1973 PLP 403 (SCMR)

Date of hearing : 24th May 1973. ANWARUL HAQ, 'J.‑This petition for special leave to appeal is directed against an order made by a learned Single Judge of the Lahore High Court on the 28th of March 19 72, whereby a constitution petition moved by respondents Nos. 1 to 6, as successors‑in‑interest of one Chhotey Khan, in respect of the transfer of house No. R/52‑B, Saidpuri Gate, Rawalpindi, was accepted and the case was remanded to the Deputy Settlement Commissioner for a proper disposal of the NCH form file‑4 by Chhotty Khan during his lifetime. The petitioners had filed a review petition in the High Court but the same was dismissed by the learned Judge on 3‑4‑

72. The present petition, filed on i 5‑9‑1972, is barred by five days counting from the date of the original order dated the 28th of March

97. The delay is sought to be explained by the fact that the petitioners bad, in the first instance, invoked the power of review vesting in the High Court. The delay being only of five days, and there being no negligence on the part of the petitioners, we would condone the delay and proceed to consider the matter on merits. According to the averments made in the writ petition by the respondent's, the building consisted of five portions, out of which Chhotey Khan was in exclusive possession of one portion since 1947‑48, and one portion was with Zahoor Ahmad, the predecessor‑in‑interest of the present petitioners, who were the respondents before the High Court. It was alleged that although Chhotey Khan had filed an NCH form on 10‑8‑19*59, yet no orders were mad;; thereon. It, these circumstances, Chhotey Khan submitted another application under Settlement Scheme No. VIII, and it was during proceedings on this application that it transpired that the entire property had been transferred to Zahoor Ahmad. Chhotey Khan challenged this transfer by way of appeal, but the same vas dismissed by the Additional Settle ment Commissioner, by his order dated 29‑11‑,

969. His revision petition was also similarly dismissed by the Settlement Commissioner on 23‑6‑

70. The High Court has found that the NCH form filed by Chhotey Khan, the predecessor‑in‑interest of respondents Nos.1 to 6, was not disposed of by the competent authority, and that the entire house was transferred to Zahoor Ahmad, the predecessor‑in‑interest of the present petitioners, on the 9th of December 1Y63, without holding an enquiry as required by Settlement Scheme No.1 and without affording to Chliotey Khan and the other occupants of the building an opportunity of being heard. The High Court has further observed that no reliance could be placed on the rent receipts which were produced by the present petitioners in support of their assertion that Chhotey Khan had accepted the transfer in favour of Zahoor Ahmad and attorned to him as a tenant. On this view of the matter, the High Court has held that the NCH form filed by Cbhotey Khan in the year 1959 needs to be disposed of in accordance with law. The transfer order made in favour of Zahoor Ahmad has therefore been quashed. The main point urged in support of the present petition is that the High Court has committed an error patent on the face of the record in coming to the conclusion that the NCH form of Crhotey Khan bad not been disposed of. It is submitted that in fact an order had been made by the Additional Settlement Commissioner on 1‑9‑1959 rejecting the NCH form of Chhotey Khan, that this fact was brought to the notice of the learned Judge in the High Court, but he has erroneously refused to give any weight to it. The order of the Additional Settlement Commissioner relied upon by the petitioners is stated to have been recorded on the NCH form itself, and runs as follows :‑ "Reasons for delay not given. Allotment chit not produced. Rejected." There is no indication on the record, nor is it even alleged by the petitioners, that this order was ever conveyed to Chhotey Khan. It was for this reason that he kept on agitating that although he had applied for the property yet no decision had been given in that behalf It was also for this reason that he had submitted another application under Settlement Scheme No. VIII. If the order rejecting his NCH form had been conveyed to Chhotey Khan, or if Chhotey Khan had been heard at the time the entire property was transferred to Zahoor Ahmad, it would have been open to Chhotey Khan to agitate by way of appeal or revision at the proper time, and to make out a case on merit. However, no such opportunity was afforded to him. In the circumstances, the High Court was right in holding that the NCH form submitted by Chhotey Khan had not been disposed of according to law. ‑ The learned counsel for 'the petitioners further submits that Chhotey Khan had acknowledged Zahoor Ahmad as the landlord of the premises and attorned to him as a tenant, and therefore, Chhotey Khan's successors‑in‑interest are now estopped from challenging the transfer in favour of Zahoor Ahmad. We have already stated that the rent receipts relied upon by the petitioners were not found dependable by the High Court, and the record showed that in the ejectment proceedings initiated by the petitioners, the respondents had denied the relationship o landlord and tenant between the parties. In these circum stances, it is not possible for us to hold that the legal represen tatives of Chhotey Khan were estopped in any manner from agitating against the present petitioners, Lastly, the learned counsel referred us to Abdul Majid Shaida v. NoorJehan (PLD1967SC221) and Zia‑ud‑Din v. Chief Settlement Commis sioner (1972SCMR60) in support of his submission that it was not at all necessary for the Settlement authorities to hear Chhotey Khan. nor was the High Court interfering with the revisional order made by the Settlement Commissioner against Chhotey Khan. Both the authorities are, however, not applicable to the facts of the instant case, in which not only the interested party was not heard, but even the order rejecting his NCH form was never conveyed to him. For the foregoing reasons, we would dismiss this petition. Petition dismissed.