' ABDUL HAYEE KURESHI, J .-The facts briefly of the case are that tenement No, G/10 in a building on plot No, R. 2/16, Ramswa mi, Karachi, was included in a list of such houses as were available for disposal by the Settlement Authorities in the Earmarking Scheme. The appellant, Ibrahim, being a claimant was the successful winner in the draw and was therefore held entitled to transfer of the house in question on payment of Rs, 2,880 and such payment was adjusted from the compensation book of the appellant. A P. T.
0. Was issued to him on 10th August 1960 and P. T. D. On 15th April 1963. Another house bearing No, G/1 in the same building was available for transfer anti respondent Rashid Ahmed filed an application on N. C. H. Form on 2nd July 1970 for its transfer. P. T.
0. Was issued in his favour and the price was adjusted from the Compensation Book of respondent Hakim Mohammad Ahmed with whom respondent Rashid Ahmed had entered into an agreement of association. On 30th August 1961, respondent Rashid Ahmed and Hakim Mohammad Ahmed made an application before the Assistant Settlement Commissioner stating that a small room which had not been transferred to any one and was in the occupation of a Local was in fact a portion of tenement No, G/1 and therefore, the said room may also be included in the tenement bearing No, G/1. This application did not state the number of the tenement nor did it disclose that the said tenement had been transferred to appellant Ibrahim. By an order dated 30th September 1961 this room which had already been transferred in favour of appellant Ibrahim was transferred to the respondents Rashid Ahmed and Hakim Mohammad Ahmed. Subsequently, the two tenements were transferred by Rashid Ahmed and Hakim Mohammad Ahmed in favour of Respondent Mst. Fatima Khanum who is the wife of Hakim Mohammad Ahmed and the mother-in- law of Rashid Ahmed. Litigation then ensued between the parties. The Additional Settlement Commissioner by an order dated 9th October 1963, came to the conclusion that tenement No, G/10 did exist as a separate tenement and the same has been wrongly transferred to the respondents.
On appeal before the Settlement and Rehabilitation Commissioner the case was remanded to the Additional Settlement Commissioner for proper enquiry. On remand the Additional Settlement Commissioner by an order dated 18th March 1967 held that the transfer of the disputed premises in favour of the respondents was valid and the earlier disposal by Earmarking proceedings in favour of the appellant was invalid. The transfer in favour of the appellant was set aside. An appeal was filed before the Settlement Commissioner, who by an order dated 1st February, 1968 upheld the order of the Additional Settlement Commissioner and the subsequent transfer of tenement G/10 in favour of the respondents was upheld.
2. Being aggrieved by the order of the Settlement Commissioner the appellant filed a petition under Article 98 of the Constitution of the Islamic Republic of Pakistan, 1962. A learned Single Judge of this Court heard this petition and by an order dated 12th August 1970 dismissed the same. It is necessary to state a few more facts which have led to some complications in the proceedings.
Originally one Ahmed Ali and then one Mohammad Sadiq was in possession of the disputed premises. It seems the said occupant vacated the premises and possession was obtained by respondent Fatima Khanum. While the proceedings were pending before the Settlement Authorities and in this Court the original construction was demolished and new construction was started by respondent Fatima Khanum. This fact was brought to the notice of the learned Single Judge on 11th November 1968. Mr. Wajihuddin, the learned Advocate for the respondents sought permission from the Court to complete the new structure. The learned Judge was of the view that it would have been better if such request had not been made by Mr. Wajihuddin as the case was listed for final hearing on 25th November 1968. However, Mr. Zafar Alam, the Advocate appearing for the appellant before the learned Single Judge stated that he would have no objection if the new construction is completed by the respondent at her own risk and further that the respondent would not take advantage of the construction in the final decision of the petition. On such premises a consent order was passed permitting the respondent to complete the construction.
3. The order of the learned Single Judge could be considered as composed of 3 distinct portions.
The first portion relates to the history of the case, the second portion relates to the recording of respective contentions of the parties as well as their entitlement of transfer and the last portion of the order is devoted to the consideration of the question of relief. In the last portion of the order the learned Single Judge has expressed that the original building having been demolished even the identity of the disputed tenement had been obliterated. On such premises the learned Single Judge expressed that even if he was to hold that the transfer of the disputed premises to the respondent was valid it would be impossible to give effect to the order of the Court in petitioner's favour. The learned Single Judge came to the conclusion that it was not possible to demarcate any particular portion of the new building as might be identifiable with the disputed premises. In the end the learned Single Judge stated as follows :- "Perhaps, the proper and effective remedy for the petitioner now would be to sue the respondents for damages. If, however, the petitioner were to resort to this remedy, then it would be inappropriate to hold in these proceedings as to whether the transfer of tenement No, G/10 in the respondent's favour was invalid or not, for in giving such a finding this Court would be anticipating the result of the suit which the petitioner may file for damages or any other relief against respondents. I would go even so far as to say that if such a finding is given in these proceedings, then there will be practically no controversy in the suit for damages except the assessment of quantum of damages to be awarded to the petitioner. Such a course, even if permissible, would be extremely inadvisable. I am, therefore, of the view that because of the demolition of the old building R. S. 2/16, the present petition is infructuous, as no relief can be given to the petitioner who, however, is left at liberty to resort to such appropriate proceedings, including a suit for damages, as are available to him in law."
4. We have heard Mr. Ismail Munshi for the appellant and Mr. Wajihuddin for the respondents. None appears for the Settlement Commissioner.
5. Among others Mr. Ismail Munshi has raised a contention that the order of the learned Single Judge was liable to be set aside on the ground that after having recorded the respective cases of the two parties the learned Single Judge did not give any finding in favour of any party and he had further observed that this was properly a case in which the appellant could file a Civil suit for recovery of damages. The learned Advocate has contended before us that such remedy was illusory because the Civil Court could never enter into the question of entitlement of the parties to transfer of the tenement and the present position being that the transfer in favour of the appellant having been cancelled, the Civil Court could not extend any relief in favour of the appellant. We asked Mr. Ismail Munshi if that point had been urged before the learned Single Judge and he stated that such point had been urged that seems to have escaped the attention of the learned Single Judge at the time of writing the judgment.
6. We have given our serious consideration to this case and we must state that the appellant only sought declaratory relief in the petition. The main relief was for a declaration that the transfer of the disputed premises in favour of the respondents was illegal, inoperative and of no legal effect. We are of the view, with utmost respect, that the relief sought by the appellant, could have been extended to him, subject of course to his entitlement. The mere fact that a new building had been constructed could not deprive the appellant of his entitlement, if he had any. The order dated 11th November 1968, clearly stated that the fact of the new construction having been raised would not affect the merits of the case at the time of final decision. That being so, the respondents took the risk of making new construction and the petition was not liable to dismissed on the ground that old tenement had been demolished. I appears that this aspect of the case was not at all considered by the learned Single Judge at the time of passing the final order and in fact the petition has been dismissed on the sole ground that by reason of reconstruction the property itself had lost its identity.
7. In these circumstances, we set aside the order of the learned Single Judge, dismissing the petition of the appellant and remand this case for re-hearing by the Single Judge in accordance with Roster Sittings. The learned Single Judge who hears this case will consider the respective entitlement of the two parties to the disputed premises and if he is of the view that unnecessary hardship would be caused to any party he should after determining the issues of entitlement leave the parties to obtain pecuniary compensation in respect of their entitlement. The appeal is allowed to the extent stated above but there will be no order as to costs.