1990 PLP 866 (SCMR)

ORDER. S. USMAN ALT SHAH, J.‑‑‑Leave to appeal has been sought by the petitioners against he order dated 23‑7‑1980 of the Lahore High Court, Lahore arising out of a settlement matter, wherein Ch. Muhammad Nawaz petitioner predecessor‑in‑interest of the petitioners had been allotted an evacuee House No.HQ355, Chachi Mohallah, Rawalpindi on 18‑10‑1947 who was in possession of the said house. He being a displaced person from Delhi, applied on Form NCH as non‑claimant, on 7‑8‑1959 to the Deputy Settlement Commissioner, Rawalpindi, who vide his order dated 15‑3‑1900 transferred the said house in his favour. Ch. Muhammad Nawaz entered into agreement of association for the purposes of making payment with the claimant Muhammad Saeed petitioner No.6. One Major J.H. Naqvi made an application before the Deputy Settlement Commissioner, alleging that the said Ch. Muhammad Nawaz was not a displaced person and he himself being in possession of a choice certificate applied for the transfer of the house in dispute. Ch. Muhammad Nawaz tried through different types of documentary evidence, to be proved a displaced person under section 2 of the Displaced Persons (Comp. & Reh.) Act, 1958 but it was not accepted by the Deputy Settlement Commissioner and the house in dispute was transferred in favour of Major J.H. Naqvi vide his order dated 28‑12‑1960. Ch. Muhammad Nawaz filed appeal before the Additional Settlement Commissioner against the said order which was rejected on 5‑4‑1961. Mst. Sardar Begum respondent No.1 filed an application before the Director Enforcement Evacuee Property, wherein she alleged that Ch. Muhammad Nawaz being a local was not entitled to the transfer of the house in dispute as its value was more than Rs.10,000 who on the basis of this application filed 1st revision before the Settlement Commissioner against the transfer order of the disputed house in favour of Major J.H. Naqvi. This application was dismissed on 30‑8‑1961 and his 2nd revision petition before the Chief Settlement Commissioner was allowed vide order dated 19‑3‑1962 and it was held that the house was not available for transfer to Major J.H. Naqvi and, therefore, it should be transferred to Mst. Sardar Begum respondent No.1 on usual terms and conditions as she is a displaced person. This order was challenged by Maj. J.H. Naqvi through a Writ Petition in the High Court which was dismissed on 15‑6‑1962 and his subsequent petition for leave to appeal before the Supreme Court was admitted for regular hearing as an appeal No.34/65 and was finally dismissed. Reported in PLD 1900 SC

512. Ch. Muhammad Nawaz who was also a party before the Supreme Court, had separately filed a Writ Petition before the High Court which was dismissed on 4‑10‑1965 and his L.P.A. against this order was accepted by the High Court on 12‑10‑1972 and the order of transfer of the disputed house in favour of respondent No.1 was set aside. The respondent No.1 did not challenge this order further in the Supreme Court and became final, on the basis of which the case was remanded to the Settlement Commissioner Rawalpindi for deciding the 1st revision petition filed by Ch. Muhammad Nawaz. The Settlement Commissioner accepted the documentary proof of Ch. Muhammad Nawaz as a displaced person from Delhi and was entitled to the transfer of the house in dispute, vide his order dated 2‑5‑1974 the said house was transferred in his name. The judgment of the Supreme Court dated 25‑2‑1966 titled ',Maj. J.H. Naqvi v. Enforcement Officer and others" reported in PLD 1966 SC 512 held that Ch. Muhammad Nawaz was a local person and no relief was claimed against him, while on the other hand the L.P.A. filed by Ch. Muhammad Nawaz, decided on 12‑10‑1972 was accepted in his favour by the High Court. Major J.H. Naqvi who had challenged the transfer of the house to Mst. Sardar Begum through the Enforcement Director and is binding inter se as amongst co‑defendants or co‑plaintiffs and thus Ch. Muhammad Nawaz was not bound by the judgment of the Supreme Court. The Lahore High Court vide judgment dated 27‑3‑1980 had set aside the order of the Settlement Commissioner dated 2‑5‑1974 and interfered in the finding of fact arrived at by the Settlement Commissioner after taking into consideration the documents of evidence. Hence this petition for leave to appeal. The main contention of the learned counsel of the petitioners before is that the informer application has lapsed by virtue of Ordinance II of 1962 as the S.R.O. dated 1‑9‑1961 had come into an end on the amendment of section 10 by the Ordinance II of 1962 and the High Court failed to refer to this question and the authority reported in PLD 1974 SC

113. Similarly, the High Court failed to decide the facts of the judgment of the Supreme Court between Major J.H. Naqvi and the Enforcement Director including the facts qua status of petitioner Ch. Muhammad Nawaz being mere a proper party before the Supreme Court in a reported case in PLD 1966 SC

512. After hearing the learned counsel we have come to the conclusion that the contentions raised by the learned counsel involved the question of substantial nature of public importance which need final determination by this Court. We, therefore, grant leave to appeal. Security Rs.2,

500. Appeal shall be made ready on the present record, however, the parties are at liberty to rile additional documents, if they so desire. AA./M‑1266/S Leave granted.