1. MUHAMMAD HALEEM, ACTG. C. J.-This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore, dated 11th of Nove--mber, 1973, by which Writ Petition No. 748-R of 1973 was dismissed.
2. The appellant is a transferee of a business premises bearing No. M-6, situate on .The Mall, Rawalpindi, which was transferred to him against his N. C. S. Form, followed by a P. T. O. Dated 18th of May, 1960 and a P. T. D. Dated 17th January, 1964. The first respondent herein was transferred a residential house, bearing No. B-7, adjacent to it but separated an open space, 26 feet wide, and a P. T. O. Was issued in her favour on 31 of August, 1960, followed by a P. T. D. Dated 8th of November, 1962. It so happened that the first respondent got the site-cum-line plan prepared in respect of her property from the Cantonment Land Engineer on 17th of July, 1972, which was endorsed as correct by the Deputy Settlement Commis--sioner on the same date. In this plan, the space separating the two buildings is shown as a passage which was seriously disputed by the appellant as, according to him, it was the site of the Service Station and the adjoining courtyard of the appellant and shown as such by the Cantonment Land Engineer in his site-cum-line plan which was also approved by the Deputy Settlement Commissioner on 27th of October, 1972. This site-cum-line plan was got prepared for getting the property mutated in his name in the Can--tonment Board record. In December, 1971, the first respondent made certain alterations and opened doors towards the passage which, according to her, was a public street. The Cantonment Board, thereupon, issued a notice to her on 6th of December, 1971, to desist from making alterations without proper sanction but she paid no heed to it and, thereafter, two further notices were sent on 22nd of February, 1972 and 26th of April, 1973, respectively. However, she managed to get the action stayed and,st thereafter, she filed a suit on 4th of November, 1972, against the appellant and the Cantonment Board in which she prayed for a permanent injunction to restrain them from interfering with the alterations. The appellant also filed a suit for mandatory injunction to direct her to close the doors and gates and further asked for a prohibitory injunction to restrain her from making any alterations in future. By a common judgment dated 18th of April, 1971, the trial Court decreed the suit of the first respondent and dismissed that of the appellant.
3. The appeals against this judgment were dismissed on 9th of February, 1980. The appellant, thereafter, filed Civil Revisions in the High Court, which are pending for decision.
4. The first respondent, however, preferred an appeal before the Additional Settlement Commissioner on 31st of March, 1972, against the approval of the appellant's site-cum-line plan by the Deputy Settlement Commissioner on 26th of October, 1982, which was accepted by order dated 30th of April, 1973. Against this order the appellant preferred a revision before the Settlement Commissioner who, recorded the consensus of the parties as under --- However, it was agreed that all the previous orders passed in this regard be set aside and site plans obtained by the parties and the properties transferred to the petitioner and the respondent demarcated keeping in view the record maintained by the Land Branch of the Local Cantonment Board." and remanded the case on 5th of July, 1973, to the Deputy Settlement Commissioner to re- demarcate the property afresh after hearing the parties and associating the representative of the Military Estate Officer and the Cantonment Board, Rawalpindi.
5. The appellant challenged this order in the aforementioned petition in which he seriously disputed the above concession but the High Court did not accept it as there was no material to hold otherwise. Accordingly, it gave effect to it and further observed that the Settlement authorities were fully competent to decide the question of demarcation of the properties even after 'the issuance of the P. T. D. Lastly, the High Court held :- ---In such a. Situation, the only just solution is to set aside all such plans as well as the orders supporting the same. Moreover, neither the Settlement Commissioner' nor even the Additional Settlement Commissioner has decided anything against any party regarding site plan or demarcation. The case has only been remanded to the Deputy Settlement Commissioner for re- demarcation." The appellant felt aggrieved and sought leave from this Court which was granted to consider whether, after the issuance of the P. T. D., the Settlement authority had "become functus officio with regard to any dispute including that of demarcation of property".
6. On the appellant's site-cum-line plan, the Deputy Settlement Commis--sioner has endorsed the word "seen" on 26th of October, 1972. This obviously implies an approval as was so construed by this Court in The Lahore Central Co-operative Bank Ltd. v. Pir Saifullah Shah () PLD 1959 SC (Pak.)
7. 210). Therefore, to all intents and purposes, the Deputy Settlement Commissioner, by expressing so, agreed to the inclusion of the space which was asserted by the first respondent to be a public street as part of his property. It had all the incidents of demarcation of property and the question, therefore, arises as to whether the Deputy Settlement Commissioner had jurisdiction to do so after the issuance of the P. T. D. This contention was considered by this Court in S. Anwar Hussain Sani v.
8. Sarfraz Ahmad and others ( PLD 1971 SC 669) and it was held that after the issuance of the P. T. D.
9. The property went out of the compensation pool and the Settlement authorities became functus officio to determine and demarcate the properties except to the extent provided for in the Permanent Transfer Rules. This Court further approved the decision of the Lahore High Court in Syed Ali Moazam v. M. A. Effendi and others (PLD 1.965 Lah. 193) in which a similar dispute was involved. Again, this Court in Mst. Aziz Fatima and others v. Abdul Hameed Farooqi and others (1976 SCMR 95) and Sufi Abdul Ghani v. Nazir Ahmad and others 1976 SCMR 493) reiterated the same view.
10. The learned counsel for the first respondent, however, contended that in S. Anwar Hussain Sani's case the view was expressed on the assumption that there was a demarcation of the property before the issuance of the P.
1. D. But this submission is misconceived as the transfer under the Displaced Persons (Compensation and Rehabilitation) Act was a grant and regulated by the Permanent Transfer Rules, which in effect did not permit the demarcation of the property. The other substantial reason was that the issuance of the P. T. D took the property out of the compensation pool and, therefore, the Settlement authority could not exercise any jurisdiction over it under the Displaced Persons (Compensation and Rehabilitation) Act, which functions and power were exercised so long as it remained therein.
11. Accordingly, the contention of the appellant prevails and the impugned order of the High Court is set aside and the appeal is allowed but with n, order as to costs.