1973 PLP 385 (SCMR)

The dispute in this case concerns property No. 859/63, situate in Block No. 6 of Chichawatni, in the Sahiwal District. Appellant No. 1, Muhammad Shafi, a local, was in possession of the same as a tenant since before Independence. He continued in possession, and on the 27th of July 1959, he applied for the transfer of this evacuee property in form LH. By an order made by the Deputy Settlement Commissioner on 11‑11‑1959 the property was transferred to him. However, on 12‑12‑59, Muhammad Shafi himself informed the Settlement Authorities that he owned a residential house of his own, with the result that the transfer order made in his favour was cancelled by the learned Deputy Settlement Commissioner on the 23rd of July 1960, in the light of the instructions which were then in force in respect of the transfer of houses to local occupants. Thereafter, the property was placed in the earmarking list, and was drawn in favour of respondent No. 1, Ibrahim. The new transferee made an application for the ejectment of the occupants, mainly on the ground that although Muhammad Shafi was an old tenant, yet be had handed over the possession of his house to his brother Muhammad Mobin (appellant No. 2). This application was accepted by the Deputy Settlement Commis sioner on the 14th of December 1960, and Muhammad Mobin was ordered to be ejected. Aggrieved by this order both the brothers filed an appeal which was disposed of by the learned Additional Settlement Commissioner, Multan, by his order dated the 13th of April 1961. This Officer formulated two questions for decision. (i) Whether the Settlement Authorities were competent to eject the occupant of building Nos. 859‑863 before the expiry of three years ; and (ii) Whether the entire building in question was a residential house or whether the rooms on the ground floor had to be treated as a shop. As regards the first point, he observed that Muhammad Shafi and Muhammad Mobin had come to an agreement with the respon dent Ibrahim to the effect that they would vacate the premises after the expiry of one year. As a result of this compromise the respondent's application for ejectment of the appellants was dismissed. On the second question, the learned Additional Settlement Commissioner directed the Deputy Settlement Commissioner to make an enquiry about the nature of the build ing, and in case it was found to be a residential house, the evaluation price should be increased to the extent of 50%. In this order the transfer of the property in favour of the respondent Ibrahim was maintained, and that transfer was accepted by the present appellants by agreeing to continue as his tenants for a period of one year, and thereafter, to vacate the same. It would appear that to all intents and purposes, the claim of the appellants to the transfer of the property came to an end with the compro mise which they had entered into with the respondent. They never filed any appeal or revision against this order for the purpose of ascertaining their entitlement to the transfer of the property as against the respondent. However, in remand proceedings the learned Deputy Settle ment Commissioner found that the property in question was a residential house and not a shop. The appellants filed an appeal against this order, and contended that the property should be treated as a shop and therefore disposed of by open public auction. When the appeal came up for hearing before the learned Additional Settlement Commissioner, the appellant Muhammad Mobin made an application that although he was previously con tending that the property was a shop and should be put to auction, yet now he prayed for the transfer of the property to him as a house on the basis of Circular letter No. 3033‑P(49) Reh./61 issued by the Chief Settlement Commissioner, Pakistan on the 9th of August 1961, in which the previous instructions regarding transfer of houses to locals were withdrawn, and the legal position, as obtaining under the various paragraphs of the schedule to the Displaced Persons (Compensation and Rehabilita tion) Act, 1958, was restored. By an order made on 11‑12‑1961, the learned Additional Settlement Commissioner accepted this prayer and remanded the case once again to the Deputy Settle ment Commissioner for fresh decision in the light of the Chief Settlement Commissioner's circular quoted above. The case was then considered by the Deputy Settlement Commissioner on the 26th of January 1962. The transfer in favour of respondent Ibrahim was cancelled, and it was ordered that the property should be transferred to appellant Muhammad Shafi. On respondent's appeal, the case was remanded once again by the Additional Settlement Commissioner by his order dated the 14th of March 1962. On remand, the matter was again decided by the learned Deputy Settlement Commissioner, by his order dated 3‑8‑62, in favour of appellant Muhammad Shafi. Thereupon, the respondent Ibrahim filed an appeal which was, however, dismissed by the learned Additional Settlement Commissioner by his order dated the 12th of September 1962. His revision petition was similarly dismissed by the learned Settlement Commissioner by his order dated the 19th of October 1962. It was in these circumstances that the respondent invoked the writ jurisdiction of the High Court. His petition was accepted by a learned Single Judge by his order dated the 14th of June 1966, mainly on the ground that the two appellants had clearly accepted the order of transfer made in favour of the respondent under the earmarking scheme, as they had agreed to remain his tenants for a period of one year and they had not filed any appeal or revision, against the order of transfer. The learned judge held that in these circumstances the Settlement Authorities could not destroy the validity and finality of the order of transfer which had already been made in favour of the respondent, and that the circular letter of the Chief Settlement Commissioner dated the 9th of August 1961, could not have the effect of re‑opening the whole matter. This view of the learned Single Judge has been upheld by the Letters Patent Bench. Leave to appeal was granted in this case on 4‑5‑1967 to examine the following contentions; (i) that the appellants did not in the first instance file a settle ment form as under the instructions of the Chief Settlement Commissioner they were not eligible for transfer ; (ii) that the appellants had all along been contesting the transfer in favour of respondent No. 1, and the High Court was in error in dismissing the writ petition on the ground that Mo they had by omitting to file an appeal or revision, allowed the order of transfer in favour of the respondent to become final. After hearing the learned counsel for the appellants, and perusing the various orders made in this case by the Settlement Authorities from time to time, we are of the view that this appeal must fail. It is true that at one time the Chief Settlement Com missioner had issued instructions that locals owning a residential house in their possession, but these instructions were not in accordance with the provisions contained in the schedule to the Act. If, therefore, the appellants wanted to assert their right and entitlement to the transfer of the property on the basis of the possession of Muhammad Shaft, it was for them to pursue their legal remedies, but instead of doing so they did not file any appeal or revision against the order of transfer made in favour of respondent Muhammad Ibrahim. Before the Additional Settlement Commissioner, they entered into a compromise with the respondent, thereby accepting the transfer in his favour and agreeing to remain his tenants for a period of one year, and thereafter to vacate the premises. In the proceedings which ensued after the appellate order of the learned Additional Settlement Commissioner on 13‑4‑1961, the question of the validity of the transfer of the property in favour of respondent Muhammad Ibrahim was in fact not at all in issue. The Settlement Authorities therefore acted without jurisdiction in re‑opening the matter of the transfer of the property in favour of the respondent. The entitlement of the appellants having been finally negatived by their own action before the Additional Settlement Commissioner, the appellants had no locus standi whatsoever to agitate for the cancellation of the transfer pre viously made in favour of the respondent. The instructions issued by the Chief Settlement Commissioner on 9‑8‑1961 did not create any new rights in favour of the appellants. On this view of the matter, the learned Single Judge in the High Court was right in granting relief to the respondent Ibrahim, and the Division Bench was similarly right in dismissing the appeal filed by the appellants under clause 10 of the Letters Patent. The present appeal fails and is hereby dismissed. However, we leave the parties to bear their own costs. Appeal dismissed.