1998 PLP 188 (MLD)

Sheikh Anwar-ul-Haq for Legal Heirs Respondent No.

1. Date of hearing: 24th July, 1997. This order shall dispose of petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking a direction against respondent No.2 for transfer of a portion of House No.H/571, Ward No.8, Akalgarh, Tehsil Wazirabad, District Gujranwala.

2. According to the petitioner', the house is double-storey construction comprising of 11 rooms, six on the ground floor and five on the first floor. The petitioner claims to be in possession of the first floor and a room on the ground floor, since 1-1-1948. It is stated, that the petitioner had full trust on responder No. 1, who advised him not to file a separate form for transfer of any portion c the house. Reposing confidence on him, the petitioner claimed to have n submitted any C.H. Form for the transfer of any portion of the house under reference. It is farther claimed that on 19-10-1961,respondent No. 1 executed an agreement to sell in favour of the petitioner for the sale of the entire house in consideration of Rs.1,440 which sale consideration, according to the petitioner, was paid. According to the agreement, the sale-deed was to be registered after the issuance of P.T.D. In November, 1978, the petitioner learnt, that respondent No. 1 had obtained P.T.D., who was requited to execute a sale-deed. The petitioner claims to have filed a suit for declaration on 5-12-1978 which was subsequently withdrawn and instead a suit for specific performance was filed which is stated to be pending in the Civil Court. According to the petitioner, in the course of proceedings of the civil suit, file of the Settlement Department was examined from where, the petitioner got an impression that the entire house was not transferred to respondent No.

1. The petitioner, therefore, considering the upper portion as available property, filed a from under "Residual Property Scheme" alongwith an application for condonation of delay. This application was rejected by the respondent No.2 vide order, dated 24-2-1981. This order has been assailed in the present writ petition.

3. Learned counsel for the petitioner submitted, that the transfer order was obtained by concealment of facts and that despite the issuance of P.T.D., the respondent No.2 could entertain the form of petitioner under "Residual Property Scheme" and also that the upper portion should have been transferred to the petitioner. He submitted, that being in possession, the petitioner would be entitled to the transfer of the upper storey of the house for which he was ready to pay the price. Learned counsel for respondent No. 1, vehemently opposed the petition and submitted, that no part of the house was available for transfer and that the transfer order was never challenged by the petitioner for more than 20 years. He further, submitted, that after the issuance of P.T.D. the Settlement Department had become functus officio and that there was no pending matter with the Notified Officer, hence, neither the form of the petitioner could be entertained nor any fresh proceedings could be commenced.

4. After hearing learned counsel for the parties and carefully scrutinizing the documents annexed with the writ petition, it is observed, that the contentions raised by the learned counsel for the petitioner do not have any substance. Admittedly, the petitioner was never a claimant for the transfer of any portion of house under reference nor lie ever submitted his C.H. Form for transfer of the house or any portion thereof. It is not denied, that the transfer order was passed by the Deputy Settlement Commissioner regarding the entire house, on 28-6-1990 by which house was transferred to respondent No. 1, and this order was never challenged in appeal or in the hierarchy of settlement said P.T.O. was issued on 16-10-1969 while Appendix 'X' was issued regarding house, in favour of respondent No.

1. Finally permanent transfer deed was issued in 1964 in favour of respondent No.

1. The Settlement Department, thereafter, become functus officio, property went out in compensation pool, and respondent No. 1 became permanent transferee of the house under reference. The perusal of the order of transfer, P.T.O., Appendix-X and P.T.D. does not give any impression that a portion of the house was transferred but the documents clearly reveal that total house had been transferred to respondent No.

1. This being so, no portion of this property remained available for transfer. In these circumstances, the application of the petitioner to the Notified Officer for entertainment of C.H. Form and condonation of delay in 1980, was absolutely incompetent and untenable, inasmuch as, neither there was any pending issue before the Settlement Authorities nor any part of the property was available for transfer. The Notified Officer appointed for dealing with the pending matters or the matters remitted after remand, could not in law, deal with the property in question, as the same had gone out of compensation pool and no issue in regard thereto was pending on the date of repeal of Settlement Laws. It was and misconceived effort to involve the Notified Officer.

5. Even otherwise, the writ petition is liable to be dismissed on account of conduct of the petitioner. The petitioner himself admits, that he had never applied for the transfer of the house nor filed any C.H. Form. On the contrary, he claims an agreement of sale in his favour from respondent No. 1 and it is his case, that the sale-deed was to be executed after the issuance of permanent transfer deed. It is also not denied that P.T.D. was issued and thereafter, the petitioner firstly filed a suit for declaration and secondly, a suit for specific performance. This being so, the petitioner admits the respondent No. 1 to be a valid transferee of the property, otherwise, he could not either agree for the purchase of the property or insist for enforcement of the sale agreement. His subsequent efforts to find fault with the initial transfer order of respondent No. 1 appears to be a mala fide device to exert pressure on respondent No. 1, otherwise, after asserting agreement of sale, he was not supposed to find fault with the title of respondent No. 1 or with the basic transfer order issued in his favour. The plea, that the Settlement Authorities, could examine the vires of the transfer order at this stage, is untenable. In the first instance, after the issuance of P.T.D, the Settlement Authorities become functus officio, therefore, it cannot reopen the issue. Secondly, the Settlement Laws having repealed, the Notified Officer, appointed to deal with pending matters, did not possess jurisdiction to examine a matter which was never pending or to reopen past and closed transactions, hence the application filed by the petitioner before the Notified Officer was neither competent nor maintainable. Even otherwise, the basis of the application was that there was some report proposing transfer in favour of two persons, which too carries no force, as the same was never accepted by the Deputy Settlement Commissioner. The petitioner having not filed any C.H. Form, could not have been transferred any portion of the house, hence he could not have any grouse against the transfer of entire house in favour of respondent No. 1.

6. Regarding payment of short price, the Notified Officer has already directed the payment of the remaining price which stands paid on 18-5-1981, as evident from the copies of the bank challans placed on this record. Respondent No.2 has rightly observed, that the whole house stood transferred to respondent No.l on 28-6-1960, which order had attained finality and that the Settlement, Authorities were not competent to reopen the case.

7. For the reasons above, there is no merit in this writ petition which is dismissed. It is, however, observed, that the order in this writ petition shall not affect the decision of the suit for specific performance, which will be decided on its own merits and in accordance with law. A.A./A-180/L Petition dismissed.