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Writ Petition No. 1305-R of 1976, decided on 15th December, 1985.

---S. 10/11--Permanent Transfer Deed--Demarcation of property- Issuance of Permanent Transfer Deed, held, would not altogether abolish jurisdiction of Settlement Authorities in matter of laying down boundaries of property. [p. 2843] A

Mst. Fatima, etc. v. Abdul Hameed Farooqi etc. 197 6 S C M R 95; Ch. Abdul Haque v. Mst. Mustaab Bano etc. 1982 S C M R 1103 and Sher Muhammad v. District Judge etc. 1983 C L C 1591 ref.

Maqbool Ahmad etc. v . Settlement and Rehabilitation Commissioner, etc. P L D 1983 S C 337 rel.

Ch. Abdul Haq v. Mst. Mustaab Bano etc. 1982 S C M R 1103 distinguished.

---Art. 185(3)--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10 & 11--Constitutional petition--Grievance in petition made only of demarcation of property--Petition not maintainable.

Mst. Sakina etc. v. Muhammad Yamin Khan P L D 1984 S C 3. rel.

---Ss. 10 & 11--Limitation Act (IX of 1908), S.3--Appeal--Limitation- Appeal filed by respondent before Additional Settlement Commissioner against order of Deputy Settlement Commissioner, dismissing application for demarcation of property--Petitioner raising objection that appeal filed by respondent was barred by time and, therefore, could not be entertained and decided by Additional Settlement Commissioner--Decision .on point involving certain facts like determining when respondent made application for supply of copies, when same were deliverable and same were in fact delivered--Such data not being available on file, no opinion could be formed--Appeal filed by respondent, held, could not be assailed on point of limitation.

Hakim Muhammad Buta etc. v. Habib Ahmad etc. P L D 1985 SC. 153 distinguished.

Ch. Mushtaq Ahmad Khan and C.A. Rehman for Petitioner.

Sh. Abdul Manan and A.R. Shaukat for Respondents.

Dates of hearing: 9th, 10th and 11th December, 1985.

Mst. Anwar Begum, respondent, made an application on 7-12-1964 to the Deputy Settlement Commissioner for demarcation of her property No. B-XXII-10-S-53, qua that of the petitioner denoted as B-XXII-7-S-4. The petition was dismissed on 8-4-1965 on the ground that after issuance of P.T.D. in her favour, there was no jurisdiction available to the Settlement Authorities to lay down its boundaries. She preferred an appeal on 13-11-1965 but the same was also dismissed on 14-2-1966 (Annexure 'J'). Her revision petition there from was likewise dismissed on 16-6-1966 (Annexure 'K') on the ground that the powers under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 could be exercised suo motu and not at the behest of any individual. This order was assailed in Writ Petition No. 1052-ft of 1966. It was accepted holding that even a private individual could ask for exercise of those revisional powers, and the matter was remanded, whereupon the impugned order, dated 31-3-1976 (Annexure 'A') was passed determining the extent of the respondent's property Of course, it affected adversely the petitioner Mst. Ghulam Fatima, as some portion in her possession was found to be a part of the respondent's house.

2. The present writ primarily proceeds upon the assumption that after the issuance of the P.T.D. in favour of the respondent and all the more the repeal of Laws, there was no power available with the Settlement Authorities to demarcate the properties. Reliance was placed upon Mst. Fatima, etc. v. Abdul Hameed Farooqi, etc. 1976 S C M R 95 and Ch. Abdul Haque, v. Mst. Mustaib Bano, etc. 1982 S C M R 1103 , wherein the rule laid down was that after issuance of the P. T. D., the property goes out of the pool leaving behind no jurisdiction whatsoever with the Settlement authorities to deal with it for any purpose. In this behalf, even the order of remand passed by this Court in the earlier writ petition was claimed to be not much effective to confer jurisdiction which had otherwise been abolished. If at all, according to the petitioner, the jurisdiction vested in a civil Court.

3. Secondly, it was contended that the appeal filed before the Additional Settlement Commissioner on 13-11-1965 against the order dated 8-4-1965 passed by the Deputy Settlement Commissioner being patently barred by time, was illegally entertained as also decided by him and hence as a corrollary, all subsequent orders passed were void.

4. In reply, Mr. Abdul Manan, Advocate, for the respondent urged that since the petitioner was party to the previous writ, she should have challenged it further and since she accepted the same, it was not open to her now to contend that there lay no jurisdiction with the Settlement Commissioner to order the impugned demaracation. Additionally, he submitted that issuance of P.T.D. did not always take away the jurisdiction and placed reliance upon Maqbool Ahmad etc. v. Settlement and Rehabilitation Commissioner, etc. P L D 1983 S C 337 and Sher Muhammad v. District Judge, etc. 1983 C L C 1591 where like the present case, a room was held to be a part of the other house. He further contended vehemently that the present writ petition challenging the demarcation did not at all lie and for that, referred to Mst. Sakina, etc. v. Muhammad Yamin Khan P L D 1984 S C 3. In regard to the plea of limitation against appeal entertained by the Additional Settlement Commissioner, he maintained that it involved certain facts like determining when she had made the application for copies, when were those made deliverable and when the same were in fact collected. He emphasised that there is no such data on the present file and, therefore, to allow the petitioner to raise this plea, was presumptuous.

5. Considering the respective contentions of the parties, I am not persuaded to accept the view that issuance of the P.T.D. would altogether abolish the jurisdiction of the Settlement Authorities in the matter of laying down boundaries of the properties. This is what PLD 1983 S C 337 laid down, and it being later in .time, will have to be preferred to 1982 S C M R 1103. There was no question of conferring jurisdiction upon the Settlement Authorities by the aforesaid order of remand as they appeared to have already been equipped with it for such peripheral matters as determining the extent of disputed boundaries. The Karachi view in the cited case of Sher Muhammad also seems to be based upon this consideration. The objection is accordingly repelled.

6. Further, there is no room to entertain a writ petition when grievance is made only of demarcation. P L D 1984 S C 3 laid down this rule. On this sole ground, the present writ is not maintainable.

7. Equally, there is considerable substance in the submission of the learned counsel for the respondent that the appeal filed before the Additional Settlement Commissioner, could not be assailed despite, the dictum in Hakim Muhammad Buts, etc v. Habib Ahmed, etc. P L D 1985 S C 153, because any decision on it has to depend upon certain facts which were not proved here. Of course, there may be no waiver, yet it had to be proved for a fact as to when necessary steps were taken by the respondent for obtaining copies etc., and filing the appeal. In absence of any data, in that context, any opinion shall be without basis.

8. For all the above reasons, the writ petition is dismissed. There shall, however, be no order as to costs.

M. Y. H. Petition dismissed.

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