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Writ Petition No. 1230‑R of 1977, heard on 24th April, 1982.
‑‑ S. 10 and Settlement Scheme No. VIII‑Transfer of property‑Posses sion‑Petitioner's possession established but property not allotted due to his predecessor‑in‑interest being told of property being evacuee trust‑Transfer of property in favour of respondents 1 and 2 without hearing petitioner so far as portion in his possession concerned, held, illegal Case remanded for decision afresh in accordance with law.
Hameed Aslam Qureshi for Petitioner.
Syed Muhammad Ali Zaidi for Respondents.
Date of hearing : 24th April, 1982.
]The dispute in this case relates to the transfer of the property bearing No. 164, Ward No. 2, situate on Khasra No. 7.56 in Chiniot, District Jhang. The petitioner claims it on account of his possession and as successor‑in. interest of one Roshan Din whose application originally was rejected on the ground that it was evacuee waqf property. The respondents 1 and 2, on the other hand, got this property transferred in their names as evacuee property on the basis of their possession in 1976, under Scheme No. VIII.
2. The facts leading to this case are that an application filed, for the transfer of the property, by Roshan Din was rejected on 25th November, 1959, for the reason that it was an evacuee trust property. In 1967, the respondents 1 and 2 also moved for the transfer of the property but it was rejected on the ground that they were not in possession and that the property was an evacuee waqf.
3. The respondents then; approached the Chairman, Evacuee Trust Property Board, who vide his order dated 19th February, 1972 came to the conclusion that the properly bearing No. 164, Ward No. 2, situate in Khasrs No. 756 was not an evacuee trust property whereas the one on Khasra No, 75: only was of that nature. The respondents 1 and 2 again applied under Settlement Scheme No. VIII for the transfer of the property. The case of the petitioner is that he always thought the property as waqf and not evacuee and, therefore, did not ask for its transfer. The Deputy Settlement Commis sioner also never heard him.
4. The respondents 1 and 2 applied for the property on 27th February, 1974 and the same was transferred to them on 8th April, 1976. The respon dents 1 and 2 then sent a notice dated 14th June, 1977 to the petitioner and other occupants complaining that they had not paid any rent since the date of transfer. They further notified that in case they did not pay up the rent, they shall be proceeded against. The petitioner then filed the present writ petition.
5. It is contended by the learned counsel that as the respondents 1 and 2 had never been found in possession of the property and as the same is also supported by the notices (Annexures G/1' and G/2') that the possession was with the petitioner and others, the very transfer is fraudulent and unlawful. As for his locus standi, the petitioner relies on the alleged claim that he is successor‑in‑interest of Roshan Din and also that being in possession of the residual property, he would also be entitled to its transfer.
6. The facts given above do make it clear that the Deputy Settlement Commissioner, vide his order dated 8th June, 1967, found that respondents 1 and 2 were not in possession. The same situation is spelt out from the contents of Annexures G/1', G/2' and G/3'. The possession of the petitioner is established. His predecessor‑in‑interest was told that the property is an evacuee waqf. In the circumstances, the petitioner . would have a better right and the respondents 1 and 2 perhaps may not be able to get the property in case their possession on the relevant date is not established prima facie, an inquiry was needed by the Deputy Settlement Commissioner before passing his order and the petitioner in the circumstances of the case, had a right to be heard.
For the reasons stated above, the impugned order, passed in favour of the respondents 1 and 2, so far as it concerns the petition in possession of the petitioner, is declared to be without lawful authority and of no legal effect. The Deputy Settlement Commissioner is also directed further to inquire into the claim of the parties and pass a fresh order in accordance with law. There will be no order as to costs.
M, Y, H. Petition accepted.
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