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Civil Revision No. 30 of 1984, decided on 21st August, 1986.

(a) Civil Procedure Code (V of 1908)-

-- S. 115 - Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10 & Sched.-Permanent Transfer (Houses and Shops) Rules, 1961 - Settlement Authorities become functus officio after issue of P. T. D. and do not have power even to correct clerical errors-Order of issue of P. T. D., would be void, if same obtained by fraud, or issued by authority having no jurisdiction or issued in contravention of any provision of law-No allegation that authority which issued P. T. D. had no such powers nor any provision of law pointed out which was violated in issue of P. T. D.-Legality of issue of P. T. D. not challenged in Trial Court in pleadings or in evidence nor such pleas raised before Appellate Court-Petitioner could not be allowed to raise pleas of fact in revision-View arrived at by Court below that Settlement Authori ties, after issue of P. T. D. had no power to cancel same, even if held to be void, could not be said to be erroneous-Impugned order, held, would not call for any interference by High Court in exercise of its revisional jurisdiction.

1983 S C M R 40 Yousif Ali v. Muhammad Aslam Zia and others

P L D 1958 S C 104 ; Muhammad Anwar v. M. A. Wasti 1975 S C M R 372 and Chand Begum v. Settlement Commissioner and another 1978 C L R 2 ref.

1974 S C M R 8 ; 1981 C L C 1644 ; 1973 S C M R 624 and Ali Muhammad v. Haji Hussain P L D 1975 Kar. 971 rel.

(b) Civil Procedure Code (V of 1908)-

-- S. 115-Revision-Revisional jurisdiction of High Court could be invoked only in cases which involved illegal assumption, non-exercise, or illegal exercise, of jurisdiction by Courts below, or where there was apparent material irregularity on face of record.

M. A. Rashid for Appellant.

Abdul Naeem for Respondents Nos. 4 to 7.

Date of hearing : 21st August, 1986.

This revision petition is directed against the judgment and decree of learned First Additional District Judge, Sukkur dated 13-2-1984 confirming the judgment and decree passed by learned Senior Civil Judge, Sukkur on 30-1-1982 in Civil Suit No. 221 of 74.

The dispute between the parties is over residential premises built on the upper floor of shops bearing C. S. Nos. D-7 to D-10. Respondents Nos. 1 to 3 claim through their predecessor in title Noor Muhammad, who was transferred Shop No. D-8 along with the disputed premises and such P. T. D. was issued in his favour. The petitioner's case is that Noor Muhammad filed C. S. Form for Shop No. D-8 only, which only was transferred to him. Admittedly Shop Nos. D-7, and D-10 were put to auction, which were purchased by one Syed Ali and along with shops he was also transferred the upper residential premises in question. It is further alleged by petitioner that after this purchase by Syed Ali, on the application of Noor Muhammad, in November, 1962, for the disputed premises were transferred to him by Deputy Settlement Commissioner and such P. T. D. was issued in his favour on 20-11-1964. In 1967 said Sayed Ali moved the D. S. C. for the cancellation of the transfer of the disputed premises to Noor Muhammad, which application was dismissed. His appeal was also dismissed by Additional Settlement Commissioner. He filed revision petition, which was decided by Settlement Commissioner on 19-6-1969 holding that neither Syed Ali nor Noor Muhammad were entitled to the transfer of the disputed premises and directed that it may be disposed of by public auction. In the auction, the disputed premises were purchased by one Abdul Qayoom (respondent No. 7) who surren dered the same in favour of tine petitioner and P. T. D. dated 17-12-1969 was issued in favour of petitioner

After issue of P. T. D. the petitioner's moved ejectment application against respondents Nos. 1 to 3, which proceedings are still pending. Respondents Nos. I to 3 filed the suit for declaration, that order dated 19-6-1969 was of no legal consequence and subsequent proceedings were void ab initio. The suit was decreed. Appeal was dismissed and hence this revision petition.

I have heard the learned counsel for the parties at length and have also perused the record and proceedings of the lower Courts.

The main contention that weighed with the learned Courts below, was that after the issue of P. T. D. in favour of Noor Muhammad, the Settlement Authorities had no jurisdiction revisional or otherwise over property except to correct clerical errors.

It is contended by Mr. M. A. Rashid, learned counsel for the petitioner, that the very issue of P. T. D. in favour of Noor Muhammad was obtained by fraud and was illegal and void ab initio therefore, the Settlement Commissioner had jurisdiction in revision proceedings to cancel such P. T. D. and to correct the illegality committed by subordinate authorities. In this context it will be relevant to reproduce the relevant part of the order of learned Settlement Commissioner.

"The petitioner's predecessor-in-interest (Sayed Ali) purchased Shops Nos. D-7 and 9 and 10." He cannot get more than these three shops. Residential premises which are separate and independent on the first floor, cannot be called shop. Hence he and thereafter the petitioners are not entitled for the transfer of this disputed upper floor premises.

Similarly the respondent (Noor Muhammad) did not apply for its transfer through his C. S. Form. He was admittedly not in possession of these residential premises on pr before the 20th December, 1958. He, therefore, could not get it under Sch. 1. He is for the same reasons not entitled in any other scheme. The transfer of these residential premises in the first floor of this property is contrary to law and is set aside." . . . . . . .

The upper floor which is not transferable to either of the parties, is transferred to Evacuee pool for disposal according to law, which obviously appears to be through public auction."

It is submitted by the learned counsel that in Para. No. 3 of plaint the contesting respondents had alleged, that Noor Muhammad was transferred the Shop No. D-8 and upper portion house above Shops Nos. C. S. D-7 to 10 by the Deputy Settlement Commissioner under P. T. O. Order No. 084129 dated 10-12-1959. 1n the written statement the petitioner had denied this averment. As such the burden of proof shifted upon the respondent who did not produce this P. T. O. The petitioner has produced in this petition the certified copy of this P. T. O. Annexure A' which shows that the initially only Shops Nos. D 8 was transferred to Noor Muhammad. It further shows that D-8 and upper portion of Shops Nos, D-7 to 10 was transferred by correction made by order of the Deputy Settlement Commissioner dated 8-11-1962. He has also produced certified copy of C. S. Form filed by Noor Muhammad Annexure A'-2 where in the request is for transfer of Shop No. D-8 only. He has also produced the sample copy of application of Noor Muhammad for the transfer of the house over Shops Nos. D-7 to D-10 and simple copy of order of the Deputy Settlement Commissioner dated 8-11-1962. Mr. M. A. Rashid concedes that these documents were not prodaced before the trial Court or the appellate Court, therefore, these documents cannot be received in this Court by way of additional evidence.

The real questions at issue appear to be :-

(1) Whether the order showing P. T. D. in favour of Noor Muhammad was an illegal order and void ab initio

(2) Whether after issue of such P. T. D., the Settlement Authorities had no jurisdiction to cancel it.

I will deal with the second question first.

In 1983 S C M R 40 it has been held that the orders against statutory instructions were void ab initio and were rightly ignored.

In the case Yousif Ali v. Muhammad Aslam Zia and others (P L D 1958 S C 104) it has been observed :-

"Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other. authorities, the whole series of such orders, together with the superstructure of rights and obligation built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded" . . . . . . .

In the case of Muhammad Anwar v. M. A. Wasti (1975 S C M R 37;) it has been observed :-

"The second limb of the argument, namely, that after the issuance of the' P. T. D. in the petitioner's favour, the matter could not have been re-opened, conveniently overlooks the further well-settled proposition, that in the circumstances of the case, the question whether P. T. D. in favour of the petitioner was issued in proper exercise of the Authority of Settlement Commissioner, is open to judicial scrutiny. There is abundant authority in support of the view that the deletion of rule 7 of 1961 Rules, does not foreclose the jurisdiction of the Settlement Authorities or for that matter the High Court to uncover the cases of fraud or illegalities, even after the issue of P. T. D.".

In case of Chand Begum v. Settlement Commissioner and another (1978 C L R 2) it was held.

"Mere Issuance P. T. D. on basis of order transferring the shop and residential premises passed by incompetent authority against law does not confer any right of P. T. D.-holder. P. T. D. liable to cancellation by Settlement Commissioner in exercise of revisional powers."

However different view has been taken in the following cases in 1974 S C M R 8, it is held :-

"Property goes out of compensation pool after issuance of P. T. D. Revisional jurisdiction of Settlement Authorities cannot be exercised in respect of property after issuance of P. T. D."

In 1981 C L C 1644, it was observed fraud vitiated most solemn proceedings, yet after issuance of P. T. D. no powers are left in Settlement Authorities to correct clerical mistake in P. T. D. and aggrieved person could only seek declaration in the Civil Court. In 1973 S C M R 624, it has been held that after deletion of rules 6 and 7 of Permanent Transfer (Houses and Shops) Rules, 1961, there was no power left in the Settlement Authorities to correct even the clerical mistakes in P. T. D. Petitioner could however seek declaration in the Civil Court in the circumstances. Similar view was taken by D. B. of this Court in case of Ali Muhammad v. Haji Hussain (l).

The legal position that emerges is that after issue of P. T. D. the Settlement Authorities become functus officio and they do not have the power even to correct clerical errors. However, where the order of the A issue of P. T. D. is held to be void, in certain cases, the Settlement Authorities are held to have powers to cancel such a P. T. D. and in some cases, it is held, that they have no powers and the aggrieved party may have recourse to the Civil Court.