2004 PLP 323 (SCMR)

MUNIR A. SHEIKH, J.

This judgment may be read in continuation of the orders passed by this Court 6n 27-5-2003 and 28-5-2003. By this common judgment we propose to decide these petitions involving common question of law and facts.

2. The dispute relates to construction/interpretation of associat1on deed which was executed between Fazal Hameed, deceased, the transferee of major portion of the property inclusive portion of Fazal Karim deceased and Khalifa Syed Iqbal Hussain, Syed Abdul Hassan and Syed Muhammad Mushtaq herein called associates. On 26-5-2003 the parties settled the matter through compromise which was to the effect that in full and final settlement and satisfaction of the said association deed the said associates may be given transferred an area of 2 Kanals of which the front should be 60 feet from the side of Abbott Road. The S.D.O. (Central) of Pak P.W.D. was directed to demarcate the said area who submitted the said report from which it transpired that if an area of 2 Kanals is demarcated with a front of 60 feet, an area of 7 Marlas on the rear side of the property would- be left without any approach which will not be of the use of any of the parties except the associates with whose demarcated area it was attached. The learned counsel for the parties thereafter agreed for modification of-the original agreement of frontage of 60 feet to the extent that the said area of 7 Marlas on the rear side may be given to the associates, and proportionately the size of the frontage may be reduced. The S.D:D. (Central), Pak, P.W.D. was, therefore, directed to again demarcate the said area of 2 Kanals which would include the area of 7 Marlas on the rear side who has submitted his report alongwith the site plan in which the area of 2 Kanals has been demarcated by A-B-C by us and has been placed on the record as "Mark-A". This area has frontage of about 51 feet from Abbott Road and length of 184.3 feet towards the remaining portion of the property and 171.3 feet on the side of Shabistan Cinema. It has been shown in yellow colour on the site plan which has been duly signed by learned counsel for all the parties in all these petitions. This portion of 2 Kanals has been surrendered by heirs of Fazal Hameed from their joint ownership of the property and the remaining property transferred to them is also jointly owned by them.

3. This settlement/compromise in our view is valid agreement and the request of the parties for disposal of these petitions in terms thereof is not only just and proper but also in the larger interest of the parties to save all of them from further litigation.

4. It has been agreed before us that the terms of the original association-deed whereby the associates are held liable to pay the entire transfer price of the property in view of the surrender in their favour the said area of two Kanals would be continued to be binding on them with further clarification that if any amount is found to be due in respect of and other charges they would pay the same and would not her right in the property.

5. The petitions are converted into appeals, impugned judgment of the High Court is set aside and the appeals are disposed of in the following terms:

(a) The associates shall be transferred an area of 2 Kanals demarcated as A.B.C.D. in the plan "Mark-A" duly signed by learned counsel for all the parties herein which has frontage of 51 feet from Abbott Road and length of 184.3 feet towards the remaining portion of the property and 171.3 feet on the site or Shabistan Cinema which has been shown in yellow colour about which P.T.D. shall be issued in their favour or the L.Rs. as the case may be. The associates shall be joint owners of the same in equal shares. (b) If any amount is found due towards the transfer price or other charges by the Settlement Department the same shall be paid by the associates. (c) The remaining transferred portion of the part of the property is owned by heirs of Fazal Hameed jointly in proportion to the shares which they had inherited under Muhammadan Law and h any of them had already transferred or disposed of any portion thereof from undivided property the same would not prejudice the rights of any of the other joint owners to enforce their right in partition proceedings of the property. The parties shall bear their own costs. (d) It has been brought to our notice that at one stage the property in dispute was occupied by police and after it was got vacated the same was trespassed by a number of other persons who are in illegal occupation thereof. The case is remanded to the Chief Settlement Commissioner to this extent to get the said portions occupied by the trespassers of the property vacated and deliver the same to the heirs of Fazal Hameed transferee under section 28 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, for which the case shall be deemed to be pending proceedings within the contemplation of section 3 of the 'Evacuee Properties (Repealed) Act of 1975. The matter of issuance of P.T.D. to the respective transferees as aforementioned shall also be taken up and P.T.D. issues according to law to the respective parties /transferees within a period of two months from the date of production of this order. A.K./Z-146/S Order accordingly.