeal of the respondent as tune‑barred. Indeed there is nothing on this record to show that the respondent had filed her appeal after the period of limitation for the appeal had expired from the date of the knowledge of the ex parte order passed by the Deputy Settlement Commis sioner in her absence without any notice. At no stage the N. C. H. form filed by the respondent was at all considered. In these circumstances the Letters Patent Bench quashed the transfer order and deemed it fit to remand the case to the Settlement authorities for a fresh decision between the parties in accordance with the relevant provisions of the Settlement Scheme No.

1. This order under appeal does not call for any interference by this Court. There is no force in this appeal which is dismissed. But there is no order as to costs in the circumstances of this case. Appeal dismissed.