1985 PLP 1102 (MLD)

The dispute between the parties relates to a Chaubara built upon two shops, out of which one has been transferred to the petitioners and the other to one Allah Bakhsh who is not party to this writ petition. The petitioners claim to be transferee of the entire Chaubara. This claim in anchored on the judgments of the High Court and the Supreme Court and so also on some other documents. On the other hand, respondents Nos. 3 and 4 contend that only that part of the Chaubara which is constructed upon the shop settled on the petitioners has been transferred to them, and that rest of it alongwith residential portion falls to their lot.

2. This case has already gone upto the Supreme Court level and the transfer of the Chaubara to the petitioners upheld. The grievance voiced by them through this writ petition, is, however, directed against the Deputy Settlement Commissioner's order, dated 21-2-1976 whereby he under the cover of demarcation passed the impugned order, without even hearing the petitioners, and directed that the title documents in respect of the Chaubara, standing over the shop, transferred to Allah Bakhsh, alongwith residential portion would be issued to the respondents.

3. The limited question falling for consideration in this writ petition, is, whether the petitioners are the transferee of the entire Chaubara or only a portion thereof built upon their shop. In this connection a reference may be made to the Deputy Settlement Commissioner's order, dated 6-12-1963 (Annexure 'B') which embodies the discription of the property in dispute. The Chaubara is stated to be consisting of 'one big room convering both the shops below, a kitchen and a small courtyard'. The Deputy Settlement Commissioner ordered that the entire Chaubara would be disposed of through auction. This order was subjected to appeal and the Additional Settlement Commissioner by his order, dated 28-2-1964 (Annexure 'C') treating the Chaubara, as part of the residential portion, transferred it to the respondents. This order was assailed by the petitioners through a revision before-the learned Settlement Commissioner who in his order, dated 17-5-1965 maintained that:-- "I, therefore, accept the revision petitioner, set aside the order of the learned Additional Settlement and Rehabilitation Commissioner, Sargodha and direct that the Chaubara in dispute be transferred to the petitioners and P.T.O. be issued accordingly." The respondents then invoked the writ jurisdiction of this Court, but their Writ Petition No. 1095/11 of 1965 was dismissed by order, dated 23-10-1973 (Annexure 'F') with the observation that the Settlement Commissioner was justified to decide the fate of the Chaubara. The leave to appeal was refused by the Supreme Court on 11-7-1974 (Annexure 'H') and the review application, brought by the respondents, also failed (Annexure 'J'). These documents unequivocally establish that the whole of the Chaubara was transferred to the petitioners. This is also evident from the Transfer Order issued to them. Even the rent was apportioned between the parties by the Additional Settlement Commissioner vide order, dated 2-6-1970 (Annexure 'E').

4. Against these odds the learned counsel for the respondents half-heartedly contended that only the portion of Chaubara existing over the petitioners' shop was transferred to them but. this contention does not find any support from the record. Mr. Shahzad Jahangir, the learned counsel for the Settlement Department finds it difficult to support the impugned order and rightly states that it runs counter to the order of the Settlement Commissioner and the orders passed by the superior Courts. The same inference is deducible from the parawise comments to the writ petition, filed by the Department. 5.???????? It is lamentable that the Deputy Settlement Commissioner chose to ride roughshod over the orders period by the High Court and the Supreme Court and in the garb of the demarcation sliced away a portion of the property which had been permanently settled on the petitioners. The order passed by him is utterly without jurisdiction and stands self-condemned. 6.???????? This writ petition is, therefore, accepted and the impugned order declared to have been passed without lawful authority. The respondents were instrumental in procuring such an illegal order from the Deputy Settlement Commissioner and further before this Court, as well, their conduct was contumacious. The petitioners have been forced, to come to this Court, for removal of the impugned order The respondents are, therefore, liable to be burdoned with costs, which are fixed at Rs.2,000 and shall be deposited by them to Court within one month.