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Civil Petition for Special Leave to Appeal No. 458 of 1972, decided on 28th June 1973.

(On appeal from the judgment and order of the Lahore. High Court, Lahore, dated the 22nd March 1972, in Writ petition No. 302‑R of 1970).

.‑Transfer of house at reserved price mentioned in auction list‑Transferee paying up such price Later price as given in auction list found to be incorrect and Settlement authorities claiming a larger amount‑Transferee thereupon surren dering his right by getting transfer cancelled and receiving refund of price paid‑‑Could not be permitted to question transfer of house to another by open auction subsequently.

Sh. Abdur Rashid, Senior Advocate Supreme Court instructed by Wajid Hussain, Advocate‑on‑Record for Petitioner.

Sh. Atta Ullah, Advocate Supreme Court instructed by Rana Maqbul Ahmad Qadri, Advocate‑on‑Record for Respondent No. 1.

Nemo for Respondents Nos. 2 to 4.

Date of hearing : 28th June 1973 .

The dispute in this petition for Special leave to appeal concerns the transfer of house No. 1/439, Chitti Rattian, Rawalpindi City. The contest is now confined to the petitioner who is a claimant displaced person in occupation of a portion of it through his son, being an allottee of a portion and respondent No. 1, the purchaser of the entire house at an open auction under Scheme No. VIII under Act XXVIII of 1958.

On the eve of the settlement operations, the petitioner and one Abdullah, also a claimant who was in occupation of another portion of the house, applied on CH forms for the transfer of the house. The Deputy Settlement Commissioner by his order dated 22‑11‑59 transferred the house in favour of Abdullah, who however could not pay the price and therefore the transfer in his favour was cancelled and the property was resumed to be included in the auction list for sale at reserved price of Rs. 21,600. The petitioner whose CH form had earlier been rejected applied to the Deputy Settlement Commissioner requesting that since he has been in occupation of the house it should be transferred to him on payment of the reserved price. The request was allowed and the house was transferred to him on payment of Rs. 21,600 of which Rs. 9,600 was adjusted against his claim and balance Rs. 12,000 was paid by him in cash.

After the petitioner had paid the full price he was informed by the Deputy Settlement Commissioner 04 the reserve price of the house in dispute owing to an accidental error was shown' in the auction list as Rs. 21,600 ‑although its actual price was Rs.42,240. But the petitioner who was directed to pay the balance, did not consider it worthwhile to obtain the transfer of the house for Rs. 42,240. He therefore requested the Deputy Settlement Commissioner to cancel the transfer in his favour and refund the amount paid by him. This request was allowed and Rs. 12,000 had since been refunded to him.

The house was again offered for sale by auction at the reserved price of Rs. 42,240. However, no bid was offered although date of auction was fixed a number of times. Ultimately on a recommendation by the Deputy Settlement Commissioner, the reserved price of the house was reduced by 50 per cent. and it was auctioned in favour of respondent No. 1 for Rs. 21,200. The petitioner having come to know about the transfer of the house in favour of respondent No. 1 for Rs. 21,200, although the transfer of the house in his favour for Rs. 21,600 had been cancelled, moved an application for the transfer of the house for the amount he had earlier paid. This request was refused because he had surrendered his right for the transfer of the house finally and the house had been auctioned in the meantime. This order was challenged in appeal before the Additional Settlement Commissioner and in revision before the Settlement Commissioner both of which were dismissed. A writ petition was similarly dismissed. The petitioner now seeks special leave against the order in the writ petition.

Learned counsel for the petitioner argued that the petitioner, by virtue of his occupation of the house and being a claimant, had a preferential right for the transfer of the house as against respondent No. 1, more so when he had actually paid higher price for the house than that paid by respondent No. 1. As rightly pointed out by the learned Single Judge, this is hardly a ground for the cancellation of the auction sale in favour of respondent No. 1. It cannot be gainsaid that the petitioner surrendered his right for the transfer of the house without any reservation. Furthermore, he did not challenge the demand of the Settlement Authorities for the payment of Rs. 42,240 having once sold the house to him for Rs. 21,600. Having surrendered his right for the transfer of the house, he cannot now be permitted to question the transfer of the house under Scheme No. VIII in favour of respondent No. 1 by means of open auction and allowed to take advantage of the fortuitous fact that the price fetched by means of the auction sale was less than what was offered by him.

There is no merit in the petition which is dismissed.

Leave refused.

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