1986 PLP 1581 (MLD)

Maroof Ali Khan for Respondents Nos. 4 and

5. The petitioner has felt aggrieved against the order passed by Deputy Settlement Commissioner on 5‑4‑1965, 29‑2‑1972 and by Additional Settlement Commissioner on 18‑8‑1972 and by Settlement Commissioner on 22‑3‑1973.

2. Admittedly, the dispute is in respect of property No. D‑945/1, Sukkur, Mst. Jamila was resident of First Floor of the same while Mst. Saeeda was resident of ground floor. Both of them had applied on C.H. Form but wrongly they had mentioned the property as D‑946/1. Both of them had, however, clearly mentioned the possession of the other person in respect of the other portion. On 6‑12‑1959 P.T.O. was issued in favour of Mst. Saeeda as well as Mst. Jamila but it was for the entire house. The matter remained pending for a quite good deal, of time and nothing happened. On 21‑2‑1962 the present petitioner appeared to have entered into an agreement with Mst. Saeeda by which she surrendered her rights in favour of the petitioner. But this surrender deed was not produced before the Settlement Authorities till 1965. On 5‑4‑1965 the Deputy Settlement Commissioner passed an order in respect of reconciling the conflicting claims. The first finding that he has given is that both the ground and first floors are two self‑contained units with all amenities of life. Only Mst. Jamila was present before him. Mst. Saeeda was stated to have left the premises three years before. And someone had stated from the ground floor that possession had been given to Mst. Jamila by Mst. Saeeda since the last three years. He, therefore issued the appendix for entire house to Mst. Jamila. Thereafter, Maqsood, petitioner appears to have moved the Settlement Authorities but his application for transfer of house was not entertained and he was advised to file an appeal against the order of 5‑4‑1965 which he did, Mst. Jamila did not pay the instalments of the property and, therefore, the property was resumed in 1969. Muhammad Yasin who had taken over the rights of Mst. Jamila appealed against the resumption order. The two appeals were heard together and on 29‑2‑1972 Deputy Settlement Commissioner came to the clear finding that the ground floor and first floor are two self‑contained units with all amenities of life but he did not give the ground floor to Maqsood on the ground that Maqsood was not in possession since December, 1957 and, therefore, he gave the entire house to Mst. Jamila and made a direction that she should pay the price 'within thirty days and if she does not do so then Maqsood can apply under M.L.R.

86. On 18‑8‑1972 the appeal of Maqsood was dismissed by Additional Settlement Commissioner on the ground that the agreement of Association of Mst. Saeeda with Maqsood was doubtful because it was produced three years afterwards; and that Maqsood was the person who was' not in possession upto 12‑11‑1962 and that Mst. Saeeda left the disputed property in November, 1962 without pursuing her case. He also noted that no payment had yet been made by any person in respect of the price of the said property. He finally took the view that Mst. Saeeda had waived her rights and they had been extinguished by her conduct and that claim of Mst. Saeeda had become ineffective and incompetent and that N.C.H. Form filed by Maqsood showing his possession of the disputed property from 1957 was also incompetent, and that as a matter of fact he was residing with his brother Ashfaq in House No. D‑729 till 12‑11‑1982. He, therefore, upheld the transfer of the property in favour of Mst. Jamila.

3. The Settlement Commissioner rejected the appeal of Maqsood on 20‑2‑1973 on the ground that Iqrarnama in favour of Maqsood executed by Mst. Saeeda was not a surrender deed as envisaged by the instructions issued by Chief Settlement Commissioner because till 1962 only the claim holders could be associated with the transferees while strangers could not be associated and those instructions by which strangers could be associates were issued only in 1965. He further held that Maqsood had come into possession of the ground floor premises in 1962 and, therefore, he was not entitled for transfer under Scheme No. 8 either and hence the property could be transferred to the respondent Mst. Jamila.

4. Mr. Nasrullah Awan has submitted that Mst. Jamila could not be transferred two independent units of the same property. This submission is correct but the difficulty is that Mst. Saeeda was rightly held to have waived her rights in respect of the property and she was not found in possession of the same when the Deputy Settlement Commissioner himself visited the property in 1965. The petitioner did not get his agreement with Mst. Saeeda registered with the Settlement Authorities but on the other hand, he committed the mistake of filing N.C.H. Form showing his possession of the property since 1957 which has been found to be not proved and I do not find any justification to interfere with that finding because that is a finding of fact which is justified on record. Moreover, I find that Muhammad Yasin has been associated by Mst. Jamila as the claimant and that now Muhammad Yasin is the transferee of the property and he should not be prejudicially dealt with as he was transferee in due course without notice. But surprising thing is that even Muhammad Yasin has not paid the price of the property to the Settlement Department and in spite of the fact that Additional Settlement Commissioner had noted this fact the Additional Settlement Commissioner failed to take any action on that basis and even the Settlement Commissioner failed to note that neither Mst. Jamila nor Muhammad Yasin have made any payment in respect of the said property. I do not feel inclined to interfere in the order passed by the Settlement Authorities in this respect but I cannot restrain from expressing myself on the point that the Settlement Authorities have failed to note the factum of non‑payment of the price by the transferred of the property. If this fact is found to be correct then it is only appropriate that the Settlement Authorities should take the necessary action in that regard and if in that process Maqsood becomes entitled to make an application then his claim should be given serious thoughts.

5. In these circumstances, this petition is dismissed. H. B. T. Petition dismissed.