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Civil Petition for Special Leave to Appeal No. K‑78 of 1973, decided on 7th September 1973.

‑‑ Sched. para. 1 read with Settlement Scheme No. VIII‑Petitioner's L.H. form rejected but no appeal, revision, or writ-petition filed against order‑Order having attained finality, petitioner can not be permitted to turn round and agitate against transfer in favour of final transferee‑Premises also having been finally transferred prior to introduction of Schein.‑ No. VIII ‑ Petitioner not entitled to transfer even on such account.

M. 1. Memon, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 7th September 1973.

Evacuee properties Nos. D/870, 871 and 872, Forte Gali, Hyderabad consist of three floors. On the ground floor are two shops, one of which was in occupation of Hakim Muhammad Idrees, a claimant displaced person (respondent No. 3 herein). The first and the second floors are residential units respectively in occupation of Mst. Jamila Sultana (petitioner herein) and her sister Mst. Atia Begum, both of whom are locals. It appears that at one stage, Government Vocational School for women was housed in the first floor and the petitioner as Supervisor of the school also resided in the premises. Her sister Mst. Atia Begum who was Headmistress in the same school, resided in the second floor. Since then, the school has been shifted elsewhere, but the two sisters continued in occupation of the two floors.

2. On commencement of the settlement operations, the respondent No. 3 applied for the transfer not only of the shop in his possession on the ground floor, but also of the residential units on the first and the second floors treating the entire property as single unit. The petitioner also filed LH form for the transfer of the first and second floors. The Assistant Settlement Commissioner treated the shop and the two floors as one unit and transferred the same to respondent No. 3. Later, however, he reviewed his earlier order and transferred, first and second floors to one Muhammad Hanif against his CH form notwithstanding its earlier transfer to respondent No. 3. Respondent No. 3, on his part applied to the Assistant Commissioner against the review by him of his earlier over in favour of respondent No. 3. The Assistant Settlement Commissioner maintained his first order only in respect of the transfer of the shop in favour of respondent No. 3, and maintained his subsequent order transferring the first and the second floor in favour of Muhammad Hanif. Against the latter order respondent No. 3 went in appeal to the Deputy Settlement Commissioner who, vide order dated 20th February 1967 cancelled the transfer of the first and second floors in favour of Muhammad Hanlf and also rejected the LH form of the petitioner. By the same order the Deputy Settlement Commissioner directed the disposal of first and second floors by open auction. He also fixed the value of the two floors at Rs. 18,000. The transfer of the shop on the ground floor in favour of respondent No. 3 was, however, preserved. It is important to point out that the petitioner did not pursue the matter any further by way of appeal or revision. Respondent No. 3 and Muhammad Hanif on the other hand, filed separate revisions before the Additional Settlement Commissioner, both of which were dismissed by single order dated 14th February 1961.

3. It appears that contrary to the order of the Deputy Settlement Commissioner dated 12th October, 1960, the first and the second floors were not put to auction. Instead, they were transferred to one H. A. Rizvi, in lieu of a house which he was not able to get in the earmarking scheme, although he was successful in the drawl of lots. Respondent No. 3, challenged the transfer for first and second floors in favour of H. A. Rizvi by Writ petition No. 214 in which besides the Settlement authorities only H.A. Rizvi was cited as the respondent. Mst. Atia Begum occupant of the second floor was later joined as respondent at her request. She also impugned the transfer in favour of Mr. H. A. Rizvi on the ground that her LH form for the transfer of the second floor still remained undisposed of. The writ petition was accepted by a learned Single Judge of the High Court, who vide his order dated 2nd March 1964 set aside the transfer of the first and second floors in favour of H. A. Rizvi and also the order dated 12th October, for the auction‑sale of first and second floors, and remanded the case to the Deputy Settlement Commissioner to consider the L H form alleged to have been filed by Mst. Atia Begum and also consider the question whether in the circumstances of the case, it was not desirable to divide the property into three portions, and further whether it is not a fit case that respondent No. 3 "should be transferred that portion of the property which is not transferable to any other party."

4. On remand, the Deputy Settlement Commissioner by order dated 7th December, 1964 transferred the second floor to Mst. Atia Begum and the first floor to respondent No. 3. The order transferring the first floor in favour of respondent No. 3 was not challenged and a P. T. D. has been issued in his favour in June 1966.

5. After the introduction of Scheme No. VIII in November, 1965, the petitioner on 20th October, 1966 filed a fresh L H form for the transfer of the first floor to her. Her form was rejected by the Deputy Settlement Commissioner on the ground that the second floor having been transferred to respondent No. 3, was "not available for transfer." She filed an appeal to the Additional Settlement Commissioner which was also rejected by order dated 30th May 1967. A revision taken to the Settlement Commissioner was similarly dismissed. This was followed by a Writ Petition No. 220 of 1968 which was dismissed by a learned Single Judge of the High Court of Sind & Baluchistan vide order dated 26th February 1973. This petition for special leave calls in question the order of the learned Single Judge dismissing the writ petition filed by the petitioner.

6. Learned counsel for the petitioner argued that respondent No. 3 not being in possession of the first floors its transfer in his favour was illegal and that further she being in possession of the same should have had notice of its transfer in favour of respondent No. 3. The argument however, conveniently overlooks the fact that the petitioner's LH form was earlier rejected by the Deputy Settlement Commissioner vide order dated 12th October, 1960, and she did not then take any proceedings either by way of appeal, revision or writ petition to challenge the order rejecting her LH form. That order has since attained finality and she cannot be permitted to turn round to agitate against the transfer of the first floor in favour of respondent No. 3. Secondly, the first floor stood finally transferred in favour of respondent prior to the introduction of Scheme No. VIII when her LH form was not pending.

7. For the foregoing reasons, there is no merit in this petition which is dismissed.

Petition dismissed.

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