1976 PLP 222 (SCMR)

MUHAMMAD AKRAM, J.‑‑In the first Instance a petition filed by the petitioner for special leave to appeal from she judgment dated 16th August 1960, passed by a Division Bench of the then West Pakistan High Court, Quetta Circuit at Quetta was dismissed by this Court on the 18th January 1967. But afterwards on the 17th April 1967, the order was reviewed and the leave to appeal was granted to her. In these circumstances the above appeal has been put up, before us for its disposal on the merits. It appears that House No. 4‑37/24, consisting of five rooms, situated at Kaikabad Road, Quetta was at first allotted to Mst. Allah Rakhi appellant but afterwards in modification of that order on the 25th October 1956, the Assistant Settlement 8t Rehabilitation Commissioner allotted a portion consisting of three rooms to the appellant and the remaining portion comprising two rooms to Mst. Atom Bibi, respondent No.

1. With the commencement of the settlement operations, the appellant filed a C. H. form and the Deputy Settlement and Rehabilitation Commissioner, Quetta, appears to have transferred the entire house to her for which a P. T. O. was also issued in her name on the 16th November 1959. Afterwards on the 17th February 1960, she appears to have moved an application to the effect that she was not in a position to pay for the whole house and therefore, requested that arrangement might be made for accommodating her in the portion of the house in her possession to the extent of her verified' claim. But thereafter she withdrew the request before any final order could be passed on that application. Accordingly on the 11th March 1960. She submitted another application to the effect that the ,evaluation princes of the house and shops had since been reduced under the new formulae, and, therefore, she was willing to pay for The entire house transferred to her. Respondent No. 1 also filed a belated N. C. H. form for the transfer of the house in her possession. On this, on the 24th May 1960. the Additional Settlement he Rehabilitation Commissioner, Quetta admitted her form conditionally provided the house had not been otherwise disposed of. But eventually the Deputy Settlement and Rehabilitation Commissioner rejected her form on the 16th August 1960, on the ground that the house having already liven disposed of in favour of Mst. Allah Rakhi appellant, it was no longer available for transfer to her. She then made an undated application to the Deputy Settlement Commissioner, Quetta, for the transfer of plot comprising Khasra No. 3820, Kaikabad Road, Quetta to her under Settlement Scheme No. VI. On this on site inspection it was reported that House No. 4‑37/24 compromising three roc is was in Possession of the appellant and that in addition to that two rooms not forming pan of the house were in possession of respondent No.1. It was a burnt property and she constructed the rooms herself and as such it was transferable to her appears that thereafter the Deputy Settlement Commissioner, Quetta along with Assistant Settlement Commissioner inspected the site and found that the respondent was in occupation of plot bearing Khasra No. 3820, built by her. He, therefore, provisionally transferred the same to her on assessed price plus 50 %. On the 27th February 1961, the appellant filed an appeal against the transfer to respondent No.

1. But Mr. Muhammad Khan. Additional Settlement & Rehabilitation Commissioner, Quetta, after bearing the counsel for the parties, dismissed the appeal on the 7th June 1961. He observed that the two rooms in possession of respondent constituted an independent unit. In spite of this the appellant filed yet another, appeal against the transfer to the respondent but it woes dismissed by Mr. Abdul Matin Siddiqi, Additional Settlement Commissioner, Quetta as incompetent. The appellant then filed a revision against the two orders dated 7th September 1961, and 17th June 1963, passed by the Additional Settlement Commissioner, dismissing her appeals. On this the Settlement Commissioner called for a report from the Deputy Settlement & Rehabilitation Commissioner sitter site inspection. Accordingly he submitted his report to flu effect that the whole premises bearing House No. 4.37/24 constituted one property having two independent units in the occupation of the parties. As such transfer of a portion of the same property to the respondent after its transfer to the appellant was not in order. It appears that in tee meantime one Shamasuddin as attorney of the appellant filed another revision for her. The Settlement Commissioner dismissed both then revisions by his two separate orders passed on the 12th June 1965. He dismissed the revision filed through Shamasuddin as incompetent in tine absence of any power of attorney from the appellant in his favoar. The other revision was also dismissed on the ground of lathes. It was also observed that her appeal filed for the second time before the Additional Settlement Commissioner was clearly misconceived and was also barred at time. It appears that in the meantime one Abdul Majid had also filed an appeal against respondent No, 1 against the transfer of plot bearing Khasra No. 3820 to her by the Deputy Settlement Commissioner. He also impleaded Allah Rakhi as an additional respondent in the appeal. The Additional Settlement & Rehabilitation Commissioner dismissed that appeal on the 10th September 1964. In that order he observed in that House No. 427/25 transferred to Abdul Majid arid House No. 4‑37,124 transferred to the appellant were built over plot bearing Khasia No. 3820 and a portion of this house was actually in occupation of respondent No.

1. On site inspection, he was satisfied that the portion transferred to the respondent consisting of two rooms, a small courtyard and attachments, was separated from the portion transferred to the appellant by a temporary partition wall and that all the three portions held by the parties to that appeal stood already divided and that, there was, therefore, no reason to deprive respondent No. 1, a poor widow displaced person from the portion in her possession. In these circumstances, the appellant filed a petition under article 98 of the late Constitution of Islamic Republic of Pakistan, 1962 challenging the validity of the transfer of portion to respondent No.

1. But on the 29th October 1965, a learned single Judge of the then High Court of West Pakistan, Quetta Circuit, Quetta dismissed the writ petition in limine. Dissatisfied, the appellant then filed a Letters Patent Appeal against the judgment. But a Division Bench of that Court on 16‑8‑1966 dismissed the appeal In limine holding that at first the appellant had herself declined to accept the transfer of the entire house to her and, therefore, she could not stage a come‑back to claim the whole of it. Her appeal having been dismissed on the 7th September 1961, in the presence of her counsel, the appeal filed by her for the second time was wholly misconceived. Nevertheless she adopted this device merely to cover the inordinate delay in filing the revision before the Settlement Commissioner. In the opinion of the Court the property was divided into two houses and one of these given to the appellant in satisfaction of her claim. In the opinion of the Court there were no equities in her favour. We have heard the learned counsel for the appellant in this appeal by special leave before us. He vehemently argued that the whole of this house in dispute was transferred to the appellant on her C. H. form by the Deputy Settlement & Rehabilitation Commissioner concerned on the 16th November 1959, and the respondent failed to file any appeal against the order. Her belated N. C. H. form filed for the transfer was also rejected as barred by time. The transfer in her favour, therefore, became final. Thereafter the Settlement authorities had no jurisdiction to slice away a portion of the property comprising of two rooms for the sake of respondent No.

1. Indeed, this was the main plank of the argument addressed before us by the learned counsel. But we find that much water has flown ever since and it is too late now for the appellant to reopen the matter. As already discussed above, afterwards the portion of the property icy dispute was transferred to the respondent by the Deputy settlement & Rehabilitation Commissioner on her platform. The appellant went up in appeal against the order, which was dismissed by the Additional Settlement & Rehabilitation Commissioner after hearing on 7‑9‑1961. The appellant did not go up in revision against that order and instead filed another appeal against the order wrongly alleging that her previous appeal had been dismissed due to non‑appearance of the parties. The Additional Settlement Commissioner dismissed that appeal on 17‑6‑1963 as incompetent after her first appeal having been disposed of after hearing. The two successive revisions by the appellant were also dismissed by the Settlement Commissioner, Quetta on the 12th June 1965. The orders thus passed in the appeal and on revision are unexceptional. The competent Settlement authorities have declined to exercise their discretion in favour of the appellant. We find that substantial justice was done to the parties in transferring the portions of the house in the respective possession of the parties and the equities are not in favour of the appellant. The two portions were held to be divisible and the appellant cannot lay her claim to more than the divided house transferred to her. For the foregoing reasons, we see no force in this appeal which is, accordingly, dismissed with costs. Appeal dismissed.