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Writ Petition No. 1044/R of 1964, decided on 13th November 1968.

‑Transfer of house‑Possession of more than one claimant‑Claimants S and A in possession of disputed property filing their respective CH forms‑P. T. O. issued in favour of S and then also in favour of A‑P. T. O. of A subsequently cancelled by Deputy Settlement Commissioner holding same to be later in point of time but without deciding dispute between parties inter se and without giving any decision as to who was entitled to its transfer as a whole or whether house could be divided into portions‑Held, mere fact that P. T. O. of S was earlier in point of time could not disentitle of his claim‑Case, in circumstances, sent back for decision as to which of the parties was entitled to transfer and whether house was divisible.

Son filing CH form on behalf of father whose whereabouts were not known‑Appeal filed by son on behalf of father against cancellation of P. T. O. in favour of father before Additional Settlement Commissioner dismissed on grounds that it was neither signed by father nor son had any power‑of‑attorney from father‑Plea of insanity of father raised in revision but petition rejected by Settlement Commissioner without investigating into question whether father was a sane person ‑ Held, Settlement authorities, in circumstances, did not apply their mind properly to facts of case‑Case sent back for decision whether father was a: person of unsound mind.

Q. M. Hafeez for Petitioners.

Rana Maqbul Ahmad for Respondent No. 1.

Date of hearing : 13th November 1968.

In this matter the dispute between the parties is in respect of House No. 124/C, situated in village Mitranwali, District Sialkot. It was occupied by one Nemat Khan, father of petitioner Muhammad Ibrahim and Mst. Muhammad Jan, respondent No. 1. On the 15th of July 1959, two forms were: filed, one on behalf of Muhammad Ibrahim, through his son, Ainul Haq, and the other on behalf of respondent No. 1. Mst. Muhammad Jan. Before this, however, the statements of the parties had also been recorded. Ainul Haq stated before the Rehabilitation officer that his father had disappeared and his. whereabouts were not known. On the 5th of January 1960, aw P. T. O. was issued in favour of respondent No. 1. Another P. T. O. was issued in favour of Muhammad Ibrahim 9n the 21st of March 1960.

2. Respondent No. I challenged the P. T. O. issued in favour of the petitioner and moved an application on the 12th of March 1962, for this purpose against Mst. Amtul Bibi and one Abdul Shakoor who was going to purchase the property in dispute. The Deputy Settlement Commissioner, by order dated the 23rd of January 1963, cancelled the P. T. O. of Muhammad Ibrahim on the ground that it had no validity in tote eye of law as a P. T. O. hid already been issued in favour of respondent No. 1. The appeal filed on behalf of Muhammad Ibrahim was dismissed by the Additional Settlement Commissioner on the 17th of April 1963, on the ground that it was not maintainable because it was not signed by Muhammad Ibrahim, nor had he given any power‑of attorney to Ainul Haq who had filed the appeal. He also held that the house was indivisible. The matter was then taken to the Settlement Commissioner. It was urged before him that Muhammad Ibrahim is a person of unsound mind, that he was missing for the last several years and that the CH Form and the appeal filed on his behalf were in proper form. The learned Settlement Commissioner, by order dated the 4th of December 1963, without investigating into the question whether Muhammad Ibrahim was a sane person, dismissed the revision with the following observations :‑

"I find that the plea of insanity has been taken at the revisional stage, that in all documents filed by Ainul Haq insanity was not alleged, it was merely stated that Muhammad Ibrahim is missing. He cannot be allowed to change his position now. His alternative stand as an heir of the petitioner is untenable, unless the death of Muhammad Ibrahim is alleged and established. It has not been done nor alleged. Apart from the above, the matter of entrance to the claim of a common ancestor is not material in this case which relates to the trans fer of an evacuee property, which has been exclusively claim ed by both the parties by filing their respective CH Forms."

He further observed :‑

"I find further that Ainul Haq was examined by the D. S. C. concerned on 2‑7‑59 (page 15), hence his contention that he was not summoned or heard is untenable; that respondent Muhammad Jan was issued a P. T. O. much earlier to the issuance of P. T. O. to the petitioner Muhammad Ibrahim ; by that time the property was not available for transfer to him. The P. T. O. in his name is, therefore, illegal and ineffective. It was rightly cancelled by the Courts below."

These orders are being challenged in the present writ petition before me.

3. In support of the petition. Mr. Q. M. Hafeez, learned counsel for the petitioner, has contended that the petitioner is a person of unsound mind and the CH Form was filed on his behalf in terms of Paragraph 5 a of Settlement Scheme No. I through his guardian, Ainul Huq, who is one of the sons of the petitioner. He further contended that from the very beginning the case of the petitioner was that he had disappeared and his whereabouts were not known and, therefore, it could not be said that it was for the first time that a case was set up that the petitioner was a person of unsound mind. According to the learned counsel, it was the duty of the revisional authority before whom the question of insanity of the petitioner was alleged to hold an inquiry and to decide whether or not the petitioner was a person of unsound mind. It is also urged that the learned Settlement authorities did not decide the dispute inter se between the parties and have not given any decision as to who was entitled to the transfer of the property as a whole or whether it could be transferred to them after dividing it into two portions.

4. In reply, Rana Maqbul Ahmad Kadri, learned counsel for respondent No. 1, has stated that respondent No. 1 denies that petitioner Muhammad Ibrahim is a person of unsound mind but she was not denied that he has disappeared or is missing for the last several years. According to him, the petitioner off and on visits his home and this fact is supported by Mutation No. 193 of Village Mitranwali which took place on the 24th of January 1968, under which some land in the village was redeemed.

5. After hearing the learned counsel for the parties, I am satisfied that there is much force in the contention raised on behalf of the petitioner. From the very beginning, efforts were made on behalf of the petitioner through his son, Ainul Haq, for obtaining the transfer of the property in dispute. On 2nd of July 1959, he made a statement b; fore the Rehabilitation Officer that his father had disappeared and that he was entitled to the' transfer of the property in dispute. The CH Form was also filed through him. The appeal before the Additional Settlement Commissioner was also filed through Ainul Haq. Finally, when the matter came up before the Settlement Commissioner, a definite, plea was raised that petitioner Muhammad Ibrahim was a person of unsound mind and, therefore, all the steps taken‑ on his behalf through his son were valid according to Paragraph 5(a) of Settlement Scheme No. I.

6. It will be noticed that the learned Settlement Commis sioner did not hold any inquiry for finding out whether Muhammad Ibrahim was a person of unsound mind or not. Instead, he rejected this plea on the ground that he could not be allowed to change his position before the revisional authority. In my opinion, this approach to the question was faulty ands cannot be accepted as a sound one. In matters where minors or persons of unsound mind are concerned, it is the paramount duty of the Judicial or quasi‑judicial authority to protect their interests. If the learned Settlement Commissioner, had any doubt about the allegation that Muhammad Ibrahim was a person of unsound mind, he should have held an inquiry and given a judicial determination to the question raised before him.

7. It seems to me that the learned Settlement authorities have not applied their mind properly to the facts of the present case. In the first place, they should have gone into the question whether Muhammad Ibrahim was a person of unsound mind and they should have further considered the rights of the parties inter se, namely, between Muhammad Ibrahim and Mst. Muhammad Jan in respect of the property in dispute. None of the Settlement authorities have ;one into these questions. The mere fact that a P. T. O. had been issued in favour of Mst. Muhammad Jan earlier in point of time, could not disentitle C Muhammad Ibrahim of his claim. I would, therefore, set aside the impugned order and send back the case to the Deputy Settle ment Commissioner concerned to decide the following points :‑

(1) Whether Muhammad Ibrahim is a person of unsound mind,

(2) Which of the two parties is entitled to the transfer of the house in dispute, and

(3) Whether the house can be divided easily between them so as to satisfy their claims.

The learned Deputy Settlement Commissioner is directed to decide the above points at an early date after notice to the parties and to transfer the property to the party or parties entitled to it.

8. In the result, subject to the above remarks, this petition is allowed, with no order as to costs.

A. E. Petition allowed.

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