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Civil Appeal No. 70 of 1981 in Civil Petition for Special Leave to Appeal No. 12-R of 1981, decided on 21st March 1981.

(On appeal from the judgment and order of the Lahore High Court dated 22-1-1980 in W. P. 36/R of 1980).

-- S. 25 read with Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2-Cancellation of P. T. D.-Fraud- Remedy-Deputy Settlement Commissioner being devoid of jurisdiction to cancel P. T. D. of respondent after promulgation of Act XIV of 1975 and S. 25 of Act XXVIII of 1958 also coming in way of petitioner's suit, judgment of High Court observing petitioner to be free to prosecute his claim in suit filed by him, held, not correct-Respon dent's counsel however, stating his inability to defend Settlement Commissioner's order same being totally without jurisdiction, and no prejudice caused to petitioner if he be directed to prosecute his remedies only in suit filed by him-Petitioner also being guilty of fraud first respondent allowed to amend his written statement, if necessary, in order to raise such plea and Civil Judge directed to decide such suit according to law after giving parties opportunity to produce evidence in support of their contentions.-[Fraud].

Samad Mahmood, Advocate with Khan Imtiaz Muhammad Khan, Advocate-on-Record for Petitioners.

Mian Nazeer Ahmad, Advocate and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing : 21st March, 1981.

The dispute in this petition for leave relates to a very small plot of land in Rawalpindi, which was evacuee property. The plot was transferred to the second respondent, who had obtained the P. T. D. for it before the repeal of the Displaced Persons (Compensation and Rehabili tation) Act, 1958 (hereinafter called the said Act), by the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975). Now, although the petitioner was not entitled to this plot he claims to have built some houses on it. Therefore, he purchased the plot from the second respondent in 1977 by a registered sale deed. The first respondent thereupon claimed ownership of the plot on the basis of a transfer order dated 6-2-1978, therefore, the petitioner filed a suit against him in the Court of the Civil Judge, Rawalpindi, for a declaration that he was the owner of the plot and for the usual permanent injunction. And, according to Mr. Samad Mahmood, the Local Commissioner, who was appointed by the Civil Judge, has submitted a report that the petitioner is in possession of the disputed plot. In this background, after the petitioner had filed his suit and long after the repeal of the said Act, the first respondent filed an application before the Deputy Settlement Commissioner on 12-3-1979 for the cancellation of the P. T. D. issued to the second respondent. The petitioner contested this application, but the first respondent's application was illegally allowed behind his back by the Deputy Settlement Commissioner on 29-11-1979. As he was divested of his title by this order, he filed a writ petition against it in the Lahore High Court which was dismissed by a learned Judge on 2-11-1980. Hence this petition for leave.

The writ petition was dismissed with the observation that the petitioner was free to prosecute all his claims in the suit filed by him. That is correct, but it escaped the attention of the learned Judge that the Deputy Settlement Commissioner had no jurisdiction whatsoever to cancel the P. T. D. of the second respondent after the promulgation of Act XIV of 1975. And, further as section 25 of the said Act might also come in the way of the petitioner's suit, we are satisfied that the judgment of the High Court is not correct and cannot stand. However, Mr. Nazir, who appeared on behalf of the first respondent, stated that he could not, as an Advocate, defend the Deputy Settlement Commissioner's order of 29-I1-1979 as it was totally without jurisdiction having been passed after the repeal of the said Act.

The concession thus made by Mr. Nazir is proper because no other view of the law is possible. But, it is our duty to observe that learned counsel's conduct in making this concession is as commendable as it is unusual. Therefore, in view of this concession, no prejudice will be caused to the, petitioner if he is directed to prosecute his remedies only in the suit filed by him. We note, however, Mr. Nazir's contention that the petitioner too is guilty of fraud. Therefore, we would observe that the first respondent is free to amend his written statement if necessary in order to raise this plea. And, the Civil Judge will hear and decide the suit of the petitioner, according to law, after giving the parties opportunity to produce evidence in support of their respective contentions. The petition is converted into an appeal and allowed on these terms without any order as to costs.

Order accordingly.

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