' This petition is directed against the order dated 6-8-1977 passed by the Settlement Commissioner Sind, whereby he did not cancel the transfer of house No, 1I-A/152, situated at Shahpur Chakar, District Sanghar, in favour of respondent No, 4 and ordered that the price be paid by him in cash.
2. The facts leading up to the present petition briefly stated are that, the above-mentioned house was disposed of in favour of Muhammad Hamid Khan respondent No, 4 on 6.12-1959 by the department, under earmarking proceedings being a successful candidate. The petitioner No, 2 Sher Muhammad Khan challenged the transfer in favour of respondent No, 4 in appeal No, 648/60 on the ground that it was a Dharamshala and, therefore, a trust property and was not transferable.
The appeal was dismissed by the Deputy Settlement Commissioner Nawabshah by his order dated 18-1-1961. The petitioner No, 2 challenged this order in revision before the Additional Settlement Commissioner and Rehabilitation Commissioner Hyderabad who remanded the case for finding out whether the house in dispute is a Dharamshala. The matter after investigation again went before the learned Additional Settlement and Rehabilitation Commissioner Hyderabad who on the basis of the inquiry conducted by his subordinate officers held that the house in dispute belonged to one Hindu Chanchaldas and was not Dharamshala. The contention of the petitioner No, 2 to the effect that he was in possession of the house in dispute and was entitled to its transfer was also rejected on the ground that his belated C.H. Form was accepted by the Additional Settlement Commissioner on the condition that the house was still available for transfer. The Additional Settlement Commissioner held that since the house was not available at the time the C.H. Form of Sher Muhammad was admitted by the Additional Settlement Commissioner, he was not entitled to transfer of the house and the house was rightly disposed of in earmarking in favour of respondent No, 4 Muhammad Hamid Khan. The petitioner No, 2 filed a Writ Petition No, 109/62 challenging the order of the Additional Settlement and Rehabilitation Commissioner dated 16-1-1962. It was also dismissed on the ground that the petitioner did not submit any C.H. Form. On 19-11-1959, as he wrongly considered the house to be a Dharamshala. The petitioner No, 2 then approached the Additional District Judge and Settlement Commissioner in Revision No, 531/65 which was al so dismissed by an order dated 24-5-1966. Ultimately, the petitioner No, 2 filed a Revision No, 19/76 before the Settlement Commissioner Sind, at Karachi, who vide his order dated 6-8-1977 dismissed it refusing to cancel the transfer in favour of respondent No, 4 and directing that the price of the disputed house be paid by him in cash. This order has been challenged this petition as being illegal and without lawful authority with the prayer that the house in dispute be transferred to the petitioners and the respondents be restrained from interfering with their peaceful possession.
3. I have heard Mrs. Salima Nasiruddin, the learned counsel for the petitioners and Mr. Hassan A.
Shaikh, for the respondent No,
4. The respondents Nos. 1, 2 and 3 are official respondents.
4. Mrs. Salima Nasiruddin, the learned counsel for the petitioners, has mainly contended that the impugned order dated 6-8-1977, passed by the Settlement Commissioner Sind, Karachi, is illegal and without lawful authority inasmuch as it is in violation of Scheme No, V of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), as it provides that only those claimants could take part in the earmarking who had no house in their possession, whereas the respondent No, 4 apart from the house transferred to him in Punjab has another house in Shahpur Chakar viz. No, 1-A/166. It is also contended that the respondent No, 4 could not be transferred a house in remarking since the petitioner No, 2 had filed C.H. Form which the authorities failed to consider. It is further contended that the house in dispute could not be transferred to respondent No, 4 as it is an evacuee trust property.
5. Mr. Hassan A. Shaikh, the learned counsel for the respondent No, 4 has contended, firstly that no new and fresh plea can be urged for the first time in the writ petition ; secondly, that no findings on questions of fact can be given in this petition ; thirdly, the petitioners have not come in this petition with clean hands and they are not entitled to any relief : and forthly, that this petition seriously suffers from laches and, is, therefore, liable to he dismissed.
6. The house in dispute No, 11-A/152, situated at Shahpur Chakar, District Sanghar has not been proved to be an evacuee trust property in-spite of long standing litigation between the parties in that respect. The order dated 15-2-1963 in Writ Petition No, 109/62 by the High Court of West Pakistan, Karachi Bench and order dated 24-5-1966 passed by the Additional District and Settlement Commissioner, Sanghar, are very clear in that respect. On the contrary, the petitioners in para. 5 of the petition referred to the certificate marked as Annexure "A/2" from the Mukhtiarkar Shandadpur in support of their plea to the effect that the said house was an evacuee trust property, but the certificate Annexure "A/2" which is on the record clearly shows that the house in dispute is a property of .a Hindu Chanchaldas and is not a Dharamshala. It would, therefore, be clear that the statement of petitioner in the Writ Petition itself is not supported by the document which is referred therein to the effect that the house in dispute is an evacuee trust property and, therefore, could not be transferred to respondent No,
4. The contention to the effect that it could not be transferred in earmarking, the Settlement authorities having failed to consider C.H. Form filed by petitioner No, 2 is also without force, for the reason that there is no evidence that the petitioner No, 2 had filed C.H. Form. On the contrary there is a clear finding in Writ Petition No, 109/62 by the West Pakistan High Court Karachi Bench by an order dated 15-2-1963 to the effect that the petitioner did not submit any C.H. Form on 19-11-2959. It is, therefore, contended that the respondent No, 4 was rightly transferred the house in dispute in earmarking. However, this Court in this Writ Jurisdiction cannot give findings on questions of fact and cannot reopen the question as to whether the petitioner No, 2 had filed the CH Form or not and as to whether the house in dispute was an evacuee property or an evacuee trust property. So far the plea raised on behalf of the petitioners that the impugned order passed by the Settlement Commissioner is in violation of Scheme No, V of the Displaced Persons (Compensation and Rehabilitation) Act, (XXVIII of 1958) as only those claimants could take part in the earmarking who had no house in their possession is concerned, there is no documentary evidence or otherwise on the record that the respondent No, 4 had any house either in Shahpur Chakar or in Punjab. Moreover, this new plea which was never raised before the Settlement Authorities can neither be raised in this petition nor there can be any finding on a question of fact in this petition by this Court to the effect that the respondent No, 4 had any house anywhere either in Punjab or at Shahpur Chakar. Accordingly, I find no substance in the pleas raised on behalf of the petitioners by their learned counsel.
7. As regards the contentions raised on behalf of the respondent No, 4, they do not seem to be without force, as neither new and fresh pleas can be raised in this petition at this stage, nor findings on questions of fact can be given in the Writ Jurisdiction, as already discussed above. What I further find that the pleas to the effect that the house in question is an evacuee trust property raised in para. 5 of the writ petition has not been supported by the certificate Annexure "A/2" as stated therein. It is also stated in para. 11 of this petition that Const. Petition No, 109/62 was dismissed on the ground that house in dispute cannot be treated as an evacuee trust property but the order dated 15-2-1963 in Writ Petition No, 109/62 clearly shows that it was dismissed on the ground that the petitioner did not submit any C.H. Form in November, 1959, as alleged by him because he considered the house in dispute as statements in the petition itself, which are clearly belied by the documentary evidence produced by the petitioners alongwith the writ petition.
Therefore, they do not seem to have come in this petition with clean hands. What I further find that the impugned order was passed by the Settlement Commissioner Sind on 8-8-1977 when this Writ Petition was filed on 4.10-1978 after a period of about 14 months, and this undue delay in filing this petition, when the matter had reached finality long back, has not at all been explained on behalf of the petitioners. In fact no explanation has been offered in that respect at all. The petition, therefore, very seriously suffers from laches as well.
8. For the foregoing reasons, there is no substance in this petition. It is, accordingly, dismissed with costs.