This Revision Application under section 115, Cf. P. C. Is directed against the judgment and decree dated 11th April 1973 passed by the III Additional District Judge, Hyderabad, in Civil Appeal No. 208/71 and arises in the following circumstances.
2. Applicants Mst. Noor Jehan and her sister Mst. Ejaz Fatma filed a joint C. H. Form as claimant displaced persons, for transfer of a building in city survey Ward E, Fakir Ka Pir, Hyderabad, comprising one residential upper Floor No. E 102/A and four shops on the ground Floor Nos. E/720 to F/723. The form was allowed by the Assistant Settlement Commissioner, Hyderabad who issued a P.
T. O. On 20-11-1959 for the whole building. The Deputy Settlement Commissioner made a sue motu reference to the Additional Settlement Commissioner. Hyderabad that the transfer of four shops and a residential floor as one unit was irregular. The Additional Settlement Commissioner agreed with him and ordered that the P. T. O. Issued in favour of the applicants be modified and the transfer be allowed only for the first Door and the four shops on the ground-floor be publicly auctioned. Against this order, the applicants filed a revision before the Settlement Commissioner on 19-9-1960 under section 20(3) of the Displaced Persons (Comp. & Rehab.) Act, 1958. While the revision was pending, the four shops were put to auction and the shop in dispute, No. E/1720, was purchased by Umrao Khan, the husband of Atst. Batool Bi on 30 September 1960 and a P. T. O, was issued to him on 25-1-1961. Thereupon, the applicants impleaded Umrao Khan and other auction purchaser in the revision. The revision was ultimately disposed of by the Settlement Commis-- sioner on 11-12-1962. He held that as one shop on the ground floor could be combined with the residential first floor which was in the occupation of the applicants, they could be transferred asth one unit. Therefore, he directed that the auction of Shop No. E/1720 be treated as cancelled and it be transferred to the applicants who should pay the same price as charged from the auction purchaser. It appears that despite this order the Settlement Department issued P. T. D. To ATst.
Batool Bi on 12-12-1962.
3. Being dissatisfied with the revisional order in so far as it refused transfer of the other three shops to them, the applicants filed Writ Petition No. 13/63 in the High Court on 4th January 1963, impleading Umrao Khan and also the other auction purchaser as respondents. During the pendency of the writ petition the disputed shop was purchased by Syed Muhammad Hassan Shah, the respondent No. 1 in suit by registered sale deed dated 3-2-1963. Umrao Khan died in November 1.963, and his widow Mst. Batool Bi was joined as legal representative in the writ petition. The writ petition was ultimately dismissed by the High Court on 6 September 1965. The applicants then approached the Settlement Department to implement the order passed by the Settlement Commissioner regarding transfer of the shop to them which had been upheld by the High Court.
Additional Settlement Commissioner issued a letter to Mst. Batool Bi on 14th, May 1966 (Exh. 24) directing her to appear before him and bring with her the P. T. D. Document for the shop for correction as it was issued to her by mistake. She failed to appear and on 16th July 1966, the Additional Settlement Commissioner, Hyderabad ordered that the P. T. D. Issued in her favour be cancelled as it was obtained by fraud. As respondent No. 2 refused to hand over possession of the shop to the applicants, they filed Civil Suit No. 143/67 in the Court of the VIth Extra Joint Civil Judge, Hyderabad, out of which the present Revision arises, against Mst. Batool Bi, Syed Muhammad Hassan Shah and one Khalil Ahmad, praying for a declaration that the applicants are lawful owners of me Shop, E/1720 and that the sale deed executed in favour of the respondent No. 1 was illegal, void and ineffective. It was also prayed that possession of the shop be restored to them.
4. Mst. Batool Bi did not defend the suit. A joint written statement was filed on behalf of the other defendants in which it was pleaded that Mst. Batool Bi was not a party to the revision proceedings before the Settlement Commissioner and hence the order passed for cancelling the auction sale of the shop was null and void and without jurisdiction. It was further pleaded that the P. T. D. Was validly issued in favour of Mst. Batool Bi on 21-12-1962 and that the Settlement Commissioner had no jurisdiction to cancel the same after it was issued. Finally, it was pleaded that the respondent No. I was a bona fide purchaser for consideration. Accordingly they prayed that the suit be dismissed.
5. The Court framed issues and examined Feroze Ali, Attorney of the applicants. The respondents failed to produce evidence anal their side was closed by the Court. The trial Court decreed the suit of the applicants holding that after the auction of the shop was ordered to be cancelled on 11-12- 1962, the P. T. D. Issued to Mst. Batool Bi a few days later on 21-12-1962, was void and the shop could not be legally transferred to the respondent No. 1. In the circumstances, no title could pass to the purchaser.
6. Being aggrieved by the decree, the respondents filed first appeal in the Court of the III Additional District Judge, Hyderabad. He allowed the appeal on the short ground that after deletion of rule 7 of the Permanent Transfer Rules, 1961, the Settlement Authorities were not competent to cancel the P.
T. D. On the ground that the transfer of the shop was obtained by fraud or false representation. He relied on the observations of Single Judge of the Lahore High Court in the case of Abdul Karim v.
Shaikh Muhammad Rafiq and others (PLD 1966 Lab. 33) to the effect that after deletion of the said rule 7, the Settlement Authorities could no longar deal with cases in which transfers have been obtained fraudulently or by misrepresentation. In the result, he held that the order of the Additional Settlement Commissioner dated 16-7-1966 cancelling the P. T. D. Was ultra virea and illegal and that Mst. Batool Bi was competent to sell the shop to the respondent No. 1.th
7. The main question, which arose for consideration in the suit, was whether the Settlement Department had jurisdiction to issue P. T. D. In favour of Mst. Batool Bi on 21-12-62 in respect of the shop in dispute in violation of the order passed by the Settlement Commissioner, a few days earlier on 11-12-1962, cancelling the auction of the shop. Mr. Akhtar Mahmud submitted that the appellate Court did not consider this question at all, which has resulted in failure to exercise jurisdiction vested in him. He referred to rule 3(1) of the Permanent Transfer Rules 1961. Which provides that the permanent transfer of property provisionally transferred under the Actor a Scheme can only be made after the order bf transfer has become a final order. "Final Order" has been defined in rule 2(b) of the said rules to mean an order in respect of the entitlement of the proposed or provisional transferee passed by a competent Settlement Authority against which no appeal, revision or any judicial proceeding before a competent Settlement Authority is pending. Reading the two provisions together Mr. Akhtar Mehmud submitted that the order dated 30th September 1960 for transferring the shop to Mst. Batool Bi as auction purchaser (and the subsequent issue of the Provisional Transfer Order, P. T: D. On 25-1-1961), was challenged by the applicants in revision to the Settlement Commissioner and, therefore, was not a final order. In fact, the auction of the shop was cancelled and consequently, the basis for the issuance of a permanent transfer document to Mst.
Batool Bi thereafter, on 21-12-1962, was in flagrant violation and a nullity and wholly without jurisdiction. In these circumstances, .4 it is not understood how the Settlement Department could validly issue P. T. D. In respect of the shop, which presumably led to the inference of fraud and collusion as alleged by the Additional Settlement Commissioner in his order dated 16-7-1966 (Exh.
25).
8. The reply of Mr. Adil Hussain Khatri, learned counsel for respondent No. 1, was that the order passed by the Settlement Commissioner in revision on 11-12-1962 was void as far as Mst. Batooi Bi was concerned, as she was not a party to the Revision Application. No copy of the Revision Application was produced by him in support of his submission.
But the order of the Settlement Commissioner shows Ummo, the husband of Mst. Batool Bi as opponent No. 2 Umrao was also a respondent in the Writ Petition No. 13/63 and on his death in November 1963 his widow Mst. Batool Bi was brought on record. Assuming that the shop was purchased at the auction in the name of Mst. Batooi Bi and that she was the party concerned, service of the revision upon her husband living with her was not improper. Although service was effected, the revision was not contested. The respondents in this appeal, on whom lies this burden, failed to lead evidence in the trial Court, as their side was closed. Nevertheless, they could have applied for summoning the settlement record in the first appellate Court as also in the present appeal. I am, therefore, not inclined to accept this submission of Mr. Khatri.
9. As I have held that the issue of P. T. D. In favour of Mst. Batool Bi on 21-12-1962 was a nullity and without jurisdiction, the question whether the P. T. D. Could be cancelled by the Settlement authorities on the ground of fraud or misrepresentation becomes an academic question. It is, therefore, not necessary to discuss the case law on this question. The Supreme Court has held in S. Anwar Hussain Sant v. Sarfraz Ahmad and others (PLD 1971 SC 669) that there can be no dispute with the general principle that after title has passed to the person, in whose favour a P. T. D. Has been issued, the Settlement authorities become functus officio to cancel the P. T. D. On the ground of fraud or misrepresentation after deletion of rule 7 of the Permanent Transfer Rules. The legal position was reviewed by Mushtaq Hussain, J., (now Chief Justice of Lahore High Court) in Muhammad Yaqub v. Settlement Commissioner, Lahore Division (PLD 1975 Lab. 1558) wherein it was observed that the jurisdiction of the civil Courts and in particular the constitutional jurisdiction of the High Court, is not in any way, affected by the issuance of a P. T. D. Muhammad Gul, J., of the Supreme Court observed in Muhammad Anwar Khan v. M. A. Wasti, Settlement and Rehabilitation Commis--sioner, Peshawar and others (1975 SCMR 372) that it was a well-settled proposition that the question whether P. T. D. Was issued in prop ;r exercise of the authority of the Settlement Department is open to judicial scrutiny. As the P. T. D. Was void, respondent No. 1 did not acquire a valid title to the shop by purchase.
10. For the foregoing reasons, I would allow this Revision application and set aside the impugned judgment and decree. The decree of the trial Court is restored. Costs will be borne by each party.