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ETC.‑Respondents

Writ Petition No. 570/R of 1975, decided on 19th December, 1975.

‑‑And Settlement Scheme No. VIII‑‑Transfer of property‑Deputy Settlement Commissioner holding petitioner in possession of property but rejecting his NCH form without pointing any defect Reasons given for rejection not supported by law and initial order passed in absence of petitioner‑Held, Deputy Settlement Commis sioner having given clear finding on possession of petitioner could not deprive him of transfer of house‑Petitioner being a non. claimant displaced person in possession of disputed house could not be rejected on account of some technical defect in form Impugned order set aside as being without lawful authority Deputy Settlement Commissioner directed to transfer property to petitioner.

Islam Ali Qureshi for Petitioner.

Mahfoozul Haq for Respondents Nos. 3 to 8.

Date of hearing : 19th December, 1975.

The dispute in this petition pertains to a small house No. 256/C, Vehoa, Tehsil Taunsa, District Dera Ghazi Khan. Petitioner, who is a non‑claimant, was deprived of the transfer on the ground that he had not paid the rent of the property in dispute and, the Deputy Settlement Commissioner, therefore, rejected the N C H form on 22‑6‑1960. Against this order the petitioner filed time‑barred appeal which was dismissed on 7‑12‑1972 on the ground of limitation as well as on merits. Thereafter, he filed a revision and the Settlement Commissioner by his order dated 27‑3‑1974, remanded the case to the Deputy Settlement Commissioner with the following directions :‑

"(1) He would see as to if Nasrullah is or was in occupation of the house.

(2) He filed a form and that form finds entry in the relevant register.

(3) Was this property put to auction If so whether it was properly held and was properly got confirmed."

On remand the Deputy Settlement Commissioner inspected the spot and held an inquiry there and found that petitioner, Nasrullah, along with his brother Azimullah was in possession of the property in dispute, but the transfer was refused on the ground that the form filed by the petitioner was "not a proper form and the Deputy Settlement Commissioner further found that the property had been validly aucti oned in favour of respondent, Sardar Allah Nawaz, which auction was later on confirmed by the Additional Settlement Commissioner. He, therefore, by his order dated 16‑5‑1974, turned down the claim of the petitioner.

Aggrieved by this order the petitioner again invoked the revisional jurisdiction of the Settlement Commissioner but his revision failed on the ground that the action in favour of Sardar Allah Nawaz was properly held and confirmed and the auction‑purchaser had also been issued a Permanent Transfer Deed.

2. After hearing the learned counsel for the parties, I am of the view that this petition must succeed. On remand, the Deputy Settlement Commissioner held the petitioner to be in possession but the reason which he gave for depriving the petitioner of the transfer is not supported by any provision of law. The Deputy Settlement Commissioner never mentioned as to what was the defect in the form filed by the petitioner and on what ground it was treated to be not a "proper form". Even otherwise the initial order dated 22‑6‑1960 was not in accordance with law as it had been passed in the absence of the petitioner. There is nothing on the record to show that he was summoned and yet he did not turn up.

3. On behalf of the respondents, it was argued that the property had been validly purchased by the predecessor‑in‑interest of the respo ndents Nos. 3 to 8, in open auction, which was subsequently, confirm although the learned counsel was not in a position to give the date c.: confirmation. It was next contended that the form filed by the petitioner was under Settlement Scheme No. VIII, and that was after the property had been purchased by the auction purchaser. Learned counsel also drew my attention to Annex "B", Permanent Transfer Deed, which pertains to house No. 190 which had been transferred in favour of Azimullah, real brother of the petitioner, and then referred to the finding given by the Administrative Civil Judge, D. G. Khan his judgment dated 24‑4‑1972, to show that it was Azimullah, who was in possession of the property in dispute and not Nasrullah. Learned counsel also submitted that as is evident from Annex C" order of the Deputy Settlement Commissioner, dated 22‑6‑1960, it was Azimullah, who was found to be in possession of house No. 256. These contentions, in my view, have no force. There is a clear finding by the Deputy Settlement Commissioner about the possession of the petitioner. The petitioner could not be deprived of the transfer of the house simply because his brother had been transferred another house In this connection I may observe that the house transferred to Azimullah is a different one than the one in dispute, nor can any importance be given to any finding arrived at by the learned Civil Judge in the litigation between the respondent and Azimullah. Petitioner being non‑claimant displaced person and in possession of house in dispute could not be deprived of the transfer on account of some technical flaw in the form which had not been even mentioned and I am inclined to agree with the learned counsel for the petitioner that the name of Azimullah in the order of the Deputy Settlement Commissioner, dated 22‑6‑1960, could be a genuine mistake and as a matter of fact, it should have been Nasrullah.

For the foregoing reasons I would allow this petition, declare the impugned orders to be without lawful authority and direct respondent No. 1 to transfer the property in dispute to petitioner in accordance with law. No costs.

M.Y.H. Petition allowed.

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