1985 PLP 2448 (CLC)

The petitioner has challenged in this petition the order passed by respondent No. 1, dated 9-10-1973. The following background of the present litigations may be stated here which is relevant for decision of this petition:- Property bearing No. A/115/2229, Tando Wall Muhammad District Hyderabad was in occupation one Shakoor Muhammad (predecessor-in-title of the petitioner), deceased respondent No. 2 and one Muhammad Ismail. All of them applied under Settlement Scheme No. 1, for transfer of the portion in their respective possession. The ?petitioner was transferred a portion of the above property which has been shown in transfer document as A/115/2229/2 (part) similarly deceased respondent No. 2 was transferred No. A/115/2229/1, while Muhammad Ismail who is not a party to this petition was transferred another portion of the property described as A/115/2229. The order transferring the above property to the petitioner, deceased respondent No. 2 and said Muhammad Ismail passed by the Settlement Commissioner, Hyderabad Division, on 7-7-1960 and it gives out sufficient details in respect of each portion transferred to the above-named persons. It appears that transfer documents, were issued to all the above-named three persons in accordance with the description given in the order of Settlement Commissioner dated 17-7-1960. However, Skakoor Muhammad (predecessor-in-title of petitioner) filed an application on or about 26-4-1961 praying that the property transferred to him may be demarcated. This application of Shakoor Muhammad was 'forwarded by the Additional Settlement Commissioner to the Deputy Settlement Commissioner concerned by his order, dated 19-6-1961. The Deputy. Settlement Commissioner on the aforesaid application of Shakoor Muhammad by his order dated 11-8-1961 held that the roof of the portion transferred to Shakoor Muhammad formed part of the premises transferred to him and further held that another portion of the premises occupied by Muhammad Ismail should also be included in the transfer document of Shakoor Muhammad. Both the deceased respondent No. 2 and Muhammad Ismail challenged this' order of Deputy Settlement Commissioner in appeal which was reversed by the Additional Settlement Commissioner by his order dated 24th January, 1962. Shakoor Muhammad died. meanwhile and the present petitioner who is the legal heir of Shakoor Muhammad filed a Revision Petition before the Settlement Commissioner (District Judge, Hyderabad) against the order of Additional Settlement Commissioner dated 20-1-1962. The learned Judge, Hyderabad acting as Settlement Commissioner, by his order dated 16-11-1965, set aside both the orders of Deputy Settlement Commissioner and the Additional Settlement Commissioner dated 12-8-1961 and 20-1-1962 respectively on the ground that after the order of the Settlement Commissioner dated 7-7-1960, the Settlement Authorities could not reopen the matter. After about five years of the passing of the above order of Settlement Commissioner one of the L.Rs. of deceased respondent No. 2 Fasih Haider filed an application before the Deputy Settlement Commissioner alongwith a map of the property praying that the same may be approved. It appears that in that map the said Fasih Haider had shown the roofs of tenements Nos. A/115/2229/2 and A/115/ 2229/1 transferred to petitioner and Muhammad Ismail respectively as a part of the premises transferred to deceased respondent No.

2. This map filed by said Fasih Haider was approved by the Deputy Settlement Commissioner after calling for a report from the Settlement Inspector by order dated 14-9-1970 without hearing petitioner or any other person. An appeal was preferred by the petitioner against the above order of the Deputy Settlement Commissioner approving the plan of building but it was dismissed by the Additional Settlement Commissioner on 9-2-1972 on the ground that Permanent Transfer Deed has already been issued to the parties in respect of the premises in dispute. A revision petition presented to the Settlement Commissioner by the petitioner against the order of Additional Settlement Commissioner was accepted and the case was again remand back to the Deputy Settlement Commissioner by order, dated 19-5-1973. After remand as aforesaid, the Deputy Settlement Commissioner by order dated 20th June, 1973 refused to pass any order on the application of Fasih Haider qn the ground that in view of the earlier order passed in the case by the Settlement Commissioner in 1965, he had no jurisdiction in the matter and parties were directed to seek recourse before a competent Court. Against this order of Deputy Settlement Commissioner the L.Rs. of respondent No. 2 preferred an appeal before the Additional Settlement Commissioner which was converted into a revision and heard and disposed of by the Additional Settlement Commissioner, Hyderabad. By the impugned order dated 9-10-1973 the' Additional Settlement Commissioner held that the roof of ,premises transferred to petitioner formed part of the premises transferred to deceased respondent No.

2. The .petitioner has now challenged this order in this petition. From the above-stated facts it is quite clear that on the application of deceased Shakoor Muhammad, the Settlement Authorities had demarcated the respective premises transferred to Shakoor Muhammad, Mrs. S. Sharif Hussain (deceased respondent No. 2) and Muhammad Ismail but the order was set aside by the Settlement Commissioner and District Judge, Hyderabad on 16-4-1965 on the ground that after the order of Settlement Commissioner dated 17-7-1960 the subordinate Settlement Authorities had no jurisdiction to re-open the case: It is not disputed that neither petitioner nor respondent No. 2 challenged the aforesaid order of Settlement Commissioner dated 16-4-1965 which attained finality in law. In these circumstances the application made by one of the L.Rs. of deceased respondent No. 2 in the year 1970 for approval of plan and demarcation of premises was wholly misconceived and the Settlement Authorities had no jurisdiction to re-open the case. The Deputy Settlement Commissioner, in these circumstances rightly declined to pass any order and directed that parties to have recourse to some competent form by his order dated 20-6-1973 and there was hardly any justification for the Additional Settlement Commissioner to have interfered with those orders of Deputy Settlement Commissioner. The impugned order of Additional Settlement Commissioner, dated 9-10-1973 setting aside, the order of Deputy Settlement Commissioner, dated 20-6-1973 and holding the roof of the premises transferred to petitioner and Muhammad Ismail apart of the premises transferred to respondent No. 2, is, therefore, without jurisdiction and without authority. I accordingly accept this petition and declare the order of Additional Settlement Commissioner dated 9-10-1973 as an order without lawful authority and quash the same. The parties are however left to bear their respective costs. M.Y.H.??????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.