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Civil Petition for Special Leave to Appeal No. 291 of 1980, decided on 13th July, 1980.

(On appeal against the order of the Lahore High Court dated 28‑1‑1980 in W. P. No. 1/R.72).

---Art. 185 (3)‑Leave to appeal‑Questions whether transfer of basement could be reopened where petitioners committed no misrepresentation or fraud in obtaining P. T. D. and whether Settlement Commissioner's order passed without impleading petitioners a nullity in law admitted to be considered and leave to appeal allowed.

Sardar Mohammad Latif Khosa, Advocate Supreme Court and Iqbal Ahmed Qureshi Advocate‑on‑Record for Petitioners.

Date of hearing : 13th July, 1980.

‑‑This petition for special leave to appeal arises out of a dispute regarding property No. S‑31‑R‑147. It was originally trans ferred on 30‑11‑1959 to Aslam Mahmood and Mst. Nawab Begum. The case was remanded on appeal, and revision petitions against that order as well as writ petition in the High Court proved of no avail in having the order of remand set aside.

2. On remand the learned Deputy Settlement Commissioner demarcated various portions of the aforesaid property and gave them various letters of the alphabet. Masood Ali claimed portion 'E' and 'G'. The D. S. C. held him not entitled to any part of the property. The property was distributed among the other applicants. The appeal was also dismissed.

3. Two other contenders for parts of the property that is Aslam Mahmood and Mat. Nawab Begum presented Writ Petition No. 599/R/62 which was dismissed. 'The basement No. E was, therefore, ordered to be auctioned by the D. S. C. Masood Ali applied for its deletion from that list but the Settle ment Commissioner did not stay the auction though he observed that the auction would not be confirmed till the Writ Petition was disposed of.

4. The auction was meanwhile held and Mst. Saeeda Bano etc, turned out to be the highest bidder for portion E.'

5. Masood Ali filed a revision petition before the Settlement Commis sioner without impleading Mst. Saeeda Bano, etc. as parties. A P. T. O. was issued to the petitioners on 15‑7‑1966 and a P. T. D. was issued to them on 9‑11‑1966.

6. Three years after this had happened, Masood Ali applied to the Additional Settlement Commissioner, Lahore, to substitute the letter 'E' for the letter 'G' in the order of the Settlement Commissioner. This application was rejected. The Settlement Commissioner accepted the application and ordered the substitution of letter 'E' for letter 'G' ; in other words trans ferred to him a property other than that which had been transferred to him by the Settlement Commissioner.

7. A Writ Petition No. 1/R of 1972 was meanwhile filed before the Lahore High Court. The petition was argued for several days before the learned Single Judge of the High Court who ultimately came to the conclusion that the parties who were present in person had finally agreed that the case be remanded to Settlement Commissioner for fresh decision and that in view of it there was no need to deal with the various arguments, and, therefore, proceeded to quash the impugned order of the Settlement Commissioner dated 21‑12‑1964 and remanded the case to him for fresh decision in accordance with law after hearing‑the parties.

8. It has been, inter alia, pleaded before us that the order of the learned Settlement Commissioner dated 21‑12‑1964 having been passed without impleading the petitioners was a nullity in law and there was no question of correcting the sauce. It has also been submitted that no fraud or misrepresentation was made by the petitioners in obtaining the P. T. D. and as such the matter of the transfer of the basement could not be re‑opened.

9. In view of the submissions made before us leave to appeal is granted to the petitioners on payment of a security of Rs. 2,000.

Leave granted.

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