' This Petition impugns the orders passed by the Deputy Settlement Commissioner, Sukkur dated 9th February, 1972 and 21st January, 1974 and that of Additional Settlement Commissioner, Sukkur, dated 16th May, 1974 as being illegal and without lawful authority.
2. Briefly the facts leading up to this Petition are that respondent No, 3 Mumtaz was transferred house No, 1D/51 corresponding to C S No, D-234/1, situated at Tando Adam on N C H form and P T 0 was issued to him on 3rd February, 1961 and P. T. D. Was issued to him on 24th October, 1963. He got the house mutated in City Survey Record on the basis of PTD. The Petitioner was in possession of the adjoining house bearing No, 1D/51A corresponding to C S No, D-234/2. He purchased it in auction and PTD was issued to him on 27th February, 1965. Originally the two houses formed one survey number 234 and the Settlement authorities in order to transfer the house above mentioned to respondent No, 3 resurveyed and bifurcated the said survey No, 234 into two equal portions resulting in the transfer of the houses to the respondent No, 3 Mumtaz and the Petitioner, as stated above. It so happened that Mst. Habiba sister of respondent No, 3 was in occupation of small room in the house transferred to the Petitioner or and that on her failure to acknowledge the petitioner as the landlord the Rent Case No, 3/70 was filed against her in the Court of Rent Controller.
Shandadpur by the Petitioner under section 13 of the Rent Restriction Ordinance, 1959, wherein it was held that there existed relationship of landlord and tenant between the Petitioner and Mst Habiba It further seems that two persons namely Shahabuddin and Amarali had unauthorisedly occupied the portion of the house that was transferred to respondent No, 3 which filed a suit No, 55/69 in the Court of Civil Judge Shandadpur against them for their ejectment which suit was decreed on 16th July, 1969. Subsequently respondent No, 3 claiming the portion of the house, transferred to the petitioner obviously a room that was in possession of his sister Mst. Habiba made an application to the Deputy Settlement Commissioner for demarcation as he claimed the room to be included in the house that was transferred to him. The Deputy Settlement Commissioner dismissed his application. Thereafter he went to the Additional Settlement Commissioner in appeal who remanded the case to the Deputy Settlement Commissioner who allowed it with the result that the Petitioner went in revision before the Additional Settlement Commissioner who dismissed the same resulting in the present Petition.
3. Mr. M. H. Siddiqui, the learned counsel for the petitioner, has Mainly contended that after issuance of P . T. D. On 27th February, 1965 in favour of the Petitioner the house in question has seized to be evacuee property and, therefore, the Settlement Authorities had no jurisdiction to embark on its demarcation. The learned counsel has further contended that the question of transfer of the house could not be reopened unless there was a fraud or misrepresentation on the part of the Petitioner, but there was no such allegation in the present case. It is true that the admitted position is that the two houses were transferred DS-ID-51 corresponding to C S No, 234/1 situated in Tando Adam to respondent No, 3 and DS-1D-514 corresponding to C S No, D-234/2 to the Petitioner. The two houses originally arose out of a big plot No, 234 bifurcated by the settlement authorities in order to facilitate the transfer and the P.T.D.s were issued to the respondent No, 3 and the Petitioner respectively. It is also admitted that after the P.T.Ds. Were issued the respondent No, 3 filed a suit No, 55/69 in the Court of Civil Judge. Shahdadpur against the two persons abovementioned who were alleged to have unauthorisedly occupied the same for their ejectment and that respondent No, 3 in the first para of the plaint itself had stated that house No, 1D-51 corresponding to CS No, 234/1 measuring 138 Sq. Yds. Situated in Jatia Para. Tando Adam was permanently transferred to him by the Settlement Authorities and P.T.O. Dated 3rd February, 1961 and P.T.D. Dated 24th October, 1963 wefe issued in his favour. It appears that he seemed to have reconciled with the situation as far back as in the year 1969. What is further admitted that the petitioner finding that Mst. Habiba was in occupation of one small room in the house that was transferred to him filed ejectment case against her in the Court of the Rent Controller Shandadpur, wherein it was held that there existed relationship of landlord and tenant between them vide order dated 22nd May, 1972 by the learned Rent Controller. It would, therefore, appear that the respondent No, 3 appears to have been satisfied with the house that was transferred to him and the contention to the effect that subsequently he wanted only to reopen the matter in order to grab the portion of the house transferred to the Petitioner is not without force. The Settlement authorities in such a situation cannot reopen the case at this stage in order to demarcate the house after P.T.D.s were issued long back to the parties transferring their respective houses to them specially when no fraud or misrepresentation has been alleged against the petitioner in that respect. My attention has been invited in that respect to the decision in the case of Mst. Mumtaz Jehan Begum v. Settlement and Rehabilitation Commissioner and others and also in the case of Abdul Hamid v. Gulab Khan and others, wherein it has been clearly held that the Settlement Authorities could not reopen the case after issuance of PTD in respect of the property transferred in favour of the Petitioner. It has also been clearly held therein that after issuance of P.T.D. The Settlement Authorities become functus officio unless fraud or misrepresentation is alleged which admittedly is not alleged in the present case.
4. In the result, the impugned orders passed by the Settlement authorities are set aside and the petition is allowed. However, there will be n order as to cost. 1981 CLC 774 1981 SCMR 1881 2 1 2