' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- The above listed petitions for leave to appeal call in question the judgment, dated 31st October, 2001, therefore, we intend to decide them by instant common order.
2. The facts giving rise to these petitions are that vide PTO dated 8th January, 1960, evacuee property being Bungalow No,22/38, Old Civil Lines, Sargodha, equal to area measuring 27 Kanals, 4 Marlas, was transferred in favor of the predecessors-in-interest of the respondents Nos.2-3 in earmarked scheme. Later on predecessor-in-interest of petitioner Muhammad Shabbir entered into an association with the transferees to the extent of half of the total area. The transaction was duly allowed by the competent authority on 13th June, 1960 and revised PTD was issued on 11th March, 1961, followed by another PTD dated 12th May, 1961. It may be noted that later on in pursuance of report of an Overseer of the Department out of total area of 27 Kanals, 4 Marlas, 14 Kanals was shown to be transferred in favor of the predecessors-in-interest of respondents Nos.2- 3, whereas an area of 13 Kanals, 4 Marlas was shown as excess area free of cost available for transfer.
3. It is noteworthy that originally one Qureshi Abdullah Shah local was in occupation of the property, therefore, his son Khalid Shah vide an application dated 27th September, 1960 applied for the transfer of the excess area of 13 Kanals, 4 Marlas on the basis of possession of his predecessor- in-interest i,e, Qureshi Abdullah Shah. His application was dismissed by Additional Settlement Commissioner on 29th September, 1960. The review petition submitted by him was also dismissed by the Additional Settlement Commissioner on 29th May, 1962. His claim was that he is entitled for the transfer of the property being in its possession as well as for the reasons that his father Qureshi Abdullah Shah has submitted L.H. Form for the transfer of the same. The Additional Settlement Commissioner while dismissing review petition on 29th May, 1962 observed that the value of the property was more than Rs, 10,000; therefore, it cannot be transferred to him. Feeling dissatisfied from the order of the Additional Commissioner, said Khalid Shah along with other legal heirs of Qureshi Abdullah Shah and others filed an appeal which was dismissed by the Settlement Commissioner on 24th April, 1967 with the observation that since the value of the property is more than Rs,10,000, therefore, no LH Form even would lie for the transfer of the property as the form shall be deemed to have been rejected. Against the order of Deputy Settlement Commissioner, Khalid Shah and others preferred Writ Petition No,773-R of 1962 which was dismissed by the High Court on 5th December, 1973. Petition for leave to appeal was also filed which was also dismissed by this Court on 19th October, 1974. Statedly later on he also filed a suit but without any success. Having failed before all the forums noted hereinabove again on 17th May, 1976, Khalid Shah and others approached the Deputy Settlement Commissioner with the averments that their applications under Schemes Nos.6 and 8 have not been disposed of. Accordingly, Deputy, Settlement Commissioner asked for a report on 29th June, 1976 from the Settlement Inspector. The report was duly obtained by the Deputy Settlement Commissioner, after getting inspected the site from the Settlement Commissioner and on 7th December, 1976 and an area of 12 Kanals was ordered to be transferred to them. The petitioners and the respondents through their predecessors-in-interest challenged this order by filing Writ Petition No,744-R of 1977, which was allowed and case was remanded to the competent authority for disposing of the alleged Form of Khalid Shah and others.
The order of the remand was maintained by this Court as leave to appeal was declined on 13th October, 2001. Thus, in pursuance of remand order of the High Court dated 6th December, 1980 the Deputy Settlement Commissioner dismissed the claim of Khalid Shah and others vide order, dated 24th April, 1983, observing that the total area of the Bungalow was 31 Kanals, 11 Marlas, out of which 4 Kanals have already been auctioned in favor of Maj. Abdul Aziz and only an area of 27 Kanals and 4 Marlas was left for transfer. The successful drawees are eligible for the transfer of 13 Kanals and 4 Marlas as already measured by the Overseer on 3rd September, 1960, and approved by the Deputy Settlement Commissioner on 31st February, 1961 and by adding another 500 square yard, as marginal adjustment, the total area admissible comes to 13 Kanals and 3 Marlas as excess. It was also observed that under instructions on the subject, no excess be allowed to the transferees and excess area is to be disposed of after cutting into small plots. It is also important to note that in respect of claim of Khalid Shah and others, it was observed that LH Form of Qureshi Abdullah Shah did not lie in the property in question, therefore, it was rightly held to have been disposed of by the District Judge/ Settlement Commissioner vide its order, dated 24th April, 1967, which order was later on confirmed by the High Court and Supreme Court and that the transfer by way draw of lots in favor of respondents was quite regular, lawful and in order.
' It is pertinent to note that Deputy Settlement Commissioner also held that the petitioner was not eligible for transfer of the excess area of the bungalow under the Reservation Scheme nor any order for such a transfer is proved to have been passed on 27th November, 1962 by the then Additional Settlement Commissioner and Rehabilitation Commissioner. The order of the Deputy Settlement Commissioner was challenged separately by the petitioner being predecessor-in- interest of Chaudhry Phool Muhammad as well as by Khalid Shah and others by invoking Constitutional jurisdiction of the High Court as they filed Writ Petitions Nos.189-R, 195-R, 196-R, 249- R, 247-R of 1983 and 302-R of 1985 as they claim themselves to be eligible for the transfer of the land being in possession of the property or having entered into the association with the successor- in-interest of Qureshi Muhammad Abdullah Shah. The writ petitions referred to hereinabove have been dismissed by the learned High Court vide impugned judgment as such instant petitions have been filed for leave to appeal.
4. It is to be noted that learned counsel in Civil Petitions Nos.325-L, 348-L and 386-L to 388-L of 2002 informed that Khalid Shah and others being legal heirs of Qureshi Abdullah Shah have not challenged the order of the High Court as during the pendency of the petitions before the High Court, Khalid Shah had died and successors-in-interest have pot shown any interest to challenge the impugned order.
5. Civil Petition No,194-L of 2002 has been filed by the petitioner Muhammad Shabbir son of Ch. Phool Muhammad claiming transfer of excess area measuring 13 Kanals, 4 Marlas. It is contended on his behalf by the learned counsel that as per circular dated 12th July, 1960, he along with the successor-in-interest of Muhammad Khalil and Abdul Ghafoor i,e, respondents Nos.2-3 is entitled for its transfer because before the issuance of PTO dated 8th January, 1960, they had already entered into association with Mst. Ghulam Fatima and her compensation book to purchase the total area of the alleged house including the excess area but on account of the report of Overseer dated 3rd September, 1961, the excess area of 13 Kanals, 4 Marlas was carved out from the total area available for allotment measuring 27 Kanals, 4 Marlas. It is also submitted by him that Khalid Shah being local was not entitled in any manner for the transfer of the excess area as it has been held by the learned District Judge/Settlement Commissioner, therefore, except the petitioner, no one else, is entitled for the transfer of this area and the learned High Court has non-suited the petitioner for the reasons which are not sustainable in the eye of law.
6. As the claim of the petitioner is based on Circular dated 12th July, 1960, under the title "Disposal of land attached to house in excess of three time the plinth area of the house", therefore, same is reproduced herein below:-- "Disposal of land attached to a house in excess of three times the plinth area of the house [Memo. No,4952-P1-Reh/60, dated 12th July, 1960] [In continuation of instructions contained in this Office memo. No, 596-Reh.60, dated 9th January, 4960] ' It has been observed that land in excess of three times the plinth area of houses, in cantonments cannot be disposed of separately in view of the Cantt. Land Admn Rules, 1937. The Chief Settlement and Rehabilitation Commissioner have, therefore, decided that such land should be given to the transferees of the houses on the prevailing market value. In case they are not prepared to take the extra land, the whole along with such land should be put to auction as one single unit."
7. Learned Judge in Chambers of the High Court declined to acknowledge the claim of the petitioner for the following reasons:-- "(6) The claim of the transferees that the Deputy Settlement Commissioner had on 31-7-1961 approved the measurement and calculations and ordered the issuance of appendix, therefore, they be deemed to have been transferred the excess area is also not tenable. Admittedly, no appendix had been issued, no price was paid nor there is any order passed by any competent authority transferring the excess area to them. Mere submission of compensation book by associating Mst. Ghulam Fatima was not enough. There had to be a price to be calculated by conscious application of mind and demand made; no such exercise had ever been under taken nor does any order to that effect exit. In Muhammad Matin Mirza case (supra) (Sahebzada Syed Muhammad Matin Mirza v. Jahangir R. Rustomji and another PLD 1980 SC 64) similar question had arisen in the context of memo. Dated 9-1-1960 and the later press note dated 11-3-1961, whereby the said concession was withdrawn. It was held that `the above press note saved only those cases where a transferee had made full payment for the area in excess transferred to him over the above three times the plinth area prior to the date of issuance of that press note namely 11-3-1961 but the appellant does not fall in that category because there was no conscious transfer of any excess area (i,e, over and above three times the plinth area) to him and nor a separate assessment of price of the aforesaid excess in the perspective. The case of the transferee in the present case, is on a much weaker footing inasmuch as the order which is relied upon is claimed to have been passed on 31-7-1961, by which time memo. Dated 9-1-1960 had been withdrawn and the excess area could not even be sold. Although it had not been the case of the transferees yet now memo., dated 12-7-1960 has been invoked before this Court, that land in excess of three times the plinth area of a house in cantonment is to be given to the transferee on the prevailing market value. It may be observed that the concessions of sale of the excess area to the transferees had its genesis in memo. Dated 9-1-1960 which concession as mentioned above, stood withdrawn through press note dated 11-3-1961. The reliance of the transferees on the above-mentioned memo. Is thus, wholly misplaced. The finding and conclusion thus, arrived at by the Deputy Settlement Commissioner in his order dated 24-4-1983 that the successful drawees were entitled to 14 Kanals, 1 Marla leaving a balance of 13 Kanals, 3 Marlas, as excess does not suffer from any illegality, rather is fully supported by the legal position obtaining on the subject. Writ petition of the transferees i,e, W.P. 247-R of 1983 thus, has no merit and is dismissed accordingly."
' It is to be observed that the above findings, operating against the petitioner, are in consonance to the judgment of this Court, in the case of Muhammad Matin Mirza (supra), therefore, the judgment, having binding effect upon this bench, leaves no scope for us to further dilate C upon this aspect of the case, particularly when no distinguishing features either on law or facts have been put forward by the petitioner. Thus, while maintaining the impugned judgment of the High Court, petition is dismissed and leave to appeal is declined.
8. Learned counsel appearing for petitioners in Civil Petition No,325-L of 2002 contended that the petitioners are in occupation of small quarters, which they have constructed from their own resources upon the disputed land, as such the Deputy Settlement Commissioner instead'of making directions for disposal of the land by making small plots, may have allotted the same to them.
' In this respect, it is noteworthy that the petitioners' claim at this stage cannot be considered by this Court unless they show their any legal entitlement over the property in dispute, for the transfer of the same and such exercise can only be undertaken by the competent authority, keeping in view the observations of Deputy Settlement Commissioner contained in the order, dated 24th April, 1983, therefore, the petition being devoid of force is dismissed.
9. Now adverting toward Civil Petitions Nos.348-L, 386-L to 388-L of 2002. It is to be observed that as per the claim of petitioners, they have purchased the plots in their occupation out of the disputed property from Khalid Shah, whose claim was rejected initially by the District Judge/Settlement Commissioner as back as on 24th April, 1967 by making following observations:- "They (the applicants) have contended that unless his form is disposed of, this property could not be transferred in any other manner In the first instance the existence of the form is disputed by the opposite party, because none is present on the record, although a receipt has been filed by the applicants to the effect that a form had been filed. It may be observed that the locals cannot be transferred any house, the value of which is more than Rs,10,000. In this case the property was assessed according to the Taxation record at Rs,24,000 and according to the Municipal record its value is Rs,14,000. In either case it appears that the value of the property is more than Rs,10,000.
Thereafter no LH Form would even lie for this property. If the appellants want to play ball on the more assumption that an LH Form is pending which did not lie under the law, the value of the property being more than Rs,10, 000 he would only be wasting time of the Court. The LH Form shall be deemed to have been rejected because the property was valued higher than the requirements."
' Late Khalid Shah preferred a writ petition against the above judgment, which was dismissed on 5- 12-1973 and said order was also upheld by this Court because the petition for leave to appeal filed by Khalid Shah and others being No,19 of 1974 has been dismissed on 9th October, 1974.
10. It is pertinent to mention here that after passing of the order by this Court late Khalid Shah and others attempted to get relief from the Civil Court because they instituted civil suit but without any success. Surprisingly, during the pendency of appeal filed by them in the Court of Additional District Judge, Sargodha, they succeeded in getting reactive proceedings in their favor before the Settlement Authorities filing application dated 17th May, 1976. Although this application was considered but without having taken into consideration that after the repeal of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, Khalid Shah and others were not entitled to re- agitate their claim because on the crucial date 1st July, 1974 when the Evacuee Laws were repealed, their case was not pending before any Settlement Authority. Besides it, they have already lost the battle up to this Court and similarly, they failed to get relief from the Civil Court despite of invoking its jurisdiction by filing civil suit but ultimately no relief was given to them even up to the Appellate Court as the appeal filed by them was rejected by Additional District Judge, Sargodha on 2nd March, 1977, therefore, proceedings have become final for all intents and purposes. As far as Khalid Shah and others are concerned, as it has been observed hereinabove that all the forums have declined to grant relief to them for the reasons that neither their predecessor-in-interest Qureshi Abdullah Shah had any claim nor in their independent capacity being in possession of the plot by making investment, they could prove their entitlement for the transfer of the land, therefore, for such reason, the Deputy Settlement Commissioner vide judgment, dated 24th April, 1983 finally declined to entertain their claim and for this reason now the legal heirs of Khalid Shah have lost the interest because they did not approach to this Court and accepted the verdict of the High Court. As such, in this view of the matter, petitioners whose case is based upon the claim of Khalid Shah are not on a better footing then him, thus, for such reasons, no relief can be granted to them in instant proceedings. As such the petitions filed by them are also dismissed.
' As a result of above discussion, all the petitions are hereby dismissed and leave to appeal is accordingly declined in all these cases.