1988 PLP 12 (MLD)

Date of hearing: 22nd February 1988. The petitioner in this petition claims to be in possession of tenement No.7, Regal Mansion, Abdullah Haroon Road, Karachi‑3 alongwith his mother and other family members as the same was allotted to his father in 1947.

2. The property in question bears Evacuee Property No.VB‑11‑1/1‑PB 2/49, Regal Mansion, Karachi. The transfer of this property was ordered by the learned Additional Settlement Commissioner (Judicial), Karachi vide his order dated 13‑2‑1960 in Appeals No.17/1900 and 18/60. Copy of this order has been produced by the petitioner at page 35 of the documents attached to the petition. It may be pointed, that the present petitioner was not a party to the said proceedings. The relevant portion of the order is reproduced as under:‑ "I have already held that it is a building, consisting of 11 flats and shops and each flat is considered as a self‑contained independent residential premises and the shops in the ground floor as commercial premises, hence the order of the lower court is set aside. The appellants and the respondent are entitled for the transfer of the tenements in their occupations, the rest of the tenements and shops may be disposed of under the Settlement Scheme, if no other occupant is considered to be entitled for the same. The appeals are, therefore, allowed."

3. On 13‑1‑1961 one Mst. Syeda Naim Hussain Ahmed/widow of Syed Hussain Ahmed is alleged to have moved an application Form NCH for transfer of the house in question. A simple photostat copy of the receipt has been produced by the petitioner as Annexure `A'. It may also be pointed that this Mst.Syeda Naim Hussain Ahmed is respondent No.9 in this petition. Copy of another application by Mst.Syeda Naim Hussain Ahmed has been produced at page 31 in which she has described herself as wife of Captain Ali Naim. This application is with regard to agreement of association in respect of claims of Khawaja Syed Akhtar Hussain. This Mst.Syeda Naim is sister of the petitioner. On this application there is a noting that "the applicant's N.V.H. form has been accepted and the transfer of the tenement was kept pending till the decision of a revision application in respect of the entire building.

4. The petition does not disclose as to what happened afterward, but it was stated by Mr. SA.Hasnain learned counsel for the petitioner during the course of arguments that the tenement in question has been transferred to some other person and P.T.D. was issued in the name of Transferee, who is Respondent No.1 in 1961 or 1962. Respondent No.1 has filed a Constitution Petition No.136 of 1982 in this Court against the Settlement Commissioner and others in which the petitioner has been allowed to be joined as Intervenor. The petitioner is afraid that if the said petition is dismissed by the Court for non‑prosecution by the respondent No.1, he would be left without a remedy in respect of the transfer of the house in question, the transfer of which was obtained by fraud by Respondent No.1.

5. It appears that the full facts are not disclosed by the petitioner in the petition. The petition does not show as to how and under what circumstances the respondent No.1 obtained the transfer order by way of fraud. The question whether the fraud was committed or not by the Respondent No.1 is a question of fact. Further more as pointed above, as per order of Additional Settlement Commissioner the flats were to be disposed of to other occupants unless they were considered disentitled. All the official acts are presumed to have been correctly done unless otherwise proved. The fact that in pursuance of this order, the flat in question was transferred to Respondent No.1 would raise the presumption that either the concerned authorities found the Respondent No.1 to be in occupation of the premises in dispute or they found the petitioner or his other family members to be disentitled to the transfer of the tenement in question. The relevant order concerning the transfer of the house in question to Respondent No.1 has not been produced by the petitioner. However, the question as to who was in occupation is again a question of fact. This Court in exercise of the Writ Jurisdiction cannot embark upon the investigation of such question of fact.

6. Even from his own showing the petitioner at no stage had agitated before the authorities for the transfer of the tenement/house in question. Mst. Syeda Naim Hussain, who is alleged to have moved the application for transfer has been joined as Respondent No.9. In other words she did not appear to be willing to join the petitioner in moving this petition.

7. The petitioner in this petition, though not so specifically prayed by him, in fact prays for cancellation of P.T.D. issued in favour of Respondent No.1 in 1961‑

62. It is submitted by Mr.S.A.Husnain, learned counsel appearing for the petitioner that the petition is maintainable in spite of the laches. In support he has relied upon the case of Ghulam Ahmed and others v. Ausaf Ali Khan and others 1987 S C M R

613. In the reported case the appellant's predecessor had applied for transfer of house on the basis of admitted possession, but no orders were passed on that application by the Settlement Authorities and the house was erroneously or fraudulently transferred to another person, who had no desire to take the same and after death of predecessor appellants had been making enquiries, but no reply was given to them and instead the house was unlawfully transferred to the respondent. The petition of the appellants was dismissed by the High Court of Peshawar on the ground of laches and on the ground that the Settlement Authorities had become functus officio after issuance of P.T.D. but their Lordships of Hon'ble Supreme Court held that "entitlement which had accrued to appellants and their predecessor‑in‑interest for transfer of house under Settlement law, could not be defeated in this manner". 8 In the instant case the facts are obviously distinguishable from the reported case. Neither the petitioner nor his predecessor‑in‑interest had moved any application for the transfer of the house. Mst.Syeda Naim Hussain, who had moved application for transfer, does not appear to be aggrieved by this transfer. The question of entitlement of possession is not admitted but apparently is under dispute, which cannot be decided in writ petition. The laches extending over a period of nearly 26 years remain unexplained. For the aforesaid reasons, in my opinion, this petition is not maintainable and is, therefore, summarily dismissed. However, this order will not prejudice the case or rights of the petitioner, if any. He may agitate as Intervener in Constitutional Petition No.136 of 1982. A.A./M‑482/K Petition dismissed.