1994SCMR1988 (PLP)

SAAR SAOOD JAN, J.‑‑‑Mst. Hussain Bibi and her sons, now represented by the petitioners, were in possession of an evacuee house, situate in Gawalmandi, Lahore. They were claimants. When the settlement operation started they submitted, a C.H form for the transfer of the house. By an order dated 19‑3‑1960 a Deputy Settlement Commissioner transferred the house to them. It was described as SI. 69.S.10.

2. One Muhammad Rafiq, a non‑claimant, obtained transfer of two houses bearing Nos. SI.69.S.37 and SI.68.S.39. Both houses were also situate in Gawalmandi, Lahore. Subsequently, he surrendered house bearing No.SI.68.S.39 in favour of respondent No.

1. Consequent upon the surrender a transfer deed was issued to respondent No. 1 on 31‑12‑1973.

3. On 26‑1‑1974 Mst. Hussain Bibi and her sons moved an application before the Deputy Settlement Commissioner requesting that the house transferred to them should be demarcated and its price assessed. While this application was pending Muhammad Rafiq too filed an application before the Deputy Settlement Commissioner for correction of the street number in which the house transferred to him was situate.

4. Both these applications were taken up by a Deputy Settlement Commissioner for consideration. Before he could dispose them of, respondent No. 1 filed a civil suit, seeking a permanent injunction against the Deputy Settlement Commissioner from enquiring into the matter of allotment. He did not implead the petitioners or their predecessors‑in -interest as parties to the suit. The suit was decreed ex parte by a Civil Court on 27‑11‑1975.

5. Despite the ex parte decree passed by the Civil Court the Deputy Settlement Commissioner continued to enquire into the matter and in that connection he also visited the spot: By his order dated 25‑5‑1976, he found that properties bearing No.SI.69.S.10 and SI.69.S.37 did not exist in the record of the Lahore Municipal Corporation and of the Excise and Taxation Department; the house in the occupation of \Mst. Hussain Bibi and her sons bore No. SI.68.39; the house transferred to respondent No. 1 also bore the same number; both houses were independent and self‑contained units, it separate from each other, without any common gate or stairs, and further, different materials had been used in their construction. He also observed that Muhammad Rafiq had practised fraud upon the Settlement Department in obtaining transfer of two houses. Consequent upon his report a transfer order was issued in favour of the petitioners on 11‑2‑1977 in respect of House No.SI.68.S.39.

6. On 27‑11‑1982 respondent No. 1 brought a suit seeking a declaration inter alia to the effect that the order of the Deputy Settlement Commissioner dated 25‑5‑1976 and all subsequent orders based thereon were without jurisdiction, void and illegal. He alleged that after the ex parte decree had been passed by a Civil Court on 27‑11‑1975 the Deputy Settlement Commissioner was not competent to proceed further with the enquiry. He further alleged in his plaint: "That in spite of this decree the defendant No. 1 reopened the matter of transfer of suit house and has sliced away a portion of it which was occupied by Muhammad Ashiq and Mst. Hussain Bibi predecessors‑in‑interest of defendants Nos. 2 to 10 as plaintiff's tenants vide his impugned order dated 25‑5‑1976. This order has been passed in flagrant disregard and in violation of the learned Civil Judge decree dated 27‑11‑1975. The defendant has through this order partitioned the house of the plaintiff into two portions and has transferred the other portion to defendants and above said Muhammad Ashiq and Mst. Hussain Bibi. The order has been passed just to show undue favour to the defendant No. 2 and above said Muhammad Ashiq with whom the defendant No. 1 had got close contacts. The Deputy Settlement Commissioner is still proceeding with subsequent matters to issue documents to, defendants Nos. 2 to 10." The suit was resisted by the petitioners. Learned trial Court decreed the suit and the petitioners' appeal before the Additional District Judge and revision petition before the High Court failed. They now seek leave to appeal from this Court.

7. In support of this petition, it is inter alia contended that as claimants they had the right to the transfer of the house under their occupation. The mere fact that the house was wrongly described as bearing No. SI.69.S.10 in their CH form or in the order of their allotment dated 19‑3‑1960 was immaterial, for whatever its number they could not be deprived of their right to transfer of the house under their occupation; it was in fact the duty of the Settlement Department itself to make the necessary correction if the house under their occupation had been incorrectly described. On the other hand, respondent No. 1 drew his right to the house from Muhammad Rafiq who was admittedly a non‑claimant. Consequently, so far as the house under their occupation was concerned, respondent No. 1 could not claim it in preference to them. By his order dated 25‑5‑1976 the Deputy Settlement Commissioner did exactly what was required of the Department to do. The ex parte decree was not binding upon them as they were not impleaded in the suit. It was thus not a fit when the discretionary relief of declaration should have been granted to the respondent No. 1.

8. The contentions raised in support of this petition need examination. Leave to appeal is granted.

9. Status quo with regard to possession to be maintained. A.A./S‑838/S Leave granted.