MIAN BURHANUDDIN KHAN, J. -A residential building consisting of two separate residential units and certain shops bearing Nos. B-100/1800 and B-100/1801, situate in Bantawa Street, Hyderabad, is property in dispute, The later part of the building was in possession of respondent No. 2 Bachal Shah, a local while the other portion was occupied by one A.I Muhammad Shah, also a local. Both of them filed L. H. Form for the transfer of the portion in their respective possession but the form were rejected for the reason that the property valued more than Rs. 10,000. How--ever, three shops, on the ground floor were transferred to the person in their respective possession. The residential portion including the garrage on the ground floor was included in the earmarking and was drawn in favour of Mirza Maqbool Ahmad, appellant, a claimant displaced person, on the evaluation price assessed at Rs. 24,000 of which it is stated that he made payment of Rs. 16,300 and the balance was payable in instalments. A P. T. O. Was issued to Mirza Maqbool Ahmad appellant on 14-2-1960.
The appellant on the basis of the P. T. O. Issued to him, served notices under section 30 of Act XXVIII of 1958 on both respondents Bachal Shah and A.I Muhammad Shah. The latter filed a revision petition before the Settlement Commissioner in respect of the portion in-his possession which' was accepted on 19-5-1962 and the portion in question was trans--feered in his favour. Writ Petition No. 701 of 1962, against the aforesaid order, was filed by the appellant but the same was dismissed in limine on 11-2-1963. The matter was not pursued further and the present dis--pute is confined to the portion in occupation of respondent No. 2 namely No. B-100/1801.
2. Respondent No. 2 had moved a miscellaneous application before the Deputy Settlement Commissioner challenging the transfer of the portion in his possession, to the appellant and claimed that t market value of the name was less than Rs: 10,000 and, therefore, the same was transferable to him against his L.H. From. The D. S. C. Per order dated 18-11-1966 found that the alleged from filed by respondent No. 2 Bachal Shah had already been rejected on the ground that the value of the portion in dis--pute was above Rs. l0,000, and, he being a local, was not eligible for its transfer and the matter could not be re-opened on miscellaneous applica--petition. Bachal Shah then filed an appeal before the Additional Settlement Commissioner who, per order dated 11- 10-1967 found that the market value of the portion in dispute was less than Rs. 10,000 and that respondent No. 2 Bachal Shah being in its continuous occupation as its allottee, was entitled to its transfer. Learned Additional Settlement Commissioner was also influenced by the fact that the other portion of the property trans, feered to A.I Muhammad Shah, who was also a local and found that the market value of that portion was less than Rs. 10,000 and considered the L.H. Form, filed by respondent No. 2 Bachal Shah, was still pending and the same ought to be disposed of in accordance with law. The learned High Court Judge contained these findings in Writ Petition No. 139 of 1960.
3. Appellant sought leave to appeal against the judgment of the High Court and leave was granted by this Court, vide order dated 2-6-1975 to consider whether the view taken by the Additional Settlement Com--missioner and the learned High Court Judge that the L. H. Form submitted by the respondent No. 2 remained undisposed of because of the subsequent discovery regarding the market value of the disputed portion to be less than Rs. 10,000 notwithstanding the drawal of lot in favour of the appellant in earmarking followed by issuance of the P. T. O. In his favour, was correct finding ?
4. Learned counsel for the appellant contended that Bachal Shah respondent No. 2's form was rejected as far back as 21-9-1959. This re--jection of the form was re-affirmed by the Additional Settlement Commis--sioner by his order 19-8-1.960 and this finding was not challenged by Bachal Shah in any proceedings until the house was transferred in favour of the appellant under the Earmarking Scheme. The Settlement authorities, therefore, on a miscellaneous application moved in 1964, could not transfer the disputed house to respondent No. 2. Hence the order transferring the respondent No. 2 by the Settlement Authority and approved by the learned High Court Judge is not based on true and correct appreciation of the facts ; - that in ~ the earlier writ petition filed by the appellant which was rejected, it was held that the appellant was successful in the drawing of lots in respect of portion No. B/1801/100 and the house in possession of A.I Muhammad Shah was a different house ; thus the finding that the initial [order of the drawal of lots was void because in these proceedings the lotteries were drawn in respect of both the houses and tantamount to re-- opening the matter decided in the earlier round of litigation. It was further contended that respondent No. 2 having attorned to the appellant as landlord, was not estopped to challenge that the order was nullity and the res--pondent was entitled to the transfer of the disputed portion. The powers of the Additional Settlement Commissioner were also challenged on two grounds firstly that the proceedings initiated before him were obviously time-barred and secondly, he did not possess the revisional jurisdiction. Both these important aspects were not adverted to by the learned Additional Settlement Commissioner and the learned High, Court Judge also made no reference to these vital points.
5. We have considered the points raised by the learned counsel for the appellant and have also heard the learned counsel for the other side. It is true that the Additional Settlement Commissioner basing the evalu--ation of the suit property on the rent fixed by the Custodian does not find an Support from .The law applicable to the case. Under, the law the price to be determined either on the basis of assessm ent made by the Excise Taxation Department or the Local Authority. On the basis of this assess--ment, the transfer price of the house was admittedly, more than Rs. 10,000.
Finding by the Additional Settlement Commissioner that on, discovery of fresh material the proceedings could be initiated, is also misconceived. In the earlier proceedings the house was transferred to' the appellant and that transfer had attained finality. Proceedings, therefore, could not be re-opened now on the ground that on account of discovery of new facts the transfer price of the house had fallen below-Rs. 10,000. Under. Section 22 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 the proceedings have attained finality and the matter could not be re-opened.
6. After four .Years of the issuance of P. T. O. To appellant, the res--pondent No. 2 Bachal Shah moved a miscellaneous application against the dismissal of his. Ir. H. Form on 22-9-1959. Perusal of the application (Annexure) would show that the applicant -had the knowledge that his L. H. Form was rejected on the ground that the evaluation of the promises No. B--1-00/1801, exceeded Rs.
10,000. While going through the LH form we find that there is an order to the effect as stated in his miscellaneous apple--cation. It is mentioned in order of the D. S. C., Hyderabad dated 18-11-1966 as follows "S. Bachal Shah, on possession basis applied for B/1801 through L. H. Form which was rejected on the ground that the value of the pro--perty exceeds Rs. 10,000. Subsequently the number B/1801 after being declared as B category house by the then Additional Settlement Com--missioner was included in the earmarking list and was drawn , in favour of Mirza Maqbool Ahmad, in the sum of Rs.
24,000 on the basis of reduced C. A. R. Of Rs. 600. The applicant has not filed any appeal or revision against the order dated 21-9-1959 hereby his LH form was rejected. Moreover, in view of the value of the property which is much more than Rs. 10,000 the applicant is not entitled to it, and his L. H. Form was rightly rejected."
"With regard to C. S. No. B/1801 this entire. Number I n the D. V. Is shown to be in occupation of S. Bachal Shah with an assessm ent of Rs. 1,200 which after blanket reduction comes to Rs. 600, Rs.
24,600. As such the applicant S. Bachal Shah is not entitled for its transfer being a local and particularly .When it is seen that this house had been transferred to Mirza Maqbool Ahmad as B category house."
7. The upshot of the above discussion is that as accept the appeal, set aside the impugned order dated 11-10-1968 of the Additional Settle--ment Commissioner as well as that passed by the Sind and Baluchistan High Court on 9-9-1974 whereby Writ Petition No. 139/ 68 filed by the appellant was dismissed, and restore the order dated 18-11-1966 of Deputy Settle--ment Commissioner. No order as to costs.