1969 PLP 53 (SCMR)

The petitioner filed an N. C. H. Form for the transfer of only the 1/4th portion in his occupation. Mehar Din, who was a local, filed an L. H. Form for the transfer of another 1/4th portion in his occupation. Ghulam Haider, Bashir Ahmad and Muhammad Sharif filed an N. C. H. Form for the transfer of 1/2 portion in their possession. Thereafter, during the course of the proceedings before the Deputy Settlement Commissioner all the occupants of the house made statements on the 24th January 1960, to the effect that they should be given the portions in their respective possession. On the same day they also made a joint statement that they bad agreed to have the transfer of this house in their favour jointly, but would have no objection if the portions were transferred in their respective names. These statements were recorded and signed by all the occupants of the house including the petitioner. Upon this agreement an order was made on the 27th January 1960; transferring respective portions to them on the basis of their joint statement. In the middle of 1961, however, some dispute arose between Mehar Din and the present petitioner about the use of the roof of the said premises and this resulted in an application to the Deputy Settlement Commissioner for the demarcation of their respective shares. This application was rejected on the ground that since they had agreed to obtain the property on the basis of their joint statement according to their respective possessions, they should make their own demarcation amicably. Against this order Mehar Din went in appeal to the Additional Settlement Commissioner but this appeal was rejected on the 28th August 1961, with the remark that the property had been transferred jointly on the basis of an agreement between the parties and it was for the parties to demarcate their portions themselves. But the Additional Settlement Commissioner also directed that an Inspector may be deputed to assist the parties in making this amicable demarcation. Subsequently, on the 24th September 1961, the present petitioner filed another time‑barred appeal in the Court of the Additional Settlement Commissioner against the order of the Deputy Settlement Commissioner, dated the 27th January 1960, by which he had transferred the property in favour of the parties according to their own agreement. An appeal was also filed by the present petitioner against the order of the Additional Settlement Commissioner deputing an Inspector to assist in the demarcation. Both these appeals came up for hearing before the Additional Settlement Commissioner who on the 16th August 1962, set aside the consent order and transferred the 1/4th granted to Mehar Din also to the present petitioner. From this order Mehar Din went up in revision to the Settlement Commissioner who felt that the transfer of the house to Mehar Din was so grossly unjust that he would be justified in assuming his suo motu power of revision to confirm the order of the Additional Settlement and Rehabilitation Commissioner transferring the entire half portion to the petitioner Nazir Ahmad. From this order Mehar Din came to the High Court, under Article 98 of the Constitution and the High Court, after an elaborate consideration of all the points raised, came to the conclusion that the petitioner was estopped from asking for the transfer of more than the 1/4th portion in his possession on the ground that he had filed his N. C. H. Form only for this 1/4th portion and had, in his individual as well as joint statement before the Deputy Settlement Commissioner, accepted the said 1/4th portion, obtained necessary documents for the portion alone and had not challenged that order of the Deputy Settlement Commissioner until the time for filing the appeal had expired by nearly one year and 8 months. In the circumstances the order of the Settlement Commissioner was set aside, the order of the Deputy Settlement Commissioner made on the 27th January 1960, on the consent of the parties, was restored and the Settlement authorities were directed to issue necessary documents of transfer in favour of the respondent Mehar Din in accordance with law. The petitioner Nazir Alunad now seeks special leave to appeal. He admits that he did give his consent before the Deputy Settlement Commissioner for accepting only 1/4th portion but he urges that such consent was against law as the 1/2 portion of the property in dispute being held to be indivisible, could not have been transferred to a local at the relevant time. We are unable to accept this contention, for, the report of the Rehabilitation Inspector on the basis of which the Deputy Settlement Commissioner made his order of the 27th January 1960, clearly showed that the house had already been divided into three portions. If that be so, then each portion formed an independent house and if the portion in possession of Mehar Din was valued at less than Rs. 10,

000. It could have been lawfully transferred to him. There was no illegality committed in making this transfer by the consent of the others including the petitioner. The next contention is that the Letters Patent Bench of the High Court should not have gone into the merits of the case but this contention is clearly untenable because the entire case is open in a Letters Patent Appeal and there is no bar to the Letters Patent Bench deciding the case on merits. Having heard the learned counsel appearing in support of the petition and perused the judgments of the Courts below, we have no hesitation also in coming to the conclusion that the order passed by the High Court was an eminently just order. No interference is, in the circumstances, called for. This petition, is, accordingly, dismissed. Leave refused.