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Civil Petition for Special Leave to Appeal No. K‑197 of 1974, decided on 11th March 1975.
(On appeal from the judgment of the Sind & Baluchistan High Court dated 10‑7‑74 in Constitution Petition No. 307 of 1969).
‑ Sched., Part II‑Transfer of evacuee shop‑S, a claimant displaced person filing C. H. form for transfer of shop in his possession but his form rejected on ground of shop being an evacuee trust property and as such not transferable‑Shop. however, subsequently transferred to M and I without notice to S‑Shop later ordered to be transferred to S‑Contention that S's C. H. form having been rejected without being appealed against, right of transfer lost to S --Held : C. H. form of S having been rejected on ground of property being evacuee. trust property. property if subsequently‑ found to be not trust property, person having preferential claim was S, claimant in possession, and his C. H. form ought to have been restored ants his entitlement decided‑Auction of property, property being trust property at time of auction‑Totally void.
Akhtar Mahmood, Advocate instructed by Vakil Ahmad Kidwal, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of bearing : 11th March 1975.
The dispute in this case relates to bearing No. GJ1 in a building on ‑plot No. N. P. 10/65 in Jodia Bazar, Karachi. t was in possession of the respondent, Abdul Shakoor, a claimant displaced person who had filed a C. H. form for its transfer on the 6th November, 1969, but his form was rejected on the ground that the property in question being a trust property was not transferable. The said claimant then continued to pay rent to the Divisional Evacuee Trust Committee, Karachi, uptil 30th June, 1968 but he was surprised to find that on the 18th April. 1968 the same shop was auctioned in favour of two persons named. Mohammad and Ibrahim and a P. T. D was issued in their favour on the 18th July, 1968. These auction‑purchasers within a month thereof sold the property to the predecessor‑in‑interest of the present petitioner on the 28th August, 1968. In these circumstances, the respondent, Abdul Shakoor, filed an appeal against the issuance of the P. T. D. in favour of Muhammad and Ibrahim. This appeal was allowed on the 8th January, 1969, and a direction was issued to the Deputy Settlement Commissioner to decide the. entitlement of the petitioner after setting aside the auction. The petitioner's predecessor -in‑interest then went up in revision to the Settlement Commissioner who set aside the order of the Additional Settlement Commissioner and maintained the auction in favour of Muhammad and Ibrahim. The respon dent, Abdul Shakoor, then challenged the order by a writ petition in the High Court of Sind & Baluchistan. The petition was allowed and the auction was set aside and the case was sent back to the Settlement authorities to consider the entitlement of the said Abdul Shakoor.
The petitioner has now come up for special leave to appeal and it is contended on his behalf that the High Court has failed to notice the said Abdul Shakoor's claim that he had filed a C. H. form which had not been accepted by the Settlement authorities was itself disputed. In arty event, Abdul Shakoor was held to have lost his right by reason of not filing any .appeal against the order rejecting his C. H. form.
It is to be remembered that the C. H. form was rejected on the ground that the property was held to be trust property. If subsequently it was found that the property was not trust property then the person who had a preferential right was not the claimant in possession and his C.H. form should then have been restored and the entitlement of the claimant decided. The dispute relating to the filing of the C. H. form will also come up for consideration before the Settlement authorities when the question of the entitlement of the respondent is taken up. In the circumstances, we consider that the order passed b the High Court was proper and in every way justified.
The petitioner has contended that he ought to be allowed to contest the proceedings and if it is held that the said, Abdul Shakoor, had not filed a C. H. form then the auction in favour of Mohammad and Ibrahim should be restored. We are unable to accede to this request because if the property was trust property at the time the auction was held then the auction was totally void. On the other band, if the property was not trust property then ‑the person who is entitled to its transfer will be the person in possession and it is admitted that Abdul Shakoor was and still in possession.
In the circumstances we cannot appreciate how the petitioner can claim to come in. This petition is, accordingly, dismissed.
Petition dismissed.
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