' SAEEDUZZAMAN SIDDIQUI, J.-This appeal under clause (10) of the Letters Patent is directed against the order dated 13th August, 1969 passed by a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench, Whereby he dismissed in limine Petition No, 421 of 1969, filed by the appellant challenging the orders dated 6th February 1969 and 28th April 1969, passed by the respondents Nos. 3 and 1 respectively. The controversy in this case relates to the transfer of the roof of shop bearing No, Af2875/2 on the ground floor, which was transferred one Muhammad Afzal son of Mohammad Aslam against his N C S form and from whom the present appellant purchased it on 16th July 1965 through a registered sale-deed.
2. Mr. S. M. Raza, the learned counsel for the appellant, contended before us that the roof of the shop in occupation of the appellant had all along been the part and parcel of the shop and could not be transferred to respondent No, 2, who is transferee of the adjoining residential premises on the ground floor alongwith the first floor premises. Apart from the above contention on merits, the learned counsel raised the following further contentions before us in support of this appeal :--
(i) That the permanent transfer deeds of the properties having been issued to the parties, the Settlement Authorities became functus officio and had no jurisdiction to make any corrections in the respective transfer documents of the parties.
(ii) That the respondent No, 2 being a non-claimant displaced person in possession of a residential unit on the ground floor, could not lay claim to the transfer of the upper floor residential unit, which was in possession of one Badruddin.
(iii) That respondent No 2 having applied for transfer of only the ground floor premises, could not in law be transferred anything in excess of that.
(iv) That the order of Deputy Settlement Commissioner, Hyderabad, dated 24th January 1968, passed on the application of respondent No, 2 was a void order as the same was passed behind the back of the appellant and had the effect of curtailing the entitlement of the appellant in respect of premises No, A/99-2875/2 transferred to him.
' To examine the aforesaid contentions raised by Mr. S. M. Raza, the learned counsel for the appellant, we would like to mention some relevant facts which are necessary for determination of controversy on merit as well as legal contentions raised before us.
3. It is an admitted position that the property bearing C S No, A/ 99-2875 was a composite property consisting of commercial as well as residential premises. The ground floor consisted of a shop which was in possession of one Muhammed Afzal (predecessor-in-title of the appellant) and a residential premises in possession of respondent No,
2. The premises namely a room on the first floor over the ground floor premises was in possession of one Badruddin All the parties namely the said Muhammed Afzal, respondent No, 2 and Badruddin, who were non-claimant displaced persons applied for transfer of the premises when Settlement Scheme No I came into operation.
Muhammad Afzal applied for transfer of the shop in his possession on N C S form. The number of shop in the form against column No 5 was shown as shop No A/99- 2875, Tilak Incline, Hyderabad. I n column No, 9 of the said form it was stated that nobody else was in possession of the shop or part thereof. In the N C H form submitted by respondent No 2 the particulars of the property sought to be transferred in column No 5 were given as A/99- 2875 and 2874, Tilak Incline, Hyderabad, In column No, 9 of the form it was disclosed that the upper floor of the house consisting of one room was in occupation of one Badruddin Khoja and the house also included a shop which was in occupation of Muhammad Afzal. Badruddin Khoja in his N C H form submitted before the Settlement Authorities against column No, 6 had shown the number of property applied for transfer as 2875, Ward "A", Tilak Incline, Hyderabad, and against Column No 9 of the form it was stated that on the upper storey Badruddin Khoja was in occupation while on the ground floor respondent No, 2 was residing. The appellant's, predecessor-in-title Muhammad Afzal was transferred the shop on the ground floor under No, A/2375, while the residential premises on the ground floor alongwith the first floor premises and another portion of the building were transferred to respondent No, 2 as one residential unit under No A-2874 and A/2875. The P. T.
0. Issued in favour of Muhammad Afzal, however, further showed that the property transferred in his favour was a part of the building. The subsequent permanent transfer deeds issued to appellant and respondent No 2 carried the same number of properties as was shown in their respective P.T.Os. The present appellant purchased the shop premises from Muhammed Afzal through a registered sale deed on or about 16th July 1965 and the description of the property was given in the sale deed as under :- "Sale-deed in respect of a shop popularly known as U K Watch House bearing C. S. No, A/99-2875 Tilak Incline, Hyderbad."
' The boundaries of the shop transferred under the sale deed were disclosed as under :- "North.................... C S No A/96.2874 (house of Mahmood)
' East. .. ................ C S No A/96.2874 (house of Mahmood)
' West.. . ........................ Hope and Health Chemists and Druggists.
' South ........................... Tilak Incline Road."
' It is an admitted position that there was no controversy between the parties with regard to the identity of properties transferred to them until 1968 and the present controversy arose in or about January, 1968, when both of them approached the City Survey Office, Hyderabad, for mutation of their respective names as transferees of the properties in their respective possession. It appears that in the City Survey Record the two properties transferred in favour of appellant and respondent No, 2 were shown as A-2874, A-2875/1 and A-2875/2 and there was no such property as Survey No, A-2875 in their record. Since the P. T.
Ds, issued to appellant and respondent No, 2, both contained survey No, A-2875 (we are referring to Survey No, A-2875 only as there is no dispute with regard to transfer of Survey No, A-2874 to respondent No, 2) they were advised to have their transfer documents corrected from the Settlement Department. The respondent No, 2 on 11th January 1968 filed an application before Deputy Settlement Commissioner, Hyderabad, pointing out that the house transferred to him was constructed on City Survey No, A-2874, A-2875/1 and A-287:5/2 whereas in the P. T. D. Issued to him the property was shown as Survey Nos. A/2874 and A/2875. The appellant also filed an application on 21st February 1968 before Deputy Settlement Commissioner Hyderabad, for correction of his P. T.
D. And stated therein that the P.T.D. Issued to him for property No, A/2875 is wrong and that the shop in his possession is actually entered in the City Survey Record as A/2875/2.
' On the application dated 12th January 1968 filed by respondent No, 2, the Settlement Inspector was directed to make a site inspection and submit his report. The Settlement Inspector, it appears, after making site inspection submitted a report on 23rd January 1968 and suggested that the correction in the P. T. D. Of respondent No, 2 may be allowed and survey numbers of property may be corrected as C S No, A/2874, A-2875/1 and A-2875/2. It was further stated that this correction will not involve any duplication. Similarly on the application submitted by the appellant the same Settlement Inspector was directed by the Deputy Settlement Commissioner, Hyderabad on 21st February 1968 to check up and report and in compliance of the said order, on 29th February 1968 he submitted a report suggesting that the number in the P. T. D. Of the appellant may be corrected as A-2875/2. The Deputy Settlement commissioner, Hyderabad allowed the correction of the numbers in the P. r. Ds. Of respondent No, 2 on 24th January 1968 and that of appellant on 2Fth February 1968. After P. T. Ds. Of both the parties were so corrected, the appellant moved a miscellaneous application before the Deputy Settlement Commissioner, Hyderabad, on 13th July 1968, seeking a declaration to the effect that respondent No, 2 has got added subsequently part of the property bearing No, A/2875/2 namely the roof of the shop transferred to the appellant, illegally by concealing the fact that the P. T. D. Issued to him was only in respect of house No, A/2875/1 and A/2814. It appears that on the application dated 13th July 1968 a report was called for by the Deputy Settlement Commissioner, Hyderabad, from Settlement Inspector, who submitted the same on 23rd July 1968. The Deputy Settlement Commissioner, Hyderabad, however, dismissed the application of appellant after hearing the parties on the short ground that according to the allegation of appellant the roof was included in the transfer document of respondent No, 2 under the orders of Deputy Settlement Commissioner dated 24th January 1968 and as such he was not competent to review the order of his predecessor. The appellant then filed an appeal before the Additional Settlement Commissioner, Hyderabad, who after careful consideration of the arguments advanced before him and after making site inspection, came to the conclusion that in effect what was now being asked by the appellant is that the roof over the shop bearing No, A/2875/2 be transferred to him alongwith the shop. The Additional Settlement Commissioner came to the conclusion on the basis of site inspection that the upper floor residential portion is served through the staircase which passed over the roof of shop No, A/2875/2 and that the kitchen and bath also exist on the said roof. On these considerations the appeal filed by the appellant was dismissed on 6th February 1969. Against this order of the Additional Settlement Commissioner a revision application was preferred by the appellant before the Settlement Commissioner, Karachi. The Settlement Commissioner after hearing the parties, came to the conclusion that the portion where Badruddin Khoja was residing included the roof of appellant's shop and there was no justification to separate the roof now when it was closed and bounded by construction on the first floor. The additional reason given by the Settlement Commissioner for dismissing the revision application was that after amendment of subsection (3) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 such matters of demarcation do not lie before him.
Against this order of the Settlement Commissioner the appellant filed writ petition bearing No, 421 of 1969, which was dismissed in limine by a learned Single Judge of the erstwhile High Court of West Pakistan Karachi Bench, by order dated 13th August, 1969. Mr. S. M. Raza, the learned counsel for the appellant, seriously challenged before us the findings of respondents Nos. 1 and 3 to the effect that the roof of shop No, A/99-2375/2 transferred to appellant was part and parcel of the 1st floor residential premises transferred to respondent No, 2 as the staircase leading to the 1st floor premises passed through the roof of shop of appellant and the amenities like bath and kitchen of the residential premises are also constructed on the said roof. The mainstay of the learned counsel's argument in this regard is the report of a Settlement Inspector dated 26th September 1968 submitted before the Deputy Settlement Commissioner, Hyderabad, on the miscellaneous application of appellant. We have examined this report in, detail and are not at all impressed by it.
We are also not prepared t4 place reliance on this report for the reason that it was relied upon by t'6e Deputy Settlement Commissioner before whom it was submitted and by respondents Nos. 3 and 1 who dealt with the case in appeal and revision respectively. In fact respondent No, 3, who himself made the site inspection of the premises, had come to a contrary conclusion and respondent No, 1, who heard the revision against the order of respondent No, 3, also concurred with the findings of respondent No, 3 in this respect. The report of Settlement Inspector in these circumstances, in our opinion, cannot be preferred as against the findings of respondents Nos. 1 and 3 given after hearing the parties, specially when the respondent No, 3 himself reached a contrary conclusion after site inspection. Apart from these reasons we cannot otherwise substitute our own finding on this purely factual aspect of the case on the basis of this report while examining a case of this kind in limited exercise of our power under writ jurisdiction. We, therefore, find no reason to take exception to the order of respondents Nos. 1 and 3 in this regard.
' We will now deal with the legal contentions raised by Mr. S. M. Raza, the learned counsel for the appellant, before us.
' From narration of the facts given above, it is abundantly clear that by corrections made in the respective P.T.Ds. Of appellant and respondent No, 2 neither any property was added nor taken away from the transfer documents issued to them. All that was done by the amendment of the two P.T.Ds. Was to correct the survey numbers of the two premises transferred to the appellant and the respondent. No, 2, as in the transfer documents issued to both of them the property was described as A/2875 which number admittedly did not exist in the record of City Survey Office. It may also be pertinently stated here that the proceedings for corrections of the P. T. Ds. Emanated as a result of application of both the appellant and respondent No, 2 and as much as complaint can be made by the appellant on this score. In our opinion the correction of the kind as has been made in the P.
T. Ds. Of the appellant and respondent No, 2 could be done by the Settlement Authorities in the above circumstances even after issuance of the permanent transfer deeds to them as such correction had neither the effect of depriving their parties of any property transferred to them nor such correction had that effect of giving something to any of the parties which was not originally!
Transferred to him. The corrections in our opinion were simply by way of clarification to remove the confusion which arose as a result of mention of the same number in the two P. T. Ds. Issued in favour of respondent No 2 and the predecessor-in-title of the appellant namely Muhammad Afzal.
Itr our opinion it was only the Settlement Authorities, who could make this correction in the permanent transfer deeds of the parties. Mr. S. M. Raza, learned counsel for the appellant, vehemently contended before us that in view of the decision of the Honourable Supreme Court in the case of S. Anwar Hussain Sani v. Sarfraz Ahmed (I) it was not open to the Settlement Authorities to deal in any manner whatsoever with the P. T. Ds. Of the parties. At page 674 of the report of the case in paragraph 2 the conclusion reached .By the Supreme Court was to the following effect :-- "Two types of cases are envisaged in the rules in which the Settle. Meat Authorities may interfere even after issuance of P. T. Ds. Firstly cases which suffer from an error of a type which can be (1) PLD 1971 SC 669 corrected without embarking upon a formal enquiry or holding adverse proceeding cases of clerical mistakes or errors of like nature will fall within this category of cases. Second type of cases dealt with under rule 9 and rule 7 are those in which transfer or allotment of an evacuee property was obtained by means of misrepresentation or fraud."
' In our view the correction of the kind as has been made in the present case by the Settlement Authorities in the respective P. T. Ds. Of the parties did not offend against the rule laid down by the Hon'ble Supreme Court in the above-cited case.
' Mr. S. M. Raza, learned counsel for the appellant, next contended that the respondent being a non- claimant displaced person was not entitled to the transfer of residential premises on the first floor which was a separate independent residential unit being in possession of one Badruddin Khoja.
This contention of the learned counsel for the appellant cannot be accepted for the reasons, firstly the respondent No, 3 in his order dated 6th February 1969 had found that the residential premises on the ground floor and 1st floor was transferred to respondent No, 2 as one unit and there is nothing on the record before us to reach a contrary conclusion, secondly the appellant had no locus standi to question the transfer of 1st floor premises to respondent No, 2 as one unit alongwith ground floor premises as, his prededessor-in-title Muhammad Afzal, who was transferred the shop on the ground floor was never a candidate for transfer of 1st floor premises. If at all anyone could complain about the transfer of the first floor premises to respondent No, 2 he was Badruddin Khoja, who was in possession of the same and who at no stage challenged the transfer of 1st floor premises in favour of respondent No,
2. Mr. S. M- Raza stated that his client could have purchased the 1st floor premises if it was put to public auction. In our opinion such right of the appellant was not sufficient to give him a locus standi to challenge the transfer of 1st floor premises in favour of respondent No,
2. The 3rd contention of the learned counsel for the appellant that a person cannot be transferred any property for which he had not initially applied, has equally not impressed us. We have referred in the earlier part of this judgment that in the N.C.H. Form submitted by respondent No, 2, he had applied for the property on Survey Nos. A-2874-A-2875 and in column No, 9 it was specifically mentioned that parts of the building applied for were in possession of Badruddin Khoja and the appellant's predecessor-in-title Muhammad Afzal. In these circumstances it cannot be contended that respondent No, 2 did not apply for the transfer of 1st floor residential premises in his NCH form under Settlement Scheme No,
1. The last contention of Mr. S. M. Raza, is that the order of Deputy Settlement Commissioner, Hyderabad, dated 24th January 1968 passed on the application of the appellant was an ex parte order without hearing the appellant and as such is a nullity in the- eyes of law. We find that both in the writ petition as well as in the present appeal before us the prayer was made only to set aside the orders dated4th February 1969 and 28th April 1969 passed by respondents Nos. 3 and '1 respectively. The prayer clauses both in the petition and in the present appeal made no reference to the order of the Deputy Settlement Commissioner, Hyderabad, dated 24th January, 1969. Even otherwise ware of the view that mere fact that the appellant was not heard by the Deputy Settlement Commissioner, Hyderabad, before passing of the order dated 24th January 1968, was not by itself sufficient to declare the order having been passed without jurisdiction and lawful authority unless it is further shown that the subsequent hearing granted to the appellant at the appellate and revisional stages was not adequate and sufficient and that if he would have been heard by the Deputy Settlement Commissioner, initially there was reasonable possibility of the order being different. We have already held in the earlier part of this judgment while examining the contention of the appellant that the Settlement Authorities had no jurisdiction in the matter after issuance of P. T. Ds. To the parties, that the order of the Deputy Settlement Commissioner, Hyderabad, passed on the application of respondent Nd. 2 for correction of the City Survey number did not have the effect of interfering in any manner with the property rights of the appellant. We are also of the view that results would not have been different even if the appellant was heard by the Deputy Settlement Commissioner, Hyderabad, before passing of the order dated 24th January, 1968. The subsequent hearing granted to appellant at the appellate and revisional stages in our opinion was adequate and sufficient and that he had full opportunity to place his case before the appellate and revisional authorities. The view we have taken here also finds support from a Division Bench decision of the erstwhile High Court of West Pakistan, Lahore Bench in the case of Mrs. Gladys M. Jacob v. Chief Settlement Commissioner (1). In fact the proceedings started by the appellant through the miscellaneous application dated 13th July 1968 before the Deputy Settlement Commissioner, Hyderabad, was in the nature of fresh and independent proceedings and after its dismissal on 15th November 1968 only the latter order of Deputy Settlement Commissioner, Hyderabad, dated 15th November 1968 was challenged in appeal and revision and no reference apparently was made to the earlier order dated 24th January 1968, about which complaint is now made by the learned counsel for the appellant that it was passed in contravention of the principle of audi alteram partem.
' In view of the above discussion, we find no merit in this appeal which is accordingly dismissed with costs.
(1) PLD 1966 Lab. 464