' KARAM ELAHEB CHAUHAN, J.-The dispute in this case is about "western portion" of property bearing No, SW-105-R-43-A, situated at Ratigan Road, Lahore. This property remained subject of a prolonged litigation details whereof it is not necessary to go into and it will be sufficient for the purpose of the present order to state that its transfer in favour of respondent No, 2, Muhammad Din was maintained by this Court by its order dated 6-3-1970, passed in Civil Appeal No, 26/1969.
Relevant portion of the aforesaid order of this Court as follows :- "After careful consideration of the facts of the present case we are satisfied that the finding of the settlement authorities that the portion in possession of the appellant in the main bungalow is part of the Rubber Factory allotted to respondent No, 3, is based on no evidence. The evidence on record shows that prior to partition the main bungalow was used as residence by Professor Kushi Ram Sahni and Mr. Bodh Raj Sahni. The evidence further shows that after Partition the main bungalow was used as residential portion. In fact, it was admitted by Muhammad Ayub before us that in some of the rooms in western part of the bungalow, Mst. Hamida Begum, sister-in-law of Muhammad Tufail, D. S. P. Is living. Thus it can safely be said that vim after Partition no part of the western portion of the bungalow was used as a Rubber Factory . In this state of evidence it is difficult for us to uphold the finding of the Settlement Commissioner that the portion in possession of the appellant is part of the Rubber Factory transferred to respondent No,
3. We would, therefore, set aside the orders of the Additional Settlement Commissioner and the Settlement Commissioner, dated the 12th November 1960, and 6th July 1962, respectively. The order of the Deputy Settlement Commissioner, dated the 26th November 1959, transferring the western portion of the bungalow to the appellant is restored. It was brought to our notice that Mst. Hamida Begum and Mr. Muhammad Tufail are the claimants and are entitled to the transfer of the portion of the property in their possession. If these persons have any right to the portion in their possession, it may be examined by the Department.
' In the result, the appeal is allowed with no order as to costs."
2. Another order of this Court which is relevant to be reproduced in this context is dated 21-5-1975, which was passed in C. P. S. L. A. 231/74, whereby the scope of the order of transfer in favour of Muhammad Din dated 26-11-1959, was (further) explained. The relevant passage in the judgment of this Court reads as follows :- "The learned Chief Justice of the High Court has accepted the writ petition and given instructions to the Settlement Authorities not to treat any part of the western portion of the house as available for transfer to the petitioner under Settlement Scheme No, VIII. The petitioners seek leave to appeal on the ground that this Court had restored the order of the Deputy Settlement Commissioner dated 26-11-1959, by which only that part of the westerm portion of the house was transferred. To Muhammad Din, respondent, which was in his occupation. The contention is ex facie incorrect.
Although the Deputy Settlement Commissioner did, inadvertently, mention in the order dated 26th November 1959, that the western portion was in possession of Muhammad Din, respondent, but he did not mean that any part of the house which was not transferred either to Dr. Riazul Hassan or to Muhammad Din, respondent was left out for disposal to third persons. In the very first sentence of the order that there are only two claimants for transfer of the house, as no one else had filed any Settlement Form, the Deputy Settlement Commissioner assumed that they were in possession of the Eastern and Western Portion of the house respectively. This brings out the proper scope of the order of the Deputy Settlement Commissioner dated 26th November 1955, which was upheld by this Court in Civil Appeal No, 29/79.
' The observation made by this Court on which the petitioners relied before the Settlement Authorities also did not mean that any part of the western portion of the house was to be excluded from the transfer in favour of Muhammad Din, respondent, and the same was to be transferred to the petitioners.
' There is thus no force in this petition and we dismiss it hereby."
3. Khawaja Muhammad Tufail and another (petitioners in C. P. S. L. A. No, 231 of 1974) filed a review against the last mentioned order of this Court dated 21-5-1975, but without any success as the same was dismissed as time barred on 15-3-1977.
4. A perusal of the above reproduced extracts from the judgments of this Court will show that Muhammad Din respondent was held as transferee of the whole western portion of this property.
However, taking advantage of an observation of this Court in its order dated 6-3-1970, wherein it was remarked that if these persons (namely) Khawaja Muhammad Tufail and his sister-in-law (Mst. Hamida Begum) have any right in the transfer of the portion of the property in their possession" it may be examined by the Department", the said persons filed (obviously belated) N.
C. H. Forms to claim the same. Mst. Majeeda Begum, present petitioner, who is wife of Khawaja Muhammad Tufail, similarly also filed a C. H. Form on the basis of the possession of her husband.
Though these were belated forms but the Settlement Authorities admitted/entertained the same condoning the delay. This action of the Settlement Authorities was challenged by Muhammad Din by a Constitutional Petition (W. P. No, 307-R/71) which was accepted by the High Court by its order dated 14-1-1974 and the relevant order admitting/entertaining their forms was quashed. Khawaja Muhammad Tufail and his sister-in-law filed C. P. S. A. L. No, 231 of 1974 which was dismissed by order of this Court dated 21-5-1975, a portion whereof has already been reproduced above, wherein it was held that the whole of western portion (including the accommodation in possession of Khawaja Muhammad Tufail etc.) already stood transferred to Muhammad Din.
5. Khawaja Muhammad Tufail did not stop at that and was successful in getting the transfer from the name of Muhammad Din cancelled from the D. S. C. On 4-3-1978 this time on the ground that be has not paid full transfer price. The Deputy Settlement Commissioner, consequently, transferred the property to Mst. Majeeda Begum (wife of Khawaja Muhammad Tufail) on 27-9-1978.
Muhammad Din challenged this order by a Writ Petition (W. P. No, 500-R of 1979) which was accepted and the aforesaid orders were quashed by the High Court on 17-9-1979. Mst. Majeeda Begum has come up in C. P. S. L. A. No, 1034 of 1971 against the aforesaid order to this Court and the learned counsel for the petitioner has raised a number of points to which we shall presently refer.
6. The first point argued by the learned counsel was that the portion in occupation of Khawaja Muhammad Tufail was never transferred to Muhammad Din, and therefore, this portion in this form having remained always available for transfer was rightly transferred to Mst. Majeeda Begum. He submitted that this Court in Civil Appeal No, 26 of 1969 decided on 6-3-1970 had restored the transfer in the name of Muhammad Din as made to him by the Deputy Settlement Commissioner in his order dated 26-11-1959, which in its own terms was confined only to the portion in possession of Muhammad Din and did not extend to any portion in occupation of Khawaja Muhammad Tufail which was now transferred to his wife i.e, the present petitioner. The contention has no merit. The position was clarified by this Court in its order dated 21-5-1975, against which a review of Khawaja Muhammad Tufail also failed on 15-3-1977 and it was held that it was whole of the western portion including the accommodation in occupation of Khawaja Muhammad Tufail which was transferred to Muhammad Din. The point has conclusively been determined by this Court as aforesaid, and cannot now be reopened in this circuitous litigation on the subject.
7. The next point argued was that in the relevant transfer order (T.
0.) to Muhammad Din the property transferred to him was numbered and shown as 45 whereas the western portion bore number 43-A, and as such, having obtained transfer of the former property, Muhammad Din in this way abandoned transfer of portion 43-A which became available and could now be transferred to the petitioner. It was further submitted that the respondent in this context was estopped from again claiming transfer of property under number 43-A, because the petitioner acting on the wording of the aforesaid "transfer order" persued the matter, obtained order from the D. S. C, in her favour on 4-3-1978/27-9-1978 and then paid the relevant transfer price. The argument is totally misconcieved and can be disposed of with a short oservation that the D. S. C. Gave that portion to Mst. Majeeda Begum which was resumed from Muhammad Din and therefore it cannot be said that he had obtained any different portion. However, if the case is to be looked into from the point of view of the conduct of the parties then it is self-evident that though the settlement operations were in full wing from year 1958 onward under the Displaced Persons (Compensation and Rehab' itation) Act, 1958, the petitioner never filed any form for transfer of any portion of this property until the year 1970 after its transfer to Muhammad Din had been maintained by this Court in its judgment dated 6-3-1970. Such a lethargic conduct and laches even otherwise were sufficient to disentitle the petitioner to enter into this contest at such a belated stage.
8. It was then argued that Muhammad Din had made default in paying the balance of the transfer price amounting to Rs, 4,215 and therefore the property was rightly resumed from him by the D. S. C.
On 4-3-1978. The contention has no force for various reasons. Firstly the total price was Rs, 22,800 and the respondent paid Rs, 18,585 promptly, thus leaving only a balance of Rs, 4,215 for which we are satisfied after hearing the learned counsel for the parties that no proper demand notice was served on him and as such the cancellation of transfer without issuing a proper demand notice on the subject was without lawful authority. Secondly if "proviso" as added in para. 2 of Settlement Scheme No, VIII on 30-10-1973 (See PLD 1974 Punjab Statutes 83) is read with para. 17 of that Scheme, it is clear that, where in case of transfer of a house, a transferee has paid 25% of the sale price, then if any arrears remain, the same are to be recovered B as arrears of land revenue and the transfer on that ground is not to be set aside. The High Court in these circumstances was justified to quash the order of the D. S. C. Dated 4-3-1978 for this reason as well. Learned counsel for the petitioner submitted that the aforesaid "proviso" was ultra vies of the powers of the C. S. C.
Because strictly speaking it will tantamount to transfer a property to a transferee without realising any price and at the same time not having any power to cancel the said transfer for default in payment of price. We drew attention of the learned counsel to para. 17 of the Scheme which was a complete answer to his submission C inasmuch as it is laid down that the balance could be recovered as arrears of land revenue. When confronted with the aforesaid provision of law, the learned counsel had no answer. Thirdly, it has been brought to our notice by the learned counsel for respondent No, 2 that litigation about this property remained pending uptil 31-4-1978 when the name of his client was deleted from another writ petition bearing No, 141-R of 1974. It was filed by one Abul Hassan in the High Court impleading him also as a party. He submitted that until the clearance of title, his client would have been justified in withholding the payment but nonetheless he paid it in cash much earlier on 27-8-1977, reserving his right to claim the refund. Learned counsel for the petitioner submitted that payment subject to a rider of refund was no payment in the eye of law. The contentio has no force. If respondent No, 2 reserved his right to claim refund, if we may say so, if permitted under the law, there was nothing wrong in that tender or payment.
Looked at from whatever angle the reservation for claiming refund of payment could not constitute a default in payment of price on his part, and the objection put forward before us on this ground is hereby repelled, and it is held, that the property in the over all circumstances above explained never became available for transfer under Settlement Scheme No, VIII, and in the face of an already subsisting transfer in favour of respondent No, 2, it could not have been transferred to the petitioner.
9. The result is that this petition has no merit and is dismissed hereby.