Settlement Scheme No. VII

Said Constitutional petition which was fixed for regular hearing after lapse of seven years from its admission, was adjourned without any material progress and was again fixed after seven years but was dismissed for non-prosecution

Petitioners moved for its restoration alongwith an application for condonation of delay, notice whereof was given to respondents by maintaining status quo

Petition for restoration of said Constitutional petition alongwith application for condonation of delay were fixed for hearing after five years, but were dismissed for non-prosecution without issuing fresh notice to the legal heirs of petitioners

Proper opportunity of hearing, in circumstances, was not afforded to petitioners and they were condemned unheard which amounted to miscarriage of justice

Controversy in the case involved valuable rights of parties which should have been decided on merits instead of on technicalities especially when petitioners had been pursuing their case for the last more than two decades

Petition for leave to appeal was converted into appeal and was accepted

Applications filed for restoration of Constitutional petition and condonation of delay and their applications would be treated as pending before High Court and would be decided in accordance with law on merits after issuance of fresh notices and granting proper opportunity of hearing to parties at the earliest.

­Possession of the, plaintiff of the suit property on the target date i.e. 1-1-1961 as contemplated by Settlement Scheme No.VII

Both the Courts had relied on the entries of Jamabandi and view formed by them was consistent with the documentary evidence which supported the case of the plaintiff as at the relevant time i.e. 1-1-1961 he was in possession of the property and had become owner of the said property by operation of law under Settlement Scheme No.VII

Objection as to the lack of jurisdiction of the Civil Court and the maintainability of the suit had also been duly attended to and answered by the Courts

Contention of the defendants about the non-consideration of the evidence led by them thus had no substance in view of the fact that on the material date the plaintiff was found in possession of the suit property

Possession of the property at any subsequent period was of no avail and report of the spot inspection lost its significance in the context of real controversy viz. the possession on the target date

No illegality having been committed by the Courts in arriving at their concurrent view in the matter, High Court declined interference in circumstances.

Defendant, however, denied relationship of landlord and tenant and set up his own claim of ownership over the house in question

Leave to appeal to Supreme Court was granted to consider whether question of legality of transfer of house in question, by Settlement Department in favour of petitioner was not in issue before Trial Court or First Appellate Court, whether First Appellate Court was not competent to go behind the order of allotment whereby said house had been transferred in petitioner's name; whether suit of petitioner was dismissed by Trial Court purely on the ground of want of notice to respondent and whether First Appellate Court had gone into questions which were not in issue between the parties in suit.

Leave to appeal was granted to consider, whether Settlement Authority failed to consider that building site in question was validly transferred as industry under relevant law when it had already been constructed upon and occupied by petitioners before 1955 and at their request same was omitted from auction list and specially when their applications/forms for its transfer were pending decision; whether High Court misread and failed to take notice of legal point involved in the case; and whether Deputy Settlement Commissioner to whom case was remanded for decision on merits failed to carry out independent inquiry and whether he was justified to ask for guidance from Member, Board of Revenue, who had no say in such matter in law and whether such opinion should have formed basis for judicial determination of dispute.

Petitioner had also produced an order by which a house in the village had been transferred to his father but he had led no evidence to show that the house transferred to his father was the same as the house in question

No basis for interference with concurrent findings of Courts below were pointed out

Leave to appeal was refused in circumstances.

According to law in vogue at relevant time no house of the value of Rs.10,000 or more, in rural area could be transferred to a local

Transfer price of house in question, being more .than Rs.10,000, respondent was ineligible to apply for the house in question

Rejection of his L.H. Form was therefore inevitable and even if such Form was disposed of in contravention of specific procedure, that would not be of much consequence.

Leave to appeal was refused in circumstances.

Possession over property in question, if proved whether ripened into ownership by operation of law i.e., Settlement Scheme No.VII

Statements made by plaintiff and his witnesses, coupled with the rent note in favour of plaintiff, successfully proved that plaintiff was in possession of house in question, at all points of time, inclusive of the target date, i.e. 1-1-1961, either physically or through his tenants

Plaintiffs possession over property in question, car the basis of evidence on record, could be traced back to 1947-48, and he had been in possession of same ever since

Defendant's witnesses had admitted that house in question, had been in possession of police officials

Such statement when read alongwith the rent note scribed by various police officials who had been in possession of same as tenants of plaintiff would amply prove plaintiff's continuous possession over the house in question, which entitled him to claim ownership thereof.

If property in question was taken to be urban, target date for possession under Displaced Persons (Compensation and Rehabilitation) Act, 1958 was 20th December, 1958; if however property was taken to be rural than target date under Settlement Scheme No. VII was 1st of January 1961

Appellant in either case would not be entitled to transfer of property in question as his allotment was later than aforesaid two target dates.

Settlement Scheme No. VII Transfer of house in question in favour of respondent was challenged by petitioner on ground that petitioner was in possession of house and that respondent transferee had never been in possession of that house and as such same could not have been transferred to him

Parties agreed that case required decision, as to which party was in possession of the house at relevant date i.e. 1-1-1961 as prescribed under Scheme and whoever was found in possession on said date would be entitled to transfer thereof

With consent of parties case was remanded to Notified Officer for ascertaining that fact and pass orders on basis of findings in that respect.

Leave to appeal granted to consider controversy with regard to the possession involved in the case particularly in the light of report of Tehsildar.

Leave to appeal granted to consider question that Haveli in dispute could not have been included in consolidation pool and that in any case it could not have been given to any party other than petitioners because it being originally an evacuee property, was in possession of petitioners and that being so, it stood automatically transferred to them under Settlement Scheme No. VII without need for formal order in that behalf, nor there was any need for making any payment by petitioners.

Record not showing that property was evacuee and for that reason it stood transferred to petitioners on account of undisputed possession

No reference could be made to Custodian Authorities unless there was prima facie case based on reasonable material

Leave to appeal refused in circumstances.

Contention that house in question was constructed in such a manner that it served purposes subservient to agriculture therefore, it stood transferred to the petitioner as a part of agricultural land; and its independent transfer under Settlement Scheme NO.Vli could not be sustained as held by the High Court in the impugned judgment

No factual basis to support the contention were available

High Court had observed that there was no finding or order to support the statement that house in possession of respondent was subservient to agriculture

Leave to appeal was refused.

Portion in possession of `A' was however, not allotted to him but was ultimately allotted to 'M.S.' because he was found to be its allottee since 1952

Legality of order

Record showed three reasons which were made basis of transfer in favour of 'M.S.' viz. (i) transfer order in favour of `M' had not the effect of transferring any portion of property to `A' or to any one else other than `M'; (ii) when matter of transfer of remaining portion was taken up `M.S.'was found to be its original allottee; and (iii) close relationship was found to exist between 'M.S.' and `A'

Position of `A' was thus held to be as member of the family of `M.S.'

Leave to appeal was refused as any of the above facts could not be proved to be either erroneous or faulty.

High Court in Constitutional jurisdiction declared orders of such allotment to be without lawful authority and of no legal effect and remanded the case to Authority

No case for interference with such order of High Court was made out

Question for consideration was whether the properties transferred to the petitioners were part of the establishment premises which already stood sold to the latter

That being a question of fact, High Court had noticed that none of the Settlement Authorities had taken into account the various documents which the establishment wanted to produce in support of its claim

High Court's reference to Settlement Authority for a fresh decision was thus fully justified

Leave to appeal refused.

Leave to appeal refused.

Petitioners-defendants claiming right over land in question under Settlement Scheme VII but unable to show that they were in possession of land in question on date of enforcement of Scheme or that as a matter of fact they were recognised as transferees of land under said Scheme

Courts below arriving at finding of fact that petitioners were not in possession of land since before Kharif, 1968, this being position, petitioners, held, could not claim any right under Settlement Scheme No. VII.

Appellant becoming a marginal witness to a document by which relinquishment, of possession of property was acknowledged by executant of document

Contention that appellant by putting his thumb-impression on document had accepted title of respondent against himself, held, not acceptable

Appellant only became a witness of relinquishrnent by another person and made no overture in relation to his own possession qua property, said document could have on adverse effect at all against appellant.

Evacuee rural property was allotted only to persons who were in occupation of such property on or before 1st January, 1961 under Settlement Scheme No. VII

Respondents being in possession of portion of Ihata 'in dispute prior to stipulated date, were entitled to allotment of such portion

Allotment of entire Ihata in 1968 in favour of predecessor-in-interest of petitioner who was only in possession of other portion of such Ihata before stipulated date, held, was illegal and unjustified and such illegal allotment could not confer upon such petitioner, right of ownership of entire Ihata because respondents had already become owners of respective portion in their possession on stipulated date

Petitioner, however, could claim ownership of Ihata only to extent of portion which was in occupation of his predecessor-in-interest.

Word 'house' as defined in Act includes a house of value of Rs.10,000 or more in a rural area and such property could be disposed of under Scheme No. VII

Fact that disputed house was not situated in urban area, held, would not by itself be conclusive as to applicability of provisions of Act.

Occupant of rural evacuee property of value of Rs.10,000 or more in his own right to be the only person entitled to transfer of such property

Occupation of property should however, be in his own right and not as a tenant

Appellant being allottee of shop and having rented out same to respondent, latter would not be an occupant in his own right and would be occupying it under former as a tenant.

Leave to appeal granted to examine whether judgment of District Judge, reversing judgment of Trial Court to the effect that the appellant was owner of suit property, was not based on misreading and ignoring vital evidence with regard to identity and transfer of property.

Civil Court, held, had no jurisdiction as Settlement Authorities had exclusive jurisdiction in such cases.

Allotment of evacuee property-Possession, proof of-Receipts of amounts incurred by petitioner for construction of shop in 1958, payment of tax pertaining to same in 1959-60 and 1960-61, held, would establish possession of petitioner over shop in dispute, since before statutory, period of 1-7-1961.

Documentary evidence on record showing that evacuee industrial concerns were purchased through auction by father of respondent not singly but jointly with other auction-purchasers as their attorney and payment of such properties admittedly was made by all jointly

Father of respondent being attorney of others himself acknowledged that he took over possession of properties for himself and on behalf of others—After death of such attorney wife and mother of respondent wrote to Chief Settlement Commissioner that disputed properties were purchased by her late husband jointly with other auction-purchasers

Documents on contention that properties in dispute were purchased by his father singly, was totally false and findings of Settlement Commissioner that father of respondent was sole auction purchaser was based on wrong facts

Finding of Settlement Commissioner, held, suffered non-reading of relevant document and facts- on records f N. 1571

Plaintiffs being confirmed allottees of land and allotment of defendants under Scheme No. VII being misconceived and unauthorized, High Court upheld findings of Trial Court and First Appellate Court.

Suit instituted before enforcement of substituted cl. (v) of S.7, Court Fees Act by Punjab Finance Act, 1973 and pre-emption decree passed after substitution thereof

Appeals in .such decree to be valued according to substituted cl. (v) and accompanied by court-fee at fifteen times net profit of land

Vendee failing to pay fee at this rate at his first and second appeals against decree passed in a suit valued at ten .times land revenue of land in dispute as existing before substituted cl. (v)

First and second appeals filed by vendee, held, could not be adjudicated on merits because of their incompetency on account of deficient court-fee

Vendee not complying with direction of Taxing Officer to pay requisite court-fee within period of limitation prescribed for filing second appeal and. not deserving indulgence due to their negligence and contumacy

Appeal dismissed.

Evidence on record showed that agreement between original transferee and petitioner whereby original transferee had surrendered right in favour of petitioner had not been registered with Settlement Authorities

Petitioner also failed to prove his possession over property to establish his entitlement -for transfer of same in his favour

Petitioner otherwise admittedly being non-claimant was not entitled to associate with transferee

On basis of such evidence petitioner was found disentitled for transfer of disputed property

High Court in exercise of constitutional jurisdiction refused to interfere with findings of fact, justified on record.

Applicants' own witness stated that possession of property in dispute was delivered to respondent by father of applicant

Document alleged to be letter of allotment of property was also in name of father of applicant-Concurrent findings of Courts below that applicant failed to establish his possession and entitlement to property, were based on proper appreciation of evidence on record

Such concurrent findings, held, could not be disturbed in revision

High Court refused to interfere with judgment and decree passed by Courts below in circumstances.

Leave to appeal granted to examine whether High Court had justifiably refused relief to petitioner or his failure to implead in constitutional petition mother of respondent.

Plots on rural sites in occupation of persons since before 1961 stood automatically transferred in such persons, favour by operation of law and law made no distinction between a local and a displaced persons in regard to such automatic transfer.

Scheme does not debar a minor from claiming entitlement to transfer on basis of his occupation of a plot on rural site since before 1961.

Allotment of such Khasra number in favour of petitioner was held to be void ab initio by High Court in constitutional jurisdiction

Finding of High Court that property was not available for transfer to petitioner as agricultural land, was, therefore, not open to exception

Leave to appeal refused.

Leave to appeal refused on ground that Scheme No.VII governed the matter and same related to transfer of rural buildings and not to open plots

Transfer under Settlement Scheme No. VII envisaged rural building inclusive of land appurtenant to it and to confine respondents solely to Kotha built up by their ancestors and to ignore their occupation and possession would be arbitrary view.

Enforcement of Scheme in Tribal areas-All transfers made in Tribal areas during years 1963 to 1973, held, were validated vide Regulation No. 1 of 1979-Transfers made, therefore, stood validated and became final and past and closed.

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Sched. and Settlement Scheme No.VII, para. 3-Transfer of Evacuee Property

Leave to appeal

Granted to consider question whether a person in actual physical occupation of property has superior entitlement to transfer over its allottee in view of terms of para. 3 of Scheme.

Art. 9 read with Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 18 & 19-Settlement Scheme No. VII-Revision-Petitioner's highest bid at a public auction of land was accepted by A.C./Collector and confirmed by Deputy Commissioner as Additional Settlement Commissioner (Lands)-Respondents filing appeal before Commissioner who finding that no appeal lay before him treating same as representation and holding that due publicity to auction was not given, allowed respondents to deposit higher sum of money as a price of land-In a constitutional petition against the order it was held that order of Deputy Commissioner as Additional Settlement Commissioner was not open to appeal-Held, in absence of Revisional power vesting in him, Additional Settlement Commissioner had no jurisdiction to reopen decided cases and such interference was patently unjust and unlawful.

Petitioner contending that decision relied upon by High Court being not apposite but his case similar to another decided case by other High Court

Leave to appeal granted in view of prima facie force in contention-Petitioner if still in possession of property, ordered not to be disposed

Parties given liberty to add further documents for appeal.

Settlement Scheme No. VII Leave to appeal granted to consider question whether original allottee or tenant in actual possession of shop was entitled to transfer under Settlement Scheme No. VII.

Resumption of property-Contention that order of Settlement Commissioner resuming property in dispute, on account of nonpayment of transfer price being void ab initio inasmuch as same passed without notice to petitioner, and as such subsequent orders passed in favour of petitioner or against him non-existent in eye of law-Petitioner failing to deposit transfer price of disputed land even when given last chance to do same resulting in transfer of land to respondent already depositing transfer price impugned order, held, attained finality and needs no interference.

Read with Settlement Scheme No. VII-Allotment of rural immovable property-Order of allotment of ihata passed by Assistant Settlement Commissioner and confirmed by Deputy Settlement Commissioner challenged in revision before Settlement Commissioner Order of Settlement Commissioner 'accepting revision petition and remanding case to Assistant Settlement Commissioner for thorough enquiry into matter in order to establish whether allottee really in possession of ihata before 1-1-1961-Held, ex facie without jurisdiction and ultra vires of Settlement Scheme No. V11.

Transfer of evacuee property-Contention that respondents having not been successful in earlier round of litigation in appeal and revision they could not reopen case through proceedings under Ss. 10 & 11 of Act XXV1I1 of 1958

Whether petitioner could legitimately challenge correctness of findings of High Court, viz. land in dispute was ghar mumkin abadi situated next to residential and commercial area within municipal limits-Nat denied-High Court having reached such a finding of fact on correct appreciation of record, no exception could be taken to same -Initial order of allotment of property as agricultural land having been rendered contrary to law, transfer of property in respondents' favour under Settlement Scheme No. VII, held, not barred.

S. 2(4), Sched. read with Settlement Scheme No. VII, para. 5 and Constitution of Pakistan -(1973), Art. 199-Jurisdiction-Contention that Assistant Settlement Commissioner's order holding existence of two houses on property in dispute could only have been challenged under para. 5 of Settlement Scheme No. VII in an appeal before Deputy Settlement Commissioner hence revision filed by respondents against impugned order before Settlement Commissioner not competent and his order without jurisdiction-Petitioner not having raised such objection before Settlement Commissioner nor before High Court, such objection even if raised, could not justifiably have been entertained by High Court.-[Jurisdiction].

S. 2 read with Sebed., Part II and Settlement Scheme No. VII Order of Settlement Commissioner holding both shops as constituting one unit not shown to be erroneous-Order of transfer not passed, without jurisdiction-Order even if shown to be erroneous, property in dispute having been transferred in favour of respondent, nothing held, stood available for transfer in favour of petitioner under Settlement Scheme No. VII-Constitution of Pakistan (1973), Art. 185 (3).

Chap. V, para. 4 read with Instructions contained in Settlement Scheme VII, Appendix I, para. 6 (ii)-Disposal -of rural building sites-Petitioners shown in Survey Register to be in possession of plot since before 1961, Settlement Authority, held, could not transfer such plot to a displaced person from Jammu & Kashmir and such plot deemed to have been transferred to occupant free of charge.

Chap. V, para. 4 read with Constitution of Pakistan (1973), Art. 185(3)-Leave to appeal to Supreme Court-Cleavage of opinion existing in High Court about date on which rural buildings stood transferred to occupants under Scheme No. VII-Leave to appeal granted to resolve such cleavage of opinion.-[Leave to appeal].

S -10 and Settlement Scheme No. VII read with Chief Settlement Commissioner's memo. No. 6149/PL/61, dated 19-1-1962 - Work relating to disposal of evacuee rural properties in any of three category areas-To be carried out according to memo. dated 19-1-1962-Deputy Commissioner though entrusted with disposal of kacha buildings in second category areas and all buildings in third category areas, yet such duties to be carried out by Deputy Commissioner as Additional Settlement Commissioner under Act XXVIII of 1958-Deputy Commissioner not shown to have been appointed as Additional Settlement Commissioner to have been conferred or delegated any powers of Chief Settlement Commissioner to implement Scheme No. VII, orders of Deputy Commissioner transferring properties, held, without jurisdiction and lawful authority.

Sched. I read with Settlement Scheme No. VII, para. 5-Baluchistan Rehabilitation Rules, 1951, rr. 6 & 8, Baluchistan Rehabilitation Regulation (11 of 1950), S. 8 and Notification No. 4591-U-RR/58, dated 15-1-1957-Displaced Persons (Compensation and Rehabilitation) Act, 1958-Not extended to special areas

Settlement Scheme No. VII prepared under such Act of 1958 accordingly not operative in Special Areas-Property transferred under Scheme in Special areas-Not legally transferred-Recourse taken by Deputy Rehabilitation Commissioner to provisions of Baluchistan (Rehabilitation) Regulation-Taken only for purpose of sustaining earlier ultra vires action-Notice of ejectment proceeding on basis of earlier invalid transfer order, held, also void and of no legal effect. (b) Baluchistan (Rehabilitation) Regulation (II of 1950)

Para. 3-Transfer of plots-Person in possession of plot prior to 1-1-1961-Such person alone can apply for its transfer-Petitioner never in possession of plot and contesting respondent through his father and predecessor-in-interest alone in possession of plot prior to 1-1-1961, petitioner, held, had no locus standi to seek transfer of plot by filing writ petition.

As amended by Displaced Persons Laws Amendment Ordinance (XIII of 1964), and Settlement Scheme No. VII-S. 4 (3)-Character of property disputed-Deputy Settlement Commissioner, Additional Settlement Commissioner or Settlement Commissioner, held, competent under Scheme VII to dismiss application for transfer of evacuee trust property.