ABDUL SHAKURUL SALAM, J.--This order will dispose of review application No. 80(80 in W. P. No. 525/R'of 1975 and Review Application No. 122/80 in W. P. No. 472/R of 1975 as these are connected matters.
2. The dispute relates to a quarter in property No. S-XX-3-S-6, Canal Park, Lahore. Occupants of the quarters therein filed N. C. H. Forms under Settlement Scheme No. VIII. Report was submitted to the Deputy Settlement Commissioner giving a list of the applicant: who had filed forms, included wherein is the name of Wazir Muhammad (since deceased and represented by his heirs). The Deputy Settlement Commissioner directed the applicants to clear the arrears of rent where--after their forms were to be taken up. The order of the Deputy Settlement Commissioner is dated 4th May, 1968. Wazir Muhammad deposited a sum of Rs. 100 in the treasury on 19th May, 1971. The quarter in question and two others were put to auction on 27th May, 1971, and the quarter in question was purchased by Ghulam Sarwar. The auction was confirmed on 11th August, 1971, and the auction-- purchaser Ghulam Sarwar was issued a P. T. D. On 18th October, 1971, Wazir Muhammad and two other applicants filed separate appeals against the auction. Kh. Abdul Sattar, Additional Settlement Commissioner, heard the appeals and decided that "the auction of the quarters in dispute which was held without disposing of the N. C. H. Forms of the petitioners v and of their predecessor in interest and without providing them any opportunity of being heard, cannot be allowed to sustain and is set aside. The case is remitted to the learned Deputy Settlement Commissioner with the direction that he should dispose of N. C. H. Forms of the petitioner and their successor-in-interest in accordance with the provision of law." This is vide order dated 28th May, 1974.
3. In the remand proceedings, the Deputy Settlement Commissioner did not transfer the quarter to Wazir Muhammad on the ground that he had not filed the forms. The prayer of the auction- purchaser Ghulam Sarwar for restoration was rejected on the ground that the auction had already been set aside by the learned Additional Settlement Commissioner. The order of the Deputy Settlement Commissioner is of 12th May, 1975. Wazir Muhammad challenged this order in W. P. No. 472/R/75, which was accepted by Mr. Justice Zain-ul-Abidin (as he then was) and the officer concerned was directed to pass an order for transfer of the quarter in favour of Wazir Muhammad.
This is vide order dated 9th April, 1980. It may be noticed that the auction purchaser, namely, Ghulam Sarwar was not a party in the writ petition. He, in turn, had challenged the order of the Deputy Settlement Commissioner dated 12th May, 1975, by means of an appeal which was dismissed for lack of jurisdiction by the Settlement! Commissioner on 6th June, 1975. He had, then, filed Writ Petition No. 625/R-75, in which it may be noticed, the occupant. Wazir Muhammad was not impleaded as a party. Since it was not known nor brought to the notice of the Court that on the W. P. Of heirs of Wazir Muhammad, the quarter had been ordered to be transferred to Wazir Muhammad and, on the other hand, it was represented that the quarter had not been transferred to Wazir Muhammad and the later had taken no steps in this behalf, it was directed, to complete Settlement operation, that the auction in favour of Ghulam Sarwar be restored as it was set aside for the benefit of Wazir Muhammad and when the later had not got the benefit, the former ma not be deprived. This is vide order dated 23rd April, 1980. Heirs of Wazir Muhammad whose own W. P. No. 472/R-75 had been accepted on 9th April, 1980, challenged the order dated 23rd April, 1980, in W. P.
No. 525/R-75 in favour of the auction purchaser by means of Review Application No. 80/80.
Similarly, the auction-purchaser Ghulam Sarwar has filed Review Application No. 122/80 in a W. P.
No. 472/R-75 which had been accepted to favour of the heirs of the occupant Wazir Muhammad.
Since the order in the latter case had been passed by a learned Judge who has left office, the matter has been referred to this Division Bench, as one of us (A. S. Salam, J.) had passed the order in the other W. P. No. 525/R-75.
4. We have heard the learned counsel for the heirs of Wazir Muhammad, the occupant, and of Ghulam Sarwar, the auction-purchaser, at great length and have perused the record with their assistance. The important fact in relation to these review applications is that the writ petitions were allowed when the other contestant of the quarter was not a party to the proceedings and had filed his own independent writ petition. If both petitions had been tagged together or heard together, that would have avoided the filing of these review petitions. In any case, the entire matter has been heard in the presence of both the parties seeking transfer of the quarter in question.
5. From the report of the Settlement Inspector and the order of the Deputy Settlement commissioner dated 4th May, 1968, it is quits clear, that Wazir Muhammad had filed N. C. H. Form.
During the pendency of the form, the property could not be auctioned on 27th May, 1971 They Additional Settlement Commissioner was right in setting aside the auction vide order dated 28th May, 1974. The order was not challenged by the auction-purchaser Ghulam Sarwar by means of any appeal, revision; etc. When the matter came on remand before the Deputy Settlement Commis--sioner for disposal of the forms, the latter declined to transfer the quarter in favour of Wazir Muhammad on the ground that the latter had not filed the form. The Deputy Settlement Commissioner was in error to have said so when there was the finding of the appellate Court, Additional Settlement Commissioner, that Wazir Muhammad had filed the form and it was on that basis and for the reason of non-disposal of the form that the Additional Settlement Commissioner had annulled the auc--tion and remanded the case. In any event, the order of the Deputy Settle-- ment Commissioner dated 12th May, 1975 was set aside in W. P. No. 472/11--75 and it was directed that the property be transferred to Wazirl Muhammad. The contentions of the learned counsel for the auction-- purchaser Ghulam Sarwar that Wazir Muhammad hail not filed the form or that the auction should be restored in favour of Ghulam Sarwar, have no force for the reasons that firstly, right in the beginning, the Deputy Settlement Commissioner vide order dated 4th May, 1968, proceeded on, the basis that Wazir Muhammad had filed the form. The Additional; Settlement Commissioner vide order dated 25th May, 1974, after hearing; both the parties, found that Wazir Muhammad had filed the form. Even, if the later had not filed the form, he would be entitled to transfer being an occupant under the latest law viz. Settlement Scheme No. IX. Ghulami Sarwar, the auction-purchaser, would have no right to question the transfer in favour of Wazir Muhammad either in view of the earlier form submitted by him under, Settlement Scheme No. VIII or under Settlement) Scheme No. IX, because the auction in his favour was set aside by the Additional Settlement Commissioner on 28th May, 1974, and against this order, the auction-purchaser, Ghutam Sarwar, never took any proceedings by means of any appeal or revision, etc. No doubt, his Writ Petitions No. 525/11-75 was allowed but that was in the circumstances that there was no contestant for the property. Wazir Muhammad or his heirs had', not been impleaded in that writ petition and it was felt that if nobody else; was seeking the transfer or had entitlement thereto, there was no need toil deprive the auction-purchaser. But now when it is established that the occupant Wazir Muhammad was entitled to and now his heirs are entitled, to transfer, the auction- purchaser Ghulam Sarwar cannot come forward) to ask for restoration of the auction which had been set aside some seven years ago on 28th May, 1974 he had not challenged that order in time.
In this view of the matter, the review application filed by the heir of Wazir Muhammad in W. P. No. 525/11-75 bearing No. 80/80 is allowed. The Review Application No. 122/80 in W. P. No. 472/11-75 filed by the auction-purchaser Ghulam Sarwar fails and is, therefore, dismissed. In the circumstances, the parties shall bear their own costs.