1989 PLP 1749 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court, is directed against the judgment, dated 4‑2‑1976 of the Lahore High Court; whereby on a review application filed by respondents No. l to 4 the successors‑in- interest of one Saroon Khan, an order of acceptance of a writ petition (filed by said Saroon Khan and the present appellant) on the basis of a compromise with respondents Nos.5 & 6, was withdrawn, auction of the property m dispute in favour of said respondents was upheld and the appellant was non‑suited as having no locus standi. The brief facts are: That the plot in question was transferred to Saroon Khan deceased under the Displaced Persons (Compensation & Rehabilitation) Act, 1958 in June 1960. He entered into an association for re‑transfer to the appellant (Ch. Zahoor Ahmad). The transfer deed with an application for acceptance of association was placed before the Deputy Settlement Commissioner by both‑‑Saroon Khan and the appellant but, proceedings having commenced thereon it appears, no final order accepting the association was passed. In the meanwhile on account of some misconception the Settlement Department auctioned the property which was purchased by Khalifa Syed Muhammad Ali and Mst. Muhammadi Begum respondents No.5 and

6. After considerable litigation in the Settlement Department Saroon Khan and Zahoor Ahmed appellant filed joint writ petition in the High Court, asserting original transfer in favour of Saroon Khan, retransfer on association to Zahoor Ahmed anpellant and illegality of subsequent auction in favour of respondents Nos.5 and

6. During the pendency of this writ petition Saroon Khan died and thereafter Zahoor Ahmed appellant and respondents Nos.5 and 6, the auction purchasers, entered into a compromise which involved payment of some amount and sharing of property by both‑‑Ch. Zahoor Ahmed appellant on the one hand and respondents No. 5 and 6 on the other hand. Although the legal representatives of Saroon Khan, respondents No. 1 to 4, it appears, had been brought on record and the said comprise purported to be on their behalf also; but, it seems that the learned counsel who signed compromise on behalf of the original writ petitioners, namely, Zahoor Ahmed and Saroon Khan had not obtained a separate power of attorney from the legal representatives of Saroon Khan; namely, respondents No. 1 to

4. This alleged fact was not noticed by the High Court when the compromise was presented for acceptance. Necessary statements were recorded but not of the legal representatives of Saroon Khan. The compromise was accepted and the writ petition was disposed of in terms thereof. As stated above, the legal representatives of Saroon Khan (respondents No' to 4 herein) objected to the disposal of the writ petition on the basis of the compromise. They also challenged the association between Saroon Khan and the appellant and tried to make out an independent case for success of their predecessor‑in‑interest Saroon Khan notwithstanding the fact that he had earlier made a joint cause with Zahoor Ahmed. Their review application was entertained and subsequently after hearing the parties concerned a learned Judge of the High Court, in a very detailed judgment, after having recalled the order of dismissal of the writ petition in terms of the compromise, dismissed the same without giving any relief to the successors‑in‑interest of Saroon Khan or for that matter the appellant Zahoor Ahmed who was treated as having no locus standi. At the same time the auction in favour of respondents Nos.5 and 6, was upheld. Leave to appeal was granted to examine the validity of the orders passed by the High Court in review. Respondents have chosen not to contest this appeal. However, we have heard the learned counsel for the appellant at length and have tried to safeguard the interest of respondents No.l to 4, the successors‑in‑interest of Saroon Khan on the one hand and the respondents Nos.5 and 6, the auction purchasers, on the other hand. We have also perused the original Settlement record as also the original records of the Writ Petition jointly filed by Saroon Khan and Zahoor Ahmed. It is apparent from the record that Saroon Khan had made a common case and cause upto the filing of the Writ Petition in the High Court. They had jointly filed the deed of association before the Settlement Authorities for its acceptance. They had jointly filed appeals and other proceedings which were supported by affidavits of Saroon Khan and the Writ Petition jointly filed by them is also supported by affidavit filed by Saroon Khan. Therefore, it will not be possible now to hold that Zahoor Ahmed had absolutely no concern with the property in dispute. It is a different matter whether or not the successors‑in‑interest were party to the compromise. It is also clear that respondents Nos.5 and 6 who are the auction purchasers had willingly entered into a compromise which was duly entered into a deed of compromise and the same was recorded formally by the High Court in its i own proceedings. The compromise is such that even if Saroon Khan and his successors‑in‑interest are excluded, the two main parties thereto, namely, Ch. Zahoor Ahmed and Khalifa Sycd Muhammad Ali and Mst. Muhammad Begum would remain bound by it. None of them have resilcd from it nor have they challenged it on any other ground. The third aspect of the present case which flows from the aforenoticed two major factual aspects, is that by the judgment of the High Court impugned in this appeal, Saroon Khan and his legal representatives have gone out of picture as the original transferees of the property in dispute with the consequence that the auction in favour of the said respondents Nos.5 and 6, has been kept intact and upheld as operative. That being so, for the purpose of compromise after the impugned judgment of the High Court, the relevant parties would be only the appllant and the said respondents Nos.5 and

6. They having accepted the compromise and there being no challenge to it from respondents Nos.5 and 6, there is no alternative but to hold that the same is effective and operative qua k: these three persons and their successors‑in‑interest. As already noticed the High Court having non‑suited Saroon Khan and his successors‑in‑interest they cannot have any objection, as they neither appeared to contest this appeal nor they have themselves challenged the impugned judgment which became final for them. In the result this appeal is allowed. The decision of the High Court on the basis of compromise between the appellant and respondents Nos.5 and 6 is ` restored. There shall be no order as to costs. M.A.K./Z‑65/S Appeal accepted.