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Constitutional Petition No.275 of 1976, decided on 20th October, 1983.

---Ss.10 & 11--Constitution of Pakistan (1973), Art.199--Transfer of property--Identity of property--Property transferred to petitioner and its identity standing concluded by a judgment of High Court in a Writ Petition and findings as to measurement of property directed to be transferred to petitioner was allowed to attain finality--Neither any proceedings/remedy ever taken nor same challenged by petitioner at any time--Petitioner, held, could not be allowed to reopen such question.

Murad Bibi V. Ramzan Bibi 1968 S C M R 1007 ref.

---Ss.10 & 11--Settlement Scheme No.VI1I--Constitution of Pakistan (1973), Art. 199--Transfer of property--Order by which property transferred to petitioner attaining finality--Settlement Department, held, justified to allot rest of property, after deducting portion transferred to petitioner, to respondent as available property under Scheme No. VIII and petitioner could not object to allotment of property to respondent and finding of Settlement Department in that regard could not be described as without lawful authority and of no legal effect.

Maroof Ali Khan for Petitioner.

Nemo for Respondents Nos.1 and 2.

Mir Muhammad Shaikh for Respondent No.3.

Date of hearing: 20th October, 1983.

By this petition filed under Article 199 of the constitution of 1973, the petitioner seeks to impugn the order, dated 16-4-1976, passed by the respondent No-1/the Additional Settlement Commissioner, Sukkur and the order, dated 20-5-1975 of the respondent No.2/the Deputy Settlement Commissioner on the plea that the same were made without lawful authority and are of no legal effect. A declaration is also sought to the effect that the petitioner may be declared as the original transferee of the property No.Ii-C-4/A at Moro and no portion of it bears No.I1-C-4/A-1 or is available for disposal separately.

With going into the details of the litigation between the parties suffice it would be to say that the disputes between the parties in respect of transfer of certain property at Moro became subject-matter of Constitution Petition No.48 of 1970, Abdul Qadeer v. Settlement Commissioner and another and Constitution Petition No.280 of 1970, Nizamuddin and another v. Settlement Commissioner and others. These Petitions were disposed of by judgment delivered on 11th June, 1974 by Mr. Justice Dorab Patel (as he then was) whereby the Petition No.280 of 1970, filed by Nizamuddin and another, was dismissed and the other Petition bearing No.48 of 1970 was allowed. As the said judgment settled the rights of the parties in respect of the transfer of property bearing No.II-C-4/A situated at Moro, which was the subject-matter of the said petitions, it would be advantageous to reproduce hereinbelow the relevant portions of the said judgment which finally defined the property which was held to have been transferred in favour of Abdul Qadeer, to whom P.T.O. was also directed to be issued. The learned Court in the aforementioned judgment observed and held as follows:-

"DORAB PATEL, J.-- The dispute in both these Constitutional Petitions relates to a property measuring 110 square yards in Moro and bearing number 11-C-4/A. I shall refer his property as the said property and the case of all the learned counsel before me is that it is a building site."

Having defined the property as above, which the rival parties claimed the learned Judge in the aforementioned judgment first referred to the fact that the said property on C . H .Form was transferred to Nizamuddin and his brother but subsequently in 1968, the said property was put up for auction, at which Abdul Qadeer made the highest bid, which was accepted. In the litigation, which followed between the two rival parties, the appeal of Nizamuddin and his brother was dismissed by the Additional Settlement Commissioner by order passed on 19-9-1969 and while doing so by the same order, he confirmed the auction in favour of Abdul Qadeer. Against the said order Nizamuddin and his brother went in Revision to the Settlement Commissioner who dismissed it by order passed on 19-1-1970 but at the same time directed that the said property be re-auctioned. In these circumstances Abdul Qadeer filed Constitutional Petition No.48/1970 while the other Petition No.280/1970 was filed by Nizamuddin and another.

The learned Judge after referring to the facts, dismissed the Constitutional Petition No.280 of 1970 filed by Nizamuddin and his brother and then dealing with the other Petition No.48/1970 filed by Abdul Qadeer, upheld the transfer of the 'said property' in favour of Abdul Qadeer having been validly made, observed as follows:-

"...and merely because a higher price might now be obtained would not be a valid reason for setting aside the auction. In any event, no rule of provision of law have been cited to show that the auction can be set aside on the grounds given by the Settlement Commissioner or any other ground. I, therefore, allow Petition No. 48 of 1970, set aside the Settlement Commissioner's order directing a fresh auction of the said property, and I also direct that the P. T.O. for it shall be issued to the petitioner. The Petition is allowed without costs."

The above judgment passed by the High Court disposed of the two petitions which related to the transfer of Property measuring 110 square yards in Moro and bearing No II C 4/A" re erred in the Petition by the learned Judge "as the said proper". The "said property" by the operative part of the Judgment was held to have been validly transferred to Abdul Qadeer/the petitioner, and it was further directed "that the P.T.O. for it shall be issued to the petitioner (Abdul Qadeer)".

2.(i) The transfer of the said property "measuring 110 squares in Moro and bearing No.II-C-4/A" to the petitioner Abdul Qadeer and the rejection of the claim of Nizamuddin and his brother over it, was not challenged by any of the parties, by filing any appeal or petition provided by, the law. The said judgment, therefore, attained finality and the claim of the petitioner Abdul Qadeer over plot bearing No.I1-C-4/A, measuring 110 square yards situated in Moro, stood finally determined. .

(ii) It however appears that subsequent to disposal of the above-mentioned two petitions Nizamuddin filed an application on 30th May, 1974 for transfer of property now in dispute. On the same date the Additional Settlement Commissioner made an endorsement condoning the delay in filing the said application on the condition that the property applied for was available for transfer. The application was registered and a report was called. Site inspection was accordingly made and the following report was submitted:-

"The applicant Nizamuddin s/o Mehmood Khan has filed the attached B.S. form application for the transfer of the rest area of the Plot No. II-C-4 as an area of 100 Sq. yds has already been transferred to the opponent, Abdul Qadeer in open auction as per attached Writ Petitions Nos.48 and 280 of 1970, dated 11-6-1974, for which the necessary P.T.D. stands issued. Now the applicant has filed the attached form in which the total area has been shown as 858 square feet. I have inspected the spot and found that the applicant is in occupation of an area of 861-1 square feet in which 483 is a covered area having one hall and 378-1 is an open space being used as courtyard. This area is separate than the area of 110 Sq. Yds. which has already been transferred to the opponent. Thus, the applicant is entitled to retain the same. Under Schedule VIII for which the value comes to:----

95.7 Sq. Yds x 5 plus 50% Rs.480.00

Plus Rs.240.00

-------------

if approved the necessary appendix may be issued to him.

(Sd..) Accoutant

20-5-1975"

On the receipt of the above report, the Deputy Settlement Commis sioner ordered the transfer of the plot measuring 95-7 square yards to Nizamuddin, the respondent No. 3 as he was found entitled to its transfer. This order was passed by the Deputy Settlement Commissioner on 20-5-1975.

3. Against the order of transfer thus made by the Deputy Settlement Commissioner, the petitioner filed revision Petition before the Settlement Commissioner, Sukkur. The Settlement Commissioner in his order passed on 16-4-1976 observed:---

"Briefly facts leading to the dispute are that there is a plot No.II-C-4-A at Moro which is claimed to be in possession of both the parties who have been contesting each other for transfer of the same. The plot in question was transferred consequently vide order, dated 11-6-1974 passed by the Honourable High Court, Karachi whereby the petitioner was found entitled only for 110 Sq.Yds. and thus rest of the area was transferred to the respondent on his B.S. form by the D.S.C. Hence this revision Petition. "

Having noted the facts stated above which I find cannot be disputed being in accordance with the observations made in the judgment of the learned Judge of this Court given in Constitutional Petition No.48/1970 and Constitutional Petition No.280/1970, the Settlement Commissioner after recording the contentions of the Advocates for the parties, dismissed the said revision Petition holding as follows:-

"Heard the parties at length and perused the record. It is evident from the record that the petitioner was transferred only 110 Sq. Yds. and the rest of the area was available for disposal which has rightly been transferred by the Deputy Settlement Commissioner to the respondent on his B.S. form assigning it as D.S.No.II-C-4/A-1. Keeping in view the facts discussed above I find no justification to interfere with the transfer documents already stands issued to the respondent. Petition is accordingly dismissed. "

4. Against the above order passed by the Settlement Commissioner the present petition has been filed invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973.

5. I have heard the learned Advocates for the parties. Mr. Maroof Ali Khan, the learned counsel for the petitioner contended that the petitioner Abdul Qadeer is the transferee of plot bearing survey No.II-,C-4/A, situated at Moro at the auction sale held pursuant to the auction wherein this property bearing No.II-C-4/A was described as a compound owned by Hawat Rai occupied by Abdul Ghafoor and was shown, at item No.VIII of the notice of auction of evacuee properties which was scheduled to be held on 10th September, 1968. According to him, the petitioner Abdul Qadeer had purchased the property bearing Survey No.II-C-4/A irrespective of its area and thus the Settlement authorities had no jurisdiction to transfer any portion thereof by assigning the survey No.II-C-4/A-1. According to the learned counsel ass portion of the property purportedly transferred to Nizamuddin was not available and thus the Settlement authorities acted without jurisdiction in passing the impugned order of transfer in favour of Nizamuddin.

6. I, however, find that this argument of Mr.Maroof Ali Khan, the learned counsel for the petitioner cannot succeed.

It would be observed that the identity of the property transferred to the petitioner stood concluded by the judgment given in C.P. No.48 of 1970 (Abdul Qadir v. Settlement Commissioner and others) wherein the same has been described as follows:----

.... "property measuring 110 square yards in Moro and bearing No. II-C-4/A .. the said property it is a building site.

The learned Judge further ordered:---

"I, therefore, allow the Petition No.48 of 1970 set aside the Settlement Commissioner order directing a fresh auction of the said property and I also direct "that the P.T.O. for it shall be issued to the Petitioner."

The above findings as to the property measuring 110 square yards directed to be transferred to the petitioner Abdul Qadir, was allowed to attain finality. Neither any proceedings /remedy was ever taken nor the same was challenged by the petitioner at any time. The petitioner, therefore, cannot be allowed to reopen the same on the principle laid .down in the case of Murad Bibi v. Ramzan Bibi 1968 S C M R 1007.

7. In the light of the direction given in the Writ Petition No.48 of 1970, the Settlement authority was justified to hold that the respondent No.3/Nikamuddin, is entitled to transfer of the portion measuring 95-7 square yards (i.e. the portion other than 110 square yards for which P.T.O. was directed to be issued in the above-mentioned Writ Petition). The petitioner has no locus standi to challenge the transfer of excess area to' the respondent No.3 on the findings reached by the Settlement authority that the same was available property and that the said respondent is entitled to its transfer under Scheme No. VIII. These findings reached by a competent authority cannot be described as without lawful authority and of no legal effect.

8. The upshot of the above discussion is that this petition has no merits and is accordingly dismissed.

The parties are left to bear their own costs.

M.Y.H. Petition dismissed.

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