' Property No, 302/C is a composite property situated in Meana Bazar, Rawalpindi, consisting of two shops and a residential house. In the Taxation Record for the year 1946, it is known as one unit but in the Rehabilitation record it has been sub-divided into four units as under:- {{TABLE}}
(1) C/302 (a) shop Allotted to Muhammad Shafi.
(2) C/302 (b) shop Allotted to Gulzar Muhammad.
(3) C/302 (c) Residential In possession of Badaruddin. portion.
(4) C/302 (d) Balakhana Allotted to Badaruddin.
(residential). {{TABLE}} ' The entire property was transferred as a single unit by the D. S. C. In favour of Badaruddin by order dated 5-10-1959. On Gulzar Muhammad and Muhammad Shafi's appeals, the case was remanded by the learned Addl. Settlement Commissioner vide order dated 13-4-1960 for fresh decision and Badaruddin's revision petition was dismissed on 23-6-1960 by the learned Settlement and Rehabilitation Commissioner. In pursuance of the remand order of the Appellate Court, the D. S. C.
Again transferred the entire property in favour of Badaruddin vide order dated 4-2-1961. Petitioner Gulzar Muhammad filed an appeal and learned Addl. Settlement Commissioner remanded the case vide order dated 29-4-1961. In pursuance thereof, the petitioner Gulzar Muhammad was transferred a Shop No, C/302(b) vide order of D. S. C. Dated 11-12-1961. Muhammad Shafi who was seeking transfer of the shop in his possession, was found to be not a displaced person and his N. C.
S. Form rejected. This is vide order of the D. S. C. Dated 11-12-1961. Badruddin as well as Muhammad Shafi filed appeals which were dismissed by the Addl. Settlement Commissioner on 10-1-1962. On Muhammad Shafi's revision petition be was transferred the shop in his possession by the learned Settlement Commissioner vide order dated 24-7-1962. Badaruddin's revision petition against the petitioner Gulzar Muhammad was dismissed on the ground that he has been transferred already a shop in a different locality and certainly it would not be desirable to transfer him another commercial place although it forms a part of this house which has been transferred to him. The portion in dispute is not in possession of the petitioner (Badaruddin) and even though it is a garage it is being used as a shop". This is vide order dated 24-8-1962. Badaruddin filed Writ Petition No, 2861/R of 1962 challenging the orders of the Settlement Commissioner dated 24-7-1962 and 24=8- 1962, that of the Addl. Settlement Commissioner dated 10-1-1962 and that of the D. S. C. Dated 11-12- 1961. The Writ petition was filed both against the petitioner Gulzar Muhammad as well as Muhammad Shafi. During the course of the hearing, it was argued that Muhammad Shafi was not entitled to the transfer of the shop because he was not a displaced person and a finding to the contrary was incorrect. The petition was allowed and the impugned orders set aside being without lawful authority and of no legal effect, This is vide order of Mr. Justice M. Mushtaq Hussain (as his Lordship was then and now my Lord, the Chief Justice) dated 10-3-1966. Petitioner Gulzar Muhammad filed C. M. No, 898 on 15-12-1966 saying that since no arguments were addressed against him, nor, his case had been taken into consideration by the Court, the expression in the operative part of the order that the impugned orders were without lawful authority, was being adversely interpreted against him by the D. S. C. A clarification of the Court was sought for. The application was dismissed by his Lordship on 10-5-1967 with the observation that the order was unambiguous. The petitioner filed L. P. A. No, 207 of 1967 against the last mentioned order which was dismissed on 3-6-1979. The petitioner filed an application before the learned Settlement Commissioner for being issued transfer documents but his application was dismissed on the ground that the case was neither pending nor had been remanded. This is vide order dated 4-10- 1979. Petitioner has filed this Constitutional petition.
2. Learned counsel for the petitioner has contended that the petitioner is a displaced person in possession of the shop since 1951 and was entitled to its transfer and the shop had in fact, been transferred in his favour. It is submitted that no doubt Badaruddin did implead the petitioner and ask for quashment of the orders under which the shop had been transferred to the petitioner as well, but in the order passed by the learned Single Judge on 10-3-1966 in W. P. No, 2861/R-66, the case of Muhammad Shafi was dealt with and the latter was found ineligible to the transfer of the shop being local but nothing at all was said about the Petitioner and consequently the petitioner's transfer remained intact. Learned counsel further submitted that the miscellaneous application for clarification of the order was dismissed on the ground that the order was unambiguous. Learned counsel submits that the application was unnecessary and the order of the learned Single Judge dated 10-3-1966 had, in fact, not affected the petitioner. He has, then, contended that the Settlement Commissioner was in error in not issuing the transfer documents to the petitioner.
3. Learned counsel appearing for Badaruddin since deceased and represented by his legal representatives-respondents Nos, 2 to 5, has submitted that the transfer in favour of the petitioner was challenged by Badaruddin and the orders in that behalf were quashed by this Court previously on 10-3-1966 and the petitioner's contention to the contrary was rejected when his Civil Miscellaneous Application was dismissed on 10-5-1967 and the order has been upheld on dismissal of his L. P. A. On 3-6-1979. Consequently, the petitioner has no case to urge. The attention of the learned counsel for the respondents was drawn to the situation that the impugned orders in the previous writ petition including that of the D. S. C. Dated 11-12-1961 and subsequent thereof having been quashed, the result would be that the order immediately preceding the order of the D. S. C.
Dated 11-12-1961, will hold the field which was that of the Appellate Court remanding the case. The result might as well be that the case shall start in pursuance of that order of remand. The learned counsel for the respondents submitted that as far as this petition is concerned, the order of the Settlement Commissioner dated 4-10-1979 has been passed within jurisdiction and even if the same be erroneous, that is not liable to be interfered with in exercise of the Constitutional jurisdiction. He has referred to Muhammad Hussain Munir etc. v. Ikandar etc. (1). Learned counsel for the respondents also referred to 1968 SC (2)SC J 236 to contend that what is the essence in a decision is its ratio v nd not every observation found therein, nor, what logically follows from arious observations made in it. It is not profitable task to extract a sentence here and there from the judgment and build upon it.
4. After hearing the learned counsel for the parties and perusing the entire record with their assistance, it is quite clear that Badaruddin challenged the orders of transfer in favour of the petitioner as well as Muhammad Shafi starting from the order of the D. S. C. Dated 11-12-1961, to the order of the Addl. Settlement Commissioner dated 10-1-1962 and of the learned Settlement Commissioner dated 24-7-1962 and 24-8-1962 and the petitioner was a party to the writ petition.
During the course of hearing, it appears, entire burden of the case of Badaruddin was that Muhammad Shafi was not entitled to the transfer of the shop in his possession, he being a local.
That is so stated in the first paragraph of the judgment narrating the facts and the arguments were directed against Muhammad Shaft's transfer. Not a word was urged on behalf of Badaruddin as against the petitioner, who was admittedly a non-claimant displaced person in possession. No doubt in the end, in the operative part of the judgment, it was declared that the "impugned orders are set aside as being without lawful authority and of no legal effect", but this declaration has to be read in the context of the contest raised by Badaruddin in Court with reference to the facts urged.
There is no doubt that the entre burden of song was regarding the ineligibility of Muhammad Shafi and nothing at all was being said against the petitioner. It is true that the petitioner applied for clarification of the order that his rights to transfer had not been contested, nor, adjudged and that his application was dismissed on the ground that the order was unambiguous, and rightly so if I may say with utmost respect, because there was no ambiguity about the order. But the order has to be seen in the context of the controversy and the dispute raised in the Court. No doubt, Badaruddin filed the writ petition against the petitioner as well as Muhammad Shafi but at the time of final hearing he only urged the facts and addressed the arguments against Muhammad Shafi only, which found favour with the learned Judge and the relief prayed for was granted. The order has to be interpreted in the context of the controversy raised in the Court because it was this controversy which was being resolved by the judgment. It is quite possible that a person may come to Court against two persons but at final hearing, he may press his claim against one and not the other. Of course, he can give up the claim against the latter expressly but he can do so impliedly as well. He may do so for variety of reasons like that he feels sure about his ground against one and not so sound against the other,
(1) PLD 1974 SC 139 as in this case Badaruddin could have felt that he had good ground to question transfer of the shop to Muhammad Shafi who was a local but not so against Gulzar Muhammad petitioner who was a displaced person in possession since 1951. Whatever the reason may be, it is quite possible and within the rights of a litigant that even if he sues two persons, he can at the final hearing plead against one and not the other. Judgment following will b in the context of the controversy lastly raised in the Court. In this view of the matter, since Badaruddin had contested the transfer in favour of Muhamma Shafi and not Gulzar Muhammad petitioner, relief granted to him will have to be referred to against Muhammad Shafi and not Gulzar Muhammad, petitioner. There is another aspect of the case which is quite important and that is that after the order of the learned Addl.
Settlement Commissioner dated 29-4-1961 remanding the case to the D. S. C., the orders passed in pursuance thereof by the D. S. C. On 11-12-1961, by the Addl. Settlement missioner on 10-1-1962 and the learned Settlement Commissioner on 24-7-1 and 24-8-1962 were sought to be quashed and were set aside. It would Irma, that the appellate order of the learned Addl. Settlement Commissioner data 29-4-1961 would still remain in the field. The consequence will be that Badaruddin or his heirs would have to contest for transfer of the 1 N o shops-not one claimed by the petitioner. I do not think that it would be in the interest of Badaruddin's heirs or administration of justice to bring about this result because the litigation has been going on for the last 21 years and it would be better for the settlement operations to come to an end and let the past remain buried under the debris of time. In all the circumstances of the case, the most appropriate order appears to be that since Badaruddin had not contested the transfer in favour of Gulzar Muhammad petitioner in the Court at the final hearing of his writ petition but only against Muhammad Shafi, the relief granted to him was against the latter and not the former. The observations from the Supreme Court judgment quoted by the learned counsel for the respondents that what is essence in a decision is its ratio and not every observation found therein fortifies the conclusion in the sense that the judgment was between the parties whose rights were cone sted in the Court and these were Badaruddin on the one hand and Muthammad Shafi on the other, though the petitioner was arrayed as a party but not a word had been said against him in the Court nor any reference was made in the adjudication against him.
5. In view of what has been stated above, it is declared that the transfer in favour of the petitioner, a displaced person in possession of the shop in question i,e, C/302(b) since 1951, when Badaruddin had already been transferred a shop and the latter having not urged anything against the petitioner in the previous writ petition, remains intact and he shall be issued requisite documents in this behalf. In the circumstances, the parties shall bear their own costs.