1. ' ABDUL HAFEEZ MEMON, J.-This letters Patent Appeal is direct against the judgment, dated 16-6- 1973, passed by the then learned Single Judge, whereby he allowed the petition filed by the respondent against the Settlement Authorities and the appellant herein and maintained the transfer of an evacuee House No, A/10-30/14 situated at Kalimori, Massan Road, Hyderabad, to the respondent.
2. ' The relevant facts are that the aforesaid house was transferred to the respondent in the earmarking in December, 1969 and P. T. O. Was issued to him on 1-1-1960. He thereafter gave statutory notice to the occupants of the house for the payment of rent. The latter having failed to pay the rent, the respondent brought ejectment proceedings against them before the Rent Controller. During these proceedings, however, one Dhuni Khan, predecessorin-interest of the appellant, claimed that he had filed the C. H. Form for transfer of the said house and that it should have been transferred to him. The Additional Settlement Commissioner referred this application to the Deputy Settlement Commissioner (Judicial) for determination of the entitlement of the appellant's predecessor-in-interest to the transfer of the house in question. The Deputy Settlement Commissioner (Judicial) accordingly enquired into the matter and held that the said predecessor- in-interest of the respondent did file his C. H. Form but the same was misplaced in the Settlement Department, and, by his order dated 30-10-1961, allowed him to/file duplicate C. H. Forth, but he did not determine the question of entitlement either of the predecessorin-interest of the appellant or the respondent and, instead, sent the case to the Deputy Settlement Commissioner (Administration) for determination of the entitlement of the two to the transfer of the house in question. The last said Officer by his order dated 21-2-1962, without giving any notice to the respondent, accepted the claim of the predecessor-in-interest of the appellant, ordered the transfer of the house to him and cancelled the transfer of the house to the respondent. The respondent on coming to know of the aforesaid order in the year 1961, during the course of ejectment proceedings, moved the Deputy Settlement Commissioner, the Additional Settlement Commissioner and the Settlement Commissioner in appeal and revision but without any success.
3. He therefore filed petition in the High Court under Article 98 of the late Constitution. The two main contentions urged before the learned Single Judge in the-main petitions were that (i) the order dated 21-2-1962, cancelling the transfer in favour of the respondent having been passed by the Deputy Settlement Commissioner (Admn.), without giving any notice to the respondent, was void and without jurisdiction ; and (ii) that the predecessorin-interest of the appellant having filed Form 'E' for transfer of house No, B/5/20 at Matli, District Hyderabad, he was deemed to have withdrawn the C. H. Form filed by him and was therefore not entitled to the transfer of the house in question.
4. The learned Single Judge upheld both the contentions and allowed the petition by his judgment dated 16-6-1971 and maintained the transfer in favour of the respondent. Hence this Letters Patent Appeal.
5. As to the first contention upheld by the learned Single Judge, Mr. Ismail Munshi, learned counsel for the appellant, was unable to assail the finding of the learned Single Judge. He, however, contended that after the said finding was given, the propriety demanded that the case ought to have been remanded to the Deputy Settlement Commissioner (Admn.), to decide the question referred to him by the Deputy Settlement Commissiones (Judicial) ride his order dated 31-10-1961, after giving opportunity of hearing to the respondent and should not have allowed petition, as was done by him. With regard to the second contention upheld by the learned Single Judge regarding filing of the Form `E' by the predecessor-in-interest cf the appellant, namely, Dhuni Khan. Mr. Ismail Munshi submitted that throughout the proceedings before the Settlement Authorities, to which the respondent was a party, this plea had never been raised by the respondent. Consequently, it was not open to the learned Single Judge to give a finding on the said contention based on facts which was disputed by the appellant by denying that any such form had been filed by the predecessor- in-interest of the appellant.
6. ' As to the first contention, it being an admitted position that no notice was given to the respondent before the transfer in his favour was cancelle by the Deputy Settlement Commissioner (Admn.), the order was passed by the Officer not only in violation of paragraphs 10 of the Scheme No. 1 framed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 but also the Rules of natural justice. The learned Single Judge was, therefore, A eminently right in holding the cancellation to be without lawful authority on this ground alone. However, we have to agree with the learned counsel for the appellant that after having so held, the proper course should hay been to remand the matter to the Deputy Settlement Commissioner (Admn. For rehearing the case after giving notice to the respondent.
7. ' As to the second contention of the learned counsel regarding filing of the Form 'E' by the predecessor-in-interest of the appellant, the pleadings before the Settlement Authorities below would, indeed, show that this plea had never been raised before them by the respondent and it was for the first time mentioned in the petition before the learned Single Judge. That being so, and it having been disputed by the appellant that any such form had been filed by his predecessor-in- interest, it was only proper that this question, which decided the fate of the petition, ought to have been referred to the Settlement Authority below for determination after giving opportunity to both the contending parties of leading any evidence on the point, as it was no open to the learned Single Judge to go into such disputed question of fact raised for the first time in the petition and give a finding of fact thereon in exercise of his constitutional jurisdiction. Reference in this connection may, if necessary, be made to PLD 1970 SC 30 and 1968 SCMR 88. Indeed, other the learned counsel ultimately agreed that it was only just and proper that the case is remanded to the Authmisod Officer determining the entitlement of the parties to the house in question after hearing both the parties and giving them opportunity of leading any evidence that they wish to do so, and filed a joint draft in this behalf.
8. ' For the aforesaid reasons, while maintaining the order of the learned Single Judge to the extent of his finding that the cancellation of transfer of the house in dispute to the respondent without notice to him was without jurisdiction and his quashing all the orders passed by the Settlement Authorities subsequent to the order dated 31-10-1961 passed by the Deputy Settlement Commissioner (Judicial), we modify the impugned judgment in that we remand the case to the Authorised Officer of the Settlement Department to give a fresh decision according to law as to the entitlement of the parties to the house in dispute after giving finding on the two questions, namely, whether (1) the predecessor-in-interest of the appellant was entitled to the transfer of the house in dispute on the basis of C. H. Form filed by him as found by the Deputy Settlement Commissioner (Judicial) in his order dated 31-10-1961 and (ii) the predecessor-in-interest of the appellant had filed Form 'E' for the transfer of the house No, B/520, at Math, District Hyderabad, and if so, its effect on his entitlement to the house in dispute, after hearing the parties and giving them opportunity of leading any evidence that they might wish to do so. Until the case is decided on remand by the Authorised Officer, the parties shall maintain status quo with regard to the transfers in their favour.
9. ' With the above notification the appeal stands disposed of with no order as to costs.