1. MUHAMMAD HALEEM, ACTG. C. J.-This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore, dated 24th of Novem--ber, 1974, by which L. P. A. No. 755 of 1966, was allowed and the order of the Settlement and Rehabilitation Commissioner, Rawalpindi, upheld.
2. The facts which have given rise to this appeal are that the appellant and his deceased brother, Wali Muhammad, who is now represented by his legal representatives, respondents 1 to 3 herein were claimant displaced persons and they were jointly transferred two shops bearing Nos. 133-A and 133-C in Sargodha City by the Deputy Settlement Commissioner, Sargodha. Both were in joint possession of these shops and had separately and applied for their transfer. Shop No. 133-A was divided privately by them and there is no dispute about it. As the appellant was in possession of an area approximately 25 sq. Ft. In excess of his share, Wali Muhammad applied to the Deputy Settlement Commissioner for apportioning the price of shop No. 133-C, who by his order dated Ist of May, 1961, directed the appellant and Wali Muhammad to pay Rs. 3,620, and Rs. 2,500, respectively.
3. Both of them appealed against this order and in the grounds of appeal they challenged the legality of the transfer also for each one of them claimed Shop No. 133-A as it was situate in front of Shop No. 133-C where sweets were prepared for being sold in the Shop No. 133-A. The Additional Settlement Commissioner, by his order dated 20th of October, 1961, dismissed the appeals.
4. Against this order both of them filed revision petitions before the Settlement Commissioner in which they again questioned the legality of the transfer; and as their entitlements were on.-equal footing, he proposed to draw the lots" and both the parties agreed to it. However, by adoption of this method, Shop No. 133-A exclusively fell to the share of Wali Muhammad and Shop No. 133-C to that of the appellant.
5. The appellant, being aggrieved by this order, filed a constitutional petition in the High Court and succeeded. The case was accordingly remanded to the Settlement Commissioner for the apportionment of the price to be paid by each of the two qua their possession of the portion of shop No. 133-C as the High Court was of the opinion that this was the only question which had to be decided by the Settlement Commissioner. Further, in its view, the order transferring these shops to the appellant and Wali Muhammad had assumed finality which matter could not again be re- opened. Wali Muhammad preferred an L. P. A. And succeeded as the Letters Patent Bench held that the appellant having himself invoked the jurisdiction of the Settlement Commissioner in the hope of a favourable result, he could not complain of that decision if the result was against him. In holding so, the Letters Patent Bench relied on Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (PLD 1964 SC 829).
6. Leave to appeal was granted to consider whether the Letters Patent Bench was correct in upholding the order of the Settlement Commissioner dated 31st of October, 1962, in the face of the earlier joint transfer having assumed finality.
7. Before we advert to the respective contentions of the counsel for the parties, we would like to point out that before the Letters Patent Bench, the appellant had tried to wriggle out of the consent to the drawing of lots and before us he candidly disowned the written compromise entered into between him and some of the legal representatives of deceased Wali Muhammad. His counsel contended that the matter should be decided on merits and we did so. Accordingly, these are the reasons for it.
8. Para. 8 of the Schedule appended to the Displaced Persons (Compensa--tion and Rehabilitation)
9. Act clearly provides that each claimant displaced person shall be transferred one shop; and if the shop is in possession of more than one claimant then it shall be transferred to the claimant who ha obtained prior possession. In this connection para. 5(d) of Settlement Scheme No. 1 provides that if the shop was allotted to two or more person jointly and each of them is entitled to retain it under the provisions of the Schedule to the Act then such persons shall submit their applications jointly unless any of such persons is entitled to retain it to the exclusion of other and in case of disagreement each claimant shall apply separately, giving out the reason for disagreement. As would appear from the order of the Deputy Settlement Commissioner, no justification is made out for the joint transfer in terms of para. 5(d) of Settlement Scheme No. 1 in the context of the fact that each one of them had applied separately for the transfer of these shops which were admittedly not treated as one unit by an Settlement authority. Further, it also does not appear that the Deputy Settlement Commissioner had applied his mind to the second proviso to para. 8 of the Scheme.
10. Therefore, in jointly transferring the two shops to the appellant and Wali Muhammad, the Deputy Settlement Commissions had acted beyond the letter of law. As such it was an exercise of authority which had no legal effect whatsoever. In the circumstances it cannot be regarded as a final order in the absence of an appeal against it. Conse--quently, the Settlement Commissioner was entitled to reopen the question of transfer afresh. The Letters Patent Bench had not adverted to this aspect of the matter but as the submission was realised in regard to the finality of the order we are constrained to hold that for the above reasons it was a nullity.
11. Again, as the parties bad agreed that their entitlement should abide by the result of the lots, no exception can be taken to it for on the principle of estoppel inter partes the appellant cannot question it. In this connection we would refer to the observations of Vanghan Williams, J. In South American and Mexican Company Ex parte Bank of England ((1895) 1 Ch. D 37), which are as under:- "Under these circumstances I have only to consider, with reference to the second question, Mr. Moulton's suggestion, that a judgment by consent, upon which the Court has not exercised its mind, does not and cannot raise an estoppel inter partes. I can only say this is the first time I have ever heard such a proposition suggested. It has always been the law that, a judgment by consent or by default raises an estoppel just in the same way as a judgment after the Court has exercised a judicial discretion in the matter. The basis of the estoppel is that, when parties have once litigated a matter, it is in the interest of the estate that litigation should come to an end; and if they agree upon a result, or upon a verdict, or upon a judgment, or upon a verdict and judgment, as the case may be, an estoppel is raised as to all the matters in respect of which an estoppel would have been raised by judgment if the case had been fought out to the bitter end."
12. Therefore, no exception can be taken to the order if the entitlement was not decided judicially. We also endorse the principle on which the Letters Patent Bench had non-suited the appellant by holding that the appellant cannot challenge the result of the lots on the assumption that the Settlement Commissioner bad no jurisdiction to reopen the question if he had himself invoked his jurisdiction.
13. Accordingly, the appeal is dismissed with costs.