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Intra‑Court Appeal No. 145 of 1977, decided on 31st January, 1983.

Appellant not in possession of premises at relevant time as such had no right even to submit form under Scheme No. VI‑Record not showing that appellant had put up any construction on plot Mera assertion by someone that appellant bad put some construction, held, cannot be relied upon‑Findings of facts main tained in circumstances of case.

‑‑ S. 3‑Intra‑Court appeal‑Appellant having knowledge of issuance of P.T.D. not agitating same‑Other party, held, cannot agitate same on behalf of appellant after 8 years‑Settlements; Authorities becoming funtcus officio after issuance of P. T. D.

M. A. Faridi for Appellant.

M. Saleem Zeervi for Respondents.

Dates of hearing : 30th and 31st January, 1983.

This Intra‑Court Appeal is directed against the order, dated 1st November, 1977 whereby the constitution petition filed by the appellant was dismissed in limine in view of the fact that the Deputy Settlement Commissioner after a thorough enquiry held that the appellant had never been in possession of the plot in question till 1st November, 1959 when applications were invited under Settlement Scheme No. V1 and that Abdul Majid had been occupying the disputed premises while the appellant lived in a different house since 1960. It was further taken note of that the P. T. D. had already been issued in favour of Ibrahim in 1965 and the appellant knew about it since 1966, as such, he lost any right that he might have bad in the property due to his acquiescence for the last seven years. These findings were recorded by the Deputy Settlement Commissioner in his order dated 31st January, 1977 which was impugned in the constitution petition. In pursuant of narration of facts. It may be added that the impugned order dated 31st January, 1977 came to be passed in view of the order dated 29th November, 1976 of the Additional Settlement Commissioner in an appeal filed by the appellant on 27th March, 1976. Prior to this, property No. SE‑VI‑S‑8‑11, which includes the premises being claimed by the appel lant, was transferred to the respondents by the Deputy Settlement Com missioner vide order, dated 24th August, 1963 and in pursuance thereof, P. T. D. was also issued, on 9th August, 1965. The respondents then instituted eviction proceedings in 1966 against the appellant as well as Abdul Majid who admittedly is in occupation since 1960. These pro ceedings ended in dismissal in the year 1972. It was thereafter in the year 1973 that the appellant filed an appeal before the Additional Settlement Commissioner challenging the order of transfer on the ground that he had submitted a form and the said form had not been disposed of. The learned Additional Settlement Commissioner holding that the transfer order passed without the disposal of B. S. Form of the appellant is nullity in the eye of law and on this premise he condoned the delay in filing the revision petition and remanded the case to the Deputy Settle ment Commissioner for fresh decision in accordance with law. The Deputy Settlement Commissioner ultimately vide order, dated 31st January, 1977 again ordered that the house in full be transferred to the respondents after recording the findings referred to above, and more precisely noted in the order of the learned Single Judge.

2. Learned counsel in support of the appeal has argued that the respondents )lad applied for the transfer of 4 house obstructed on 4 marlas which contained three rooms and, as such he could not have been transferred the premises in occupation of Abdul Majid, a licensee of Siraj Din, appellant. He submits that the entry of 4 marlas in the relevant form was interpolated to read as 8 marlas later on.

Learned counsel for the respondents, on the other hand, submits that Siraj Din had left the premises since before the target date and that was the reason for his not pursuing the form if at all filed by him and that Abdul Majid by obtaining a power of attorney from Siraj Din is trying to grab the portion of the house which stood duly transferred to Ibrahim, the predecessor‑in‑interest of the respondents.

3. We, after calling the record from the department, have examined the same in the presence of the learned counsel for the parties. We find that on record there is only a duplicate B. S. form of Ibrahim and in that form figure '4' has been changed to figure 8'. The number of rooms given is 3 but the house as a whole by giving its number had been applied for. Moreover, in the report of the Inspector as well as the site plan prepared, entire 8 marlas were recommended to be transferred and the Deputy Settlement Commissioner vide order, dated 24tb August, 1963 agreeing with the report of the Inspector allowed the transfer of the full house. In view of above, it cannot be urged that the change of figure 4' to '8' was made subsequent to the transfer order or that the Deputy Settlement Commissioner had not transferred the entire 8 marlas, consciously in favour of Ibrahim, predecessor‑in‑interest of the respondents.

We have also found on record an application submitted by Siraj Din through Mr, M. A . Faridi, the learned counsel for the appellant, who is even now, representing him in appeal, for supply of copy. It is obvious that Siraj Din was at least aware of the transfer order, dated 28th August, 1963 passed in favour of Ibrahim in the year 1965. Admittedly, the said order was not challenged then. The challenge was made only in the year 1973 and that too after contesting ejectment pro ceedings from 1966 to 1972. These ejectment proceedings were not successful as the plot which was transferred was held not to be falling within the definition of "rented land" because admittedly the same was being used by Abdul Majid for residential purposes. We have no doubt in our mind that this litigation is being continued by Abdul Majid for his own benefit by obtaining power of attorney from Siraj Din who according to Abdul Majid himself had felt the premises in the year 1960 and since then he is in occupation. The Deputy Settle ment Commissioner, after appraisal of the material on record; came to the conclusion that Siraj Din was not in possession of the premises a the relevant time and, as such he had no right even to submit the form under Settlement Scheme No. VI. Moreover, there is nothing on record to show that Siraj Din had either put up any construction. on the plot. Mere assertion of Abdul Majid that Siraj Din had told him that he had put up some construction cannot be relied upon. The findings of fact recorded were upheld by the learned Single Judge and we see no justifi cation in not accepting them.

4. Even the constitutional jurisdiction being an equitable jurisdiction cannot be allowed to be invoked by Siraj Din as he came to know of the transfer order and the P. T, D, issued in favour of Ibrahim in the year 1965, but he did not agitate the matter himself and in his shoe Abdul Majeed cannot step in the year 1973 to claim the premises in dispute for and on behalf of Siraj Din. The Settlement Authorities in fact had become funetus officio in the year 1973, the P. T. D. having been issued to Ibrahim predecessor‑in‑interest of the respondents, as early as in the year 1965. Finality so attaching cannot be allowed to be set at naught at the behest of Siraj Din and Abdul Majid.

5. In view of what has been stated above, no case is made out for interference in Intra‑Court Appeal, the appeal, therefore, is dismissed without any order as to costs.

M. A. K. Appeal dismissed.

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