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Civil Appeal No. 14 of 1983 in Civil Petition for Special Leave to Appeal No. 1058 of 1976, decided on 28th March, 1983.

(On appeal from the judgment dated 23rd September, 1976 of the Lahore High Court, Lahore in Writ Petition No. 822‑8 of 1973).

Constitution of Pakistan (1973)‑

----Art. 185(3) read with Displaced Persons (Compensation and Rehabilitation) Act (XXYIII of 1958), S. 10‑Transfer of evacuee property‑Parties, during proceedings before Supreme Court, entering into a compromise concerning mutual adjustment of portions of property transferred to them‑Settlement Department directed to issue fresh transfer orders in terms of compromise of parties regarding disposal of property.

Mian Nusrat Ullah, Advocate Supreme Court and Stead Wajid Hussain Shah, Advocate‑on‑Record (absent) for Appellants.

S. Zamir Hussain, Advocate Supreme Court and M. A. Qureshi, Advocate- on‑Record for Respondent No. 1.

Shahzad Jahangir, Advocate Supreme Court for Respondent No. 2.

Date of hearing : 28th March, 1983.

NASIM HASAN SHAH, J

: This appeal is directed against the judgment of a learned Single Judge of the Lahore High Court dated 23‑9‑1976 passed in Writ Petition No. 822‑R of 1973, whereby he dismissed the said petition with costs. The petition was directed against the order passed by the Deputy Settlement Commissioner on 26‑4‑1971, affirmed on appeal by the Additional Settlement Commissioner on 24‑7‑1971 and in revision by the Settlement Commissioner by his order dated 20‑9‑1973. The effect of . the impugned orders was that the predecessor‑in‑interest of the appellants herein, who the appellants regarded to be entitled to the transfer of the entire property bearing No. B/1866 Said Mitha Bazar, Lahore, comprising three shops and a residential portion was found entitled to only one shop out of the said three shops and the remaining two shops were ordered to be auctioned, while the residential portion was transferred to respondent No. 1, Muhammad Raza Khan.

During the proceedings before this Court, both the parties entered into a compromise and a copy of the compromise deed has been placed on record. According to the above compromise between the parties Muhammad Raza Khan, respondent No. 1, has surrendered his rights of ownership to the extent of two rooms on the first floor and two rooms behind the shops on the ground‑floor, which were presently in the possession of the Appellant No. 1, to the appellants. In this way, he has surrendered all his claims, rights an title over the said 4 rooms in favour of the appellants and agreed that the may become the full owners of the said 4 rooms.

The appellants, on their side, have agreed to waive all their claims, rights and title over the residential portion in possession of respondent No.1 i. e. 3 rooms on the first floor and one room on the ground floor, which is presently occupied by Gulzar Ahmad and have agreed that they will not assert any claim etc. in respect of these rooms.

The parties have further agreed that the appellants shall pay Rs. 6,000 to respondent No. 1 as a consideration for the payment made by the latter to the Settlement Department on account of Respondent No. 1 having surren dered his rights of ownership to the extent of 4 rooms mentioned above in favour of the appellants.

The parties in their deed of compromise have also submitted that

although the Settlement Department had treated the commercial portion on the ground floor to be 3 shops, because it had three doors, and had decided to transfer only one of the said shops in favour of the appellants and ordered the disposal of the remaining two shops by public auction, the Respondent No. 1 conceded that the commercial portion was, in fact, only one shop and not three shops and both parties prayed that the order regarding the auction of the said two shops may be set aside and the said so‑called two shops be also transferred to the appellants.

We observe that in the deed of compromise whereas the earlier part relates to making an adjustment of the portion of the property already transferred to the parties, the latter part thereof desires a modification of the order passed by the Settlement Department by obtaining the setting aside of their order to put some parts of the property to auction. We, therefore, summoned Mr. Shahzad Jahangir, learned counsel for the Settlement Department today and called upon him to state his views with regard to the above request of the parties. Mr. Shahzad Jahangir, after a detailed study of the record, has submitted that according to the Settlement Department the commercial part of the property consists of one single shop and another double shop; that the appellant No. 1 is in possession of the single shop, whereas the double shop has been ordered to be auctioned. He has further submitted that the Settlement Department could not accept the compromise of the parties so far as it related to setting aside the order concerning the auction of the double shop was concerned. However, the Department had no objection to the compromise of the parties concerning the mutual adjustment made by them of the portions of the property amongst themselves, which already stood transferred in their favour.

The learned counsel for the parties have candidly admitted before us that the order regarding auction of the double shop cannot beset aside merely by the mutual compromise pf the private parties However, they are still prepared to adhere to it and in particularly so far as it pertains to the remain ing property. Accordingly, a sum of Rs. 6,000 was paid in our presence by the counsel for the appellants to Respondent No. 1, who accepted it in token of acceptance of the part of the compromise which the parties can themselves implement and to which the Settlement Department has no objection.

We, therefore, direct that the Settlement Department will issue fresh transfer orders in terms of the compromise of the parties regarding the disposal of the property, except the double shop referred to above so far as the transfer of the double shop is concerned, we understand that it has not yet been auctioned. If this is so, the Settlement Department may consider his transfer in favour of appellant No. 1 in the light of the current instructions considering that he is now admittedly in possession of a portion of it and the same is still available for transfer.

This appeal is allowed in the above terms, leaving the parties to bear their own costs.

Appeal allowed.

S. Q.

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