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Civil Petitions Nos. 328‑K and 331‑K of 1985, decided on 7th January, 1986.

(Against judgment, dated 5‑5‑1985 of High Court of Sind, Karachi).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10(2)‑‑Petition for leave to appeal‑‑Transfer of property‑‑correspondent filing CH and 'P' Form for transfer of a house on plot in dispute‑‑Delay in filing form 'r" condoned by Settlement authorities‑‑Required appendices were, thereafter, prepared and duly signed by Deputy Settlement Commissioner‑‑‑ Such appendices were not issued to respondent and ultimately her application was rejected for want of prosecution and property in dispute transferred to petitioner‑ Settlement Authorities not contesting that said appendices which existed on record were not duly completed in all respects and signed by appropriate competent officer or that there was not proper form or sanction or condonation of delay or entitlement order in favor of respondent‑‑High Court observing that all formalities which were necessary for preparation and issuing of appendices had been duly completed‑‑Once such documents were duly prepared and there existed no bar or impediment, respondent, held, became entitled to property and vested with a right to it‑‑Facts of case showing that respondent had been pursuing matter for seeking legal remedy by filing constitutional petitions and civil suits in respect of her rights and no delay taking place at any stage but her grievances continued and her efforts were thwarted and she was denied legal remedies under cover of authority which was not legally possessed and not legally exercised‑ High Court exercising equitable jurisdiction in favour of respondent on just and proper considerations by allowing transfer of property in dispute in her favour‑‑Leave to appeal against order of High Court refused in circumstances.

Mian Rafi‑ud‑Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others P L D 1971 S C 252 ref.

Nasim Farooqui, Advocate Supreme Court, Faizanul Haq, Advocate‑on‑Record for Petitioner (in Civil Petition No. 328‑K of 1985).

Khalid M. Ishaque, Advocate Supreme Court with A. Aziz Khan, Advocate‑on‑Record for Respondents.

Shahanshah Hussain, Advocate Supreme Court with Faizanul Haq, Advocate‑on‑Record for Petitioner (in Civil Petition No. 331‑K of 1985).

Khalid M. Ishaque, Advocate Supreme Court with A. Aziz Khan, Advocate‑on‑Record for Respondent No. 4.

Date of hearing: 7th January, 1986.

‑‑By two separate petitions leave to appeal is sought against the judgment of the Sind High Court, dated 5‑5‑1985 whereby a constitutional petition filed by the respondent No. 4 was allowed and the Deputy Settlement Commissioner, Karachi, was directed to treat her as transferee of the property and to issue to her appendices so that she may pay the price of the plot and obtain the transfer documents.

In the year 1970 Mst. Niazi Begum, respondent No. 4 filed a CH form for the transfer of a house over a plot of land measuring 1040 sq. yds. in Garden East bearing No. GRE 2/2. She was asked to file a 'P' or plot form which she did on 7‑10‑1970. Her eligibility and entitlement was examined by the Deputy Settlement Commissioner (Inquiries) who found it in order. However, for condonation of the delay and approval of the formula for working out the price he submitted the case to the Settlement Commissioner on 7‑10‑1970. After obtaining another report from the Deputy Settlement Commissioner, dated 18‑11‑1970 (not placed on record) the Office Superintendent communicated the condonation of the delay in filing the 'P' form. The three appendices were thereafter, prepared and duly signed by the D. S. C. but they were not issued to the respondent No. 4 and ultimately by an order, dated 11‑2‑1974 the Deputy Settlement Commissioner rejected her application for want of prosecution and directed that the property should be disposed of according to rules. She filed a review petition against this order which was dismissed on 29‑3‑1974 as incompetent. The property was thereafter transferred by the Chief Settlement Commissioner with the approval of the Provincial Government under section 10(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to Mr. W.H Abbasi, the petitioner before us in Civil Petition No. 331‑K of 1985. She challenged this by a constitutional petition (C.P. No. 1238 of 1974) but withdrew the same on 20‑8‑1976 and filed a civil suit (No. 488 of 1976) which was dismissed under Order VII, Rule 11 as incompetent. In the meantime. She was forcibly dispossessed from the property at the behest of Mr. Abbasi ostensibly under the orders of the Chief Minister of the Province. She challenged it by a constitutional petition (C.P. No. 1204 of 1974) but the Provincial Government took up the position that it was not under its order that she was dispossessed. Whereupon she withdrew the constitutional petition and instituted a civil suit No. 103 of 1975 under section 9 of the Specific Relief Act which was decreed in her favour and restoration of the possession was ordered. While the restoration of possession was taking place a notification under Land Acquisition Act was issued on 29‑5‑ia75 acquiring this property. She challenged it by a constitutional petition (C.P. No. 594 of 1975) and that notification was withdrawn. Instead proceedings under the L.P.R. were taken in respect of this property on 15‑8‑1975 which were challenged by the respondent No. 4 by a constitutional petition (C.P. No. 914 of 1975) and when the Defence of Pakistan Rules stood withdrawn in 19'18 the proceedings in respect of this property under that law also stood withdrawn. In this background of litigation, the petitioner institute the constitutional petition cuallen6ing the rejection of her form and claiming that she was the transferee of the plot and the intermeddling of the Provincial Government and the Settlement authorities for the benefit of Mr. Abbasi and subsequently the other petitioners were all without lawful authority and of no legal effect.

The Settlement authorities did not at all contest the constitutional petition nor does it appear that at any stage they filed comments with respect to the allegations made in the constitutional petition though the Chief Settlement Commissioner, the Settlement Commissioner and the Deputy Settlement Commissioner had been impleaded in the petition. It is only Mr. Abbasi who contested the petition and it appears that the other petitioner came i to the arena on the basis of the alleged oral gift made in its favour of Mr. Abbasi.

The learned Judge in the High Court examined all the grounds taken by the petitioners including those of laches, want of locus standi and held that the transfer in favour of respondent No. 4 had matured that she had been relentlessly pursuing her remedies in good faith and that the respondents had without lawful authority cancelled her entitlement and were not justified in refusing her the appendices duly prepared and completed and kept in the office of the Deputy Settlement Commissioner.

The learned counsel for the petitioner has apart from the ground of laches and bar of res judicata contended that the respondent No. 4 had never become the transferee of the property and only her application for transfer was pending and as such she could not in view of the decision of this Court in Mian Rafi‑ud‑Din and 6 other. v. The Chief Settlement and Rehabilitation Commissioner and 2 others P L D 1971 S 252 claim any vested right in the property. Besides, in instituting the constitutional petition challenging the refusal of transfer to her and the transfer in favour of Mr. Abbasi she had inordinately delayed her claim and it could not be allowed by the High Court.

We have attended to all aspects of the case and heard the learned counsel representing the two petitioners. As the Settlement authorities have not at any stage contested or commented on the factual aspect of the case we are left to the admitted facts as they appear on the record. The three appendices duly completed in all respects and signed by the appropriate competent officer existed on the record. If it was to be pleaded that there was no proper form or sanction or condonation of delay or entitlement order it was for the Settlement authorities in particular to demonstrate and prove it. In the absence of it, it will lie presumed and was rightly presumed by the learned Judge in the High Court that all the formalities necessary for preparation and issuing of the appendices had been duly completed. Once these documents were prepared and there was no bar or impediment she became entitled to the property and vested with a right in it. The subsequent consideration of the form cannot be of avail, to the petitioner because there was no basis for it arid also because all the necessary inquiries had already been completed and there is no indication what further inquiry was sought to be made.

The facts of the case further show that the petitioner instituted five constitutional petitions and two civil suits in respect of her rights and all one after the other, no inordinate delay taking place at any stage. Keeping in view the continuity of her grievance and the reckless manner in which her efforts, were thwarted and the manner in which actions taken were disowned all establish that she had been desperately running, from pillar to post seeking her legal remedies and site was being denied it under the cover of authority which was not legally possessed or in any case was not legally exercised. We find that the equitable jurisdiction of the High Court has been exercised on just and proper considerations and no useful purpose will be served by further examining the contentions. Leave to appeal is, therefore, refused in both the petitions.

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