1984 PLP 310 (MLD)

(ii) It however appears that subsequent to disposal of the above-mentioned two petitions Nizamuddin filed an application on 30th May, 1974 for transfer of property now in dispute. On the same date the Additional Settlement Commissioner made an endorsement condoning the delay in filing the said application on the condition that the property applied for was available for transfer. The application was registered and a report was called. Site inspection was accordingly made and the following report was submitted:- "The applicant Nizamuddin s/o Mehmood Khan has filed the attached B.S. form application for the transfer of the rest area of the Plot No. II-C-4 as an area of 100 Sq. yds has already been transferred to the opponent, Abdul Qadeer in open auction as per attached Writ Petitions Nos.48 and 280 of 1970, dated 11-6-1974, for which the necessary P.T.D. stands issued. Now the applicant has filed the attached form in which the total area has been shown as 858 square feet. I have inspected the spot and found that the applicant is in occupation of an area of 861-1 square feet in which 483 is a covered area having one hall and 378-1 is an open space being used as courtyard. This area is separate than the area of 110 Sq. Yds. which has already been transferred to the opponent. Thus, the applicant is entitled to retain the same. Under Schedule VIII for which the value comes to:

95.7 Sq. Yds x 5 plus 50%?????????????????????????????????????????????????????? Rs.480.00 ??????????????????????????????????????????????????????????????????????????????????????????????? Plus Rs.240.00 ???????????

if approved the necessary appendix may be issued to him. (Sd..) Accoutant ??????????? 20-5-1975" On the receipt of the above report, the Deputy Settlement Commis?sioner ordered the transfer of the plot measuring 95-7 square yards to Nizamuddin, the respondent No. 3 as he was found entitled to its transfer. This order was passed by the Deputy Settlement Commissioner on 20-5-1975.

3. Against the order of transfer thus made by the Deputy Settlement Commissioner, the petitioner filed revision Petition before the Settlement Commissioner, Sukkur. The Settlement Commissioner in his order passed on 16-4-1976 observed:

"Briefly facts leading to the dispute are that there is a plot No.II-C-4-A at Moro which is claimed to be in possession of both the parties who have been contesting each other for transfer of the same. The plot in question was transferred consequently vide order, dated 11-6-1974 passed by the Honourable High Court, Karachi whereby the petitioner was found entitled only for 110 Sq.Yds. and thus rest of the area was transferred to the respondent on his B.S. form by the D.S.C. Hence this revision Petition. " Having noted the facts stated above which I find cannot be disputed being in accordance with the observations made in the judgment of the learned Judge of this Court given in Constitutional Petition No.48/1970 and Constitutional Petition No.280/1970, the Settlement Commissioner after recording the contentions of the Advocates for the parties, dismissed the said revision Petition holding as follows:- "Heard the parties at length and perused the record. It is evident from the record that the petitioner was transferred only 110 Sq. Yds. and the rest of the area was available for disposal which has rightly been transferred by the Deputy Settlement Commissioner to the respondent on his B.S. form assigning it as D.S.No.II-C-4/A-1. Keeping in view the facts discussed above I find no justification to interfere with the transfer documents already stands issued to the respondent. Petition is accordingly dismissed. "

4. Against the above order passed by the Settlement Commissioner the present petition has been filed invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973.

5. I have heard the learned Advocates for the parties. Mr. Maroof Ali Khan, the learned counsel for the petitioner contended that the petitioner Abdul Qadeer is the transferee of plot bearing survey No.II-,C-4/A, situated at Moro at the auction sale held pursuant to the auction wherein this property bearing No.II-C-4/A was described as a compound owned by Hawat Rai occupied by Abdul Ghafoor and was shown, at item No.VIII of the notice of auction of evacuee properties which was scheduled to be held on 10th September, 1968. According to him, the petitioner Abdul Qadeer had purchased the property bearing Survey No.II-C-4/A irrespective of its area and thus the Settlement authorities had no jurisdiction to transfer any portion thereof by assigning the survey No.II-C-4/A-1. According to the learned counsel ass portion of the property purportedly transferred to Nizamuddin was not available and thus the Settlement authorities acted without jurisdiction in passing the impugned order of transfer in favour of Nizamuddin.

6. I, however, find that this argument of Mr.Maroof Ali Khan, the learned counsel for the petitioner cannot succeed. It would be observed that the identity of the property transferred to the petitioner stood concluded by the judgment given in C.P. No.48 of 1970 (Abdul Qadir v. Settlement Commissioner and others) wherein the same has been described as follows:

.... "property measuring 110 square yards in Moro and bearing No. II-C-4/A?????..????? the said property ??it is a building site. The learned Judge further ordered:

"I, therefore, allow the Petition No.48 of 1970 set aside the Settlement Commissioner order directing a fresh auction of the said property and I also direct "that the P.T.O. for it shall be issued to the Petitioner." The above findings as to the property measuring 110 square yards directed to be transferred to the petitioner Abdul Qadir, was allowed to attain finality. Neither any proceedings /remedy was ever taken nor the same was challenged by the petitioner at any time. The petitioner, therefore, cannot be allowed to reopen the same on the principle laid .down in the case of Murad Bibi v. Ramzan Bibi 1968 S C M R 1007.

7. In the light of the direction given in the Writ Petition No.48 of 1970, the Settlement authority was justified to hold that the respondent No.3/Nikamuddin, is entitled to transfer of the portion measuring 95-7 square yards (i.e. the portion other than 110 square yards for which P.T.O. was directed to be issued in the above-mentioned Writ Petition). The petitioner has no locus standi to challenge the transfer of excess area to' the respondent No.3 on the findings reached by the Settlement authority that the same was available property and that the said respondent is entitled to its transfer under Scheme No. VIII. These findings reached by a competent authority cannot be described as without lawful authority and of no legal effect.

8. The upshot of the above discussion is that this petition has no merits and is accordingly dismissed. The parties are left to bear their own costs. M.Y.H. ?????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.