' The facts leading to the present petition under Article 199 of the Constitution are somewhat lengthy but ignoring the unnecessary details they may shortly be stated as follows :
2. The disputed property is a house situate in Mohallah Ander Shehr. This was an evacuee property and was available for transfer. The Settlement Authorities held that Subedar Major (Retd.) Aziz Ahmed (petitioner), his brother Fazal Ahmed (predecessor of respondents Nos. 5 to 9), his sister Mst. Bilqees Begum (respondent No, 4) and his mother Mst. Bhag-un-Nisa (now dead) were entitled to the transfer of this house. Appendix X was issued to the petitioner, who was acting for himself and as attorney of the others, whereby transfer was to be affected on payment of Rs, 1,05,600. Since the petitioner and his other co-sharers were not in a position to pay the entire amount, they entered into an agreement of association presumably under para. 33 of Settlement Scheme No, 1 with Mst. Sardar Begum respondent No, 1 on 5-1-1960. The deed of association stipulated inter alia that the petitioner and his co-sharers would utilize their compensation book of Rs, 30,300 and the balance of Rs, 69,720 shall be paid by respondent No, 1 and that whereas the petitioner and his co-sharers would be entitled to 30% share in the house, respondent No, 1 would get the remaining 70% share. Subsequently the transfer price was reduced from Rs, 1,05,600 to Rs, 72,000 by the Settlement Authorities. The petitioner and his co-sharers approached the Deputy Settlement Commissioner that they being entitled to the transfer of the house and then being able to pay the reduced price, the entire house should be transferred to them with the exclusion of respondent No 1 by cancelling the agreement of association. On the recommendation of the Deputy Settlement Commissioner, the Additional Settlement Commissioner, by his order dated 18- 5-1962, accepted the prayer and directed the transfer of the entire house to the petitioner and his co-sharers. This order had been passed in the absence of respondent No 1 and she approached the Settlement Commissioner in revision but without any success inasmuch as her revision petition was rejected on 2-7-1962. Respondent No 1 then invoked the extraordinary jurisdiction of this Court under Article 98 of 1962 Constitution. This Court, by order dated 30-10-1967, accepted the stand taken by respondent No 1 that the deed of association having been entered into by petitioner and his co-sharers on the one hand and respondent No 1 on the other hand, the same could not be unilaterally altered, cancelled or rejected. The order of the Additional Settlement Commissioner dated 18-5-1962 and that of the Settlement Commissioner dated 2-7-1962 were held to be without lawful authority and as such were quashed.
3. This Court in the concluding portion of its order of 30-10-1967 observed as follows :- "It was urged by the learned counsel for respondent No 1 that the petitioner is not entitled to 70% share in the property for after the reduction in its evaluation price from Rs, 1,05,600 to Rs, 72,000 as the amount paid by respondent No 1 towards the evaluation price would entitle him to more than 30% share. This question, however, is not before us, nor was it as such contended by respondent No 1 before the Settlement Authorities. We would, therefore, leave this question to be determined by the Settlement Authorities in the first instance, if approach is made to them by any of the parties."
4. The petitioner then again approached the Deputy Settlement Commissioner requesting that the shares of the parties be refixed after taking into consideration the payment made by each of them.
Simultaneously respondent No, .1 made an application for demarcation of her share in the disputed house. The learned Deputy Settlement Commissioner by his order dated 6-6-1972 held that no change could be made in the respective shares of parties which, according to the deed of association, were 30% and 70%. He also made a demarcation of the property in that ratio by partitioning the same by metes and bounds. The petitioner's appeal to the Additional Settlement Commissioner and revision to the Settlement Commissioner were also rejected.
5. By the present petition a declaration is sought to the effect that the partition effected by the Deputy Settlement Commissioner (respondent No, 2) of the disputed house was a nullity. It was also prayed that respondent No, 3 be directed to issue P. T. D. In respect of the house in favour of the petitioner and respondent No, 1 by fixing their respective shares of ownership therein as 62 % and 38%.
6. It is pertinent to note that when the present petition was filed the petitioner did not make his co- sharers as parties. On an application made on their behalf, however, they were subsequently impleaded as respondents Nos. 4 to 9 and the learned counsel for the petitioner does not say that they have no share in the property but contends that the petitioner's claim in the present petition was in fact for the benefit of these respondents as well. The learned counsel appearing for respondent No, 1, however, first of all, contended that the petitioner having not come with clean hands inasmuch as he intended to oust respondents Nos. 4 to 9, was not entitled to the grant of discretionary relief under Article 199 of the Constitution and that on that ground alone the petition is liable to be dismissed. No doubt a person invoking the extraordinary jurisdiction of this Court is expected to state the facts correctly and fairly without suppressing an material from the Court and his presentation of facts must be candid and not misleading. Nevertheless in the present case I do not think that failure to implead respondents Nos. 4 to 9, in the first instance, is fatal to the petitioner's claim. The petition could be brought by any of the persons' aggrieved and the material placed by him on record including the association deed clearly establishes the rights of respondents Nos. 4 to 9. The omission to include their names does not appear to be the result of any intended fraud on the part of the petitioner, for the record was clear enough to show that his rights are tagged with the rights of these respondents. No adverse inference regarding the bona fides of the petitioner can, therefore be drawn specially when these respondents have not taken any such objection.
7. The learned counsel appearing for respondent No, 1 then contended that the petitioner has challenged the order of respondent No, 2 alone which was passed on 6-6-1972 and has not referred to the order of respondent No, 3 and that of the Settlement Commissioner and consequently the petition is liable to fail because even if the order of respondent No, 2 is set aside the orders of respondent No, 3 and the Chief Settlement Commissioner would stand in his way. In this contention too I find no force inasmuch as it was the order of respondent No, 2 which had been upheld by respondent No, 3 and the Chief Settlement Commissioner and in fact the subsequent two orders merged in the order of the said respondent No,
2. No doubt the petition is not happily worded but the intention is quite clear and is sufficient to indicate that the actions of all the Settlement Authorities subsequent to the decision on the writ petition filed by respondent No, 1 have been made the subject of challenge. For this reason alone, therefore, the petition cannot fail.
8. The learned counsel for the petitioner has contended that in view of para. 3 of Press Note of the 13th February 1960, the petitioner has to utilize the entire amount available in his compensation book and that in that case he has to pay Rs, 30,300 and the balance of Rs, 41,700 is to be paid by respondent No,
1. It was contended that when the price of the property was taken at Rs, 1,05,600 respondent No, 1 was entitled to 70/100 shares. When now the price has been reduced to Rs, 72,000 and the petitioner has to pay Rs, 30,300 the share of respondent No, 1 in that ratio would not exceed 38% and that the petitioner and his co-sharers would be entitled to not less than 62%. He contends that exhaustion of the entire amount of Rs, 30,300 is the statutory liable of the petitioner and his co- sharers and that will override all the provisions of the association deed and that the share shall have to be re-allocated in accordance with the proportion in which the amount is paid. In this contention I find no substance. The association deed, specifically provides that respondent No, 1 would be entitled to 70% share and the petitioner and his co-sharers to 30 % share. It is to be noted that even at the time when the association deed was written the emphasis was on the ratio in which the shares were to be allocated and not on the prices. It was specially mentioned that any excess amount that may be payable shall be paid by respondent No,
1. The essence of the contract thus appears to be that 70% share had to go to respondent No, 1 who came to the aid of the petitioner and his co-sharers when they were not in a position to get the property from their own resources. The provisions of the Press Note therefore, are not irreconcilable with the association deed. Whether a refund out of Rs, 30,300 is or is not made to the petitioner and his associates, they cannot claim more than 30% share in the house to which they had agreed on 5-1-1960 prior to the issuance of the Press Note. In this regard, therefore, the petitioner must fail and the orders of the Settlement Authorities that the petitioner and his co-sharers are entitled to 30% share only are unassailable.
8. Lastly the learned counsel for the petitioner has contended that the order of the Deputy Settlement Commissioner demarcating the house is without lawful authority and has got to be set aside. There is no provision in the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) authorizing the Settlement Authorities to effect the demarcation of the property which is jointly obtained by the transferred and his associates. In fact, after accepting the association deed and transferring the property jointly in the ratio of 30:70, the Settlement Authorities became functus officio and it was then for the new owners themselves to demarcate the property privately or to get it partitioned through a Court of competent jurisdiction. The learned counsel appearing for respondent No 1 has not been able to show me any law or rule conferring any power of demarcation on the Settlement Authorities in such cases. He, however, contended that the petitioner's main case is the allocation of shares and not of demarcation and, therefore, the prayer, that the orders of the Settlement Authorities demarcating the property should be declared invalid, is outside the scope of the present petition. This argument is without any substance inasmuch as the petitioner has specifically prayed that the order of demarcation should be declared a nullity.
10. In view of what has been said above the orders of the Settlement Authorities with regard to the allocation of shares in the ratio of 30:7 are upheld. However, the petition is partially accepted and the order of the Settlement Authorities demarcating the property are declared to b null and void and without lawful authority. The parties should either b agreement between themselves or through competent forum seek the partition of the house.
11. There shall be no order as to costs in this petition in view of the partial success of the petitioner.
Petition partially accepted.