1985 PLP 2000 (SCMR)

NASIM HASAN SHAH, J.‑‑The dispute relates to transfer of a room which according to Zulfiqar 'Ahmad, appellant, is a part of house No.245/251 (4‑3/33), Babu Mohallah, Sibi, transferred to him, but it is, on the other hand, claimed by Gulzar Khan, respondent, as a part of adjacent House No. 246/252 (4‑3/34) transferred to him. It is unnecessary, in view of the short question falling for decision before us, to record the details of the earlier proceedings relating to the issue of transfer of this evacuee property. Suffice it to say that House No. 246/252 (4‑3/34) which consists of 3 rooms was finally transferred to Gulzar Khan under P.T.O. dated 20‑1‑1972. House No.245/251 (4‑3/33) consisting of 2 rooms was occupied by one Arbab Khan and after he left, Siraj Ahmad, father of Zulfiqar Khan (appellant herein), took its possession and finally it was transferred to him under P.T.D. dated 2‑1‑1973. Both the houses belonged to the same evacuee owner and one room in between is now the subject‑matter of the dispute in these proceedings. According to Gulzar Khan the previous occupant of House No.245/251(4‑3/33), namely, Arbab Khan and settled the dispute regarding the room in question in his favour under statement dated 28‑9‑1966. Zulfiqar Ahmad, however, claimed the room as a part of the house transferred to him. He submitted an application on 23‑6‑1974 before the Assistant Settlement Commissioner (Sibi) for the site inspection and for adding the disputed room in his P.T.D. This application was still pending when the Evacuee Properties Law Repeal Ordinance, 1974 came into force and the said case stood transferred to the Court of the Board of Revenue. The said application which came before the Member, Board of Revenue succeeded who by his order dated 16‑3‑1983 held that the dispute regarding the room in question was a pending case and on the basis of inspection note recorded by his predecessor Member, Board of Revenue‑III after the site inspection held on 6‑4‑1982, tile appellant was entitled to transfer of the room as it is part and parcel of the house of Zulfiqar Ahmad". Gulzar Ahmad (respondent herein) challenged this order in a Constitutional Petition in the Baluchistan High Court at Quetta which succeeded for the reason that it was held by the learned Judges of the Division Bench who dealt with the petition that the disputed room was included in the P.T.D. issued to Gulzar Ahmad and the learned Member, Board of Revenue, had no legal authority to deal with the case. It is in these circumstances that Zulfiqar Ahmad filed this petition for leave to appeal from the judgment of the High Court which was granted and we have heard Mr. Talmiz Burney, learned counsel for the appellant and Mr. Khalid Malik, the learned counsel for the respondent. There appears to be force in the submission made by the learned counsel for the appellant that the disputed room was neither transferred to any party nor included in the P.T.Ds. issued to them and the finding of the learned Judges in the High Court is not, therefore, borne by record. Be that as it may we are inclined to hold that the finding of fact reached by the learned Member, Board of Revenue that the dispute regarding the room in question was a pending case and that the said room was essentially a part of the house transferred to the appellant was not open to interference by the High Court in exercise of its constitutional jurisdiction. Indeed in Begum Shams‑un‑Nisa said "Akbar Abaasi and another P L D 1982 S C 413 this Court has held that even if an authority which was earlier exercising jurisdiction in regard to the matters in dispute between the parties is found to have lost jurisdiction in the matter on account of subsequent changes in the law, but its order which is impugned in writ jurisdiction was passed bona finely and is a fair, just and proper order directed to rectify some wrong and otherwise passed to foster justice, the High Court should refrain from interfering with such an order in exercise of its discretionary jurisdiction to issue a writ. But if it does issue a writ in such circumstances this Court may be constrained to recall such a writ and set aside the order of the High Court. The result is that this appeal succeeds. The order and judgment of the High Court dated 16‑11‑1983 is set aside and the order dated 16‑3‑1983 passed by the Member, Board of Revenue is restored The parties are left to bear their own costs. M. Y. H. Appeal allowed.