ZAFFAR HUSSAIN MIRZA,. J.--This judgment shall dispose of these two appeals by special leave as they are cross-appeals arising out of the common judgment of a learned Single Judge of the Peshawar High Court, Peshawar, dated-26th March, 1980.
2. The question of law that requires determination turns on the inter--pretation of para. 4 of the Press-note, dated 23-10-1959. Leave was granted to examine the contention that the general reduction in the price of the property had, in fact been ordered before the agreement of association was entered into between the parties on 5-1-1960 and consequently Aziz Ahmad appellant (in Civil Appeal No. 28-P of 1980) and his co-sharers in the verified claim, under the law, were obliged to utilize their entire compensation book and could associate Mst. Sardar Begum appellant (in Civil Appeal No. 28-P of 1980) only with respect to the balance, so that the original 30 % share of Aziz Ahmad and others was enhanced on account of the reduction of price o1 the transferred property and the share of Mst. Sardar Begum was proportionately reduced. Leave was also granted in the connected Civil Appeal No. 28-P of 1980 to consider the question whether the Settlement Authorities were not competent to demarcate the property in accordance with the true share of the parties therein.
3. The controversy in this case relates to a house situated in Mohallah Andes Shehr, Peshawar City, which was originally an evacuee property in occupation of one Doctor Fateh Din a claimant. The later having died before the verification of his claim, the rights devolved upon his heirs con--sisting of Aziz Ahmad, the eldest son, a widow, three sons and a daughter. On the basis of the right as successors of the deceased occupant, Appendix-X was, however, issued in favour of Aziz Ahmad who is said to have represented himself and other heirs, whereby transfer was to be effected on payment of Rs. 1,05,600. Aziz Ahmad and his co-sharers, not being in a position to pay the entire transfer price entered into an agreement of association with Mst. Sardar Begum on 5-1-1960, stipulating that Aziz Ahmad and his party would utilise their compensation book for Rs. 30,000, and the balance of the transfer price amounting to Rs. 69,720, shall be paid by Mst. Sardar The respective shares in the property as agreed by the parties were 30%o and 70%. P. T. Os. Were issued to both the parties according to the above-mentioned shares.
4. In the events that happened, the transfer price was reduced from Rs. 1,05,600, to Rs. 72,000, by the Settlement Authorities. The beginning of the present controversy stems from this juncture of events because it appears that Aziz Ahmad was somehow able to pay the entire reduced price and wished to acquire the property entirely in his own favour and desired to back out from the agreement of association which already stood accepted by the Settlement Authorities.
Accordingly, be applied for the cancellation of the . Agreement of association and requested that the entire transfer price of Rs. 72,000, be accepted from him and the whole property be transferred to him. His request was allowed by the Additional Settlement Commissioner who cancelled the agreement of associate, vide his order, dated 18-5-1962. After some further litigation before the Settlement Authorities, the matter was taken to the Peshawar High Court in the Constitutional jurisdiction and it was ordered by the High Court that the shares of the parties be determined by the Settlement Authorities in the first instance, as the agreement of association cannot be unilaterally altered or cancelled. In view of this direction a fresh round of litigation commenced at the instance of Mst. Sardar Begum who applied for partition of the property according to the shares as already agreed in the terms of agreement of association on the ,ratio of 30 and 70 %. Aziz Ahmad also applied for re-fixation of the shares, keeping in view the reduction in the transfer price of the property. Before the Deputy Settlement Commissioner. Mst. Sardar Begum-succeeded in obtaining a site plan denoting the partition of her 70 % shares. An appeal preferred against the order by Aziz Ahmad was dismissed by the Additional Settlement Commissioner. He also failed in his revision application before the Settle--ment Commissioner, Peshawar, which was dismissed vide order, dated 5-2-1974.
5. Aziz Ahmad then filed Writ Petition No. 257 of 1974 before the Peshawar High Court, Peshawar, seeking a declaration to the effect that the partition effected by the Deputy Settlement Commissioner, of the disputed property was a nullity in law and prayed that the Additional Settlement Com--missioner, Peshawar, be directed to issue P. T. D. In respect of the property by fixing his share at 62 % and Mst. Sardar Begum's share at 38 per cent. His case before the High Court was that in view of para. 3 of the Press-Note, dated 13-2-1960 issued by the Chief Settlement Commissioner, he had to utilize the entire amount o deferred payment invariably in his compensation book in the sum of Rs. 30,300, and, therefore, only the balance Rs. 41,700, from the reduced price to be paid by Mst. Sardar Begum. In this manner the parties were entitled to the shares already mentioned. The High Court, however, replied the argument of Aziz Ahmad and held that the ratio agreed upon between the parties and incorporated in the stipulations contained in the deed of association could not be changed by the subsequent reduction of the price on the ground that the essence of the contract between the parties was the fixation of the ratio of shares for purpose of association. The conten--petition of Aziz Ahmad that the Deputy Settlement Commissioner was not com--petent to partition the property was, however, accepted by the High Court, on the ground that there exists no provision in the Displaced Persons (Com--pensation and Rehabilitation) Act, 1958, authorising the Settlement Authori--ties to effect the demarcation of the property which is jointly obtained by the transferee and his associate, because on the transfer of the property, the Settlement Authorities become functus officio for purposes of dealing with the property. In this view of the matter, the order of the Settlement Authorities with regard to the allocation of the shares in the ratio of 30 % / 70 % was upheld but the petition of Aziz Ahmad was partially accepted and the part of the order demarcating the property was declared to be null and void, and without lawful authority. It was observed that the parties should either by agreement between themselves or through competent forum and seek the parti--petition of the property. The petition was disposed of in these terms by the impugned judgment dated 29-3-1980.
6. We have heard the learned counsel appearing for the parties in support of their respective appeals. It may at the very outset be pointed out that contrary to the contention of Aziz Ahmad noticed in the leave granting order, in fact the general reduction in the price of the properties located, inter alia, in Peshawar City was ordered by a Press-Note issued by the Settle--ment Commissioner (Policy on 19-9-1960 (vide copy at page 6 of Part-II of the printed record in Civil Appeal No. 28-P of 1980). Since the agreement of association was executed between the parties on 5-1-1960, clearly the reduc--petition of the price came much afterwards, when vested right to the transfer 'of title in the property to the extent of 7 % had already accrued, under the terms of the agreement in favour of Me. Sardar Begum in whose favour a P. T. O. Was also issued on the basis of the agreement of association.
7. Para. 33 of the Settlement Scheme No. I as substituted by notifica--petition, dated 13-10-1959 provided as under :- ---433. Payment by claimants, non-claimant displaced persons and locals in association with claimants.-A proposed transferee may, for the purpose of making payment of the transfer price, associate any other claimant. In such a case the property shall be transferred to all the associates in such shares as are agreed upon in writing between them."
(The underlining* is mine).
The unequivocal meaning of the provision is that the properties transferred to a transferee under the Scheme by association with any other claimant were transferable in terms of the agreement between the parties and were not reliable to the share of the transfer price contributed by the proposed transferee or the associate claimant. This is further clear from a subsequent Press-Note, dated 13-2-1960, para. 5 of which reads as follows :--.
"(5) The proportion in which the property will be transferred to the transferee and the associating claimant will be decided by mutual agreement between them irrespective of the amount contributed by each towards payment of the transfer price. In the absence of an agreement between the parties to the contrary the property will be divided between them in proportion to the amount contributed by each. No objection will be raised by the Settlement. Authorities if the parties agree to take properties jointly without specifying their shares."
That the agreement of association once filed before the Settlement Authorities attains finality is also clear from the Memorandum No. 4241-PI-Reh-60, dated 7-3-1960, issued by the Chief Settlement Commissioner in clarification of the Press-Note referred to above, which reads as under :-- "Withdrawal of agreement of association,-to the press-note issued under this office No. 2705-PI- Reh-60, dated 13th February, 1960, it was laid down that the persons who want to associate with claimants for payment of the transfer price of properties, should file an Agreement of Association on Rs. 4, stamp paper. It has been decided that normally an agreement once filed by the persons concerned should be treated as final and they should not be allowed to withdraw or modify it subsequently. In exceptional and really deserving cases an Agreement of Association may be allowed to be withdrawn or modified or replaced by a new agreement with the approval of the Additional Settlement Commissioner concerned."
8. Reading the aforesaid provisions and Press-Notes etc., we are satisfied that Aziz Ahmad was not entitled to withdraw the agreement of association unilaterally. The contention now pressed before us on behalf of Aziz Ahmad is that the Press-Note, dated 23-10-1959, mandatory required that the entire amount available in the compensation book of the claimant had to be utilized and, therefore, qua the reduced price of Rs. 72,000, the Settlement Authorities was bound to adjust the entire amount available in his compensation book, i.e., Rs. 30,300, and if it had been done so, then his share would increase to 62% and the balance amount would then be adjusted from the compensation .Book of Mst. Sardar Begum who would be entitled to. a share to the extent of 38 %.
Para. 4 of the Press-Note relied upon states as under :- "(4) In all cases where claimants are associated with others they will be given a share in the property in proportion to the amount of deferred payment utilised for adjustment against transfer price. The entire amount available in the. Compensation Book of the claimant so associated will be utilised. Part adjustment of the amount of deferred payment in different properties will not be allowed unless in any case the amount of deferred payment available exceeds the transfer price of the property."
9. The bare reading of this paragraph makes it clear that the condition that the entire amount available in the compensation book of the claimant, should be utilized refers to the claimant associated and not the proposed transferee. In the present case, the proposed transferee was Aziz Ahmad and the claimant associated was Mst. Sardar Begum. Consequently, the argu--ment is without substance. In any case para. 5 of the Press-Note, dated 13-2-1960 reproduced above, which was issued subsequent to the Press-Note relied upon, makes it abundantly clear that the respective shares of the transferee and the associating claimant will be decided by mutual agreement between them irrespective of the amount contributed by each towards payment of the transfer price. The extent to which sanctity was attached to the agreement of association qua the share of the parties is, not, therefore, open to question.
10. Be that as it may, the question that the agreement of association is final and binding stands concluded by the judgment in the previous Writ Petition No. 248 of 1962 filed by Mst. Sardar Begum against Aziz Ahmad and others in the High Court of West Pakistan, Peshawar Bench Peshawar, dated 30-1C-1967 and Aziz Ahmad is not; therefore, entitled to agitate this question in the present proceedings. In that case he bad canvassed the legality of the order passed by the Additional Settlement Commissioner cancelling the agreement of association between the parties and in this connection the learned Judges, while referring to Memorandum No. 4241-PI-Reh-60, dated 7-3- 1960 observed :.- "The bare reading of this Memorandum would show that in exceptional and really deserving cases, the parties concerned with the approval of the Additional Settlement Commissioner, were allowed to withdraw, modify or replace the Agreement Association previously filed by them. This amply, clear from the direction in the Memorandum itself that' normally an agreement filed by the person concerned should be treated as final and they, should not be allowed to withdraw or nodify it subsequently. There is nothing in this Memorandum which entitled a party to an Agreement of Association to unilaterally withdraw from it, with the approval of the Additional Settlement Commissioner, nor is any power given to the Additional Settlement Commissioner to cancel an agreement of Association at the instance of only one party."
11. The next question that remains to be considered is whether the order of the Deputy Settlement Commissioner, dated 6-61972, partitioning the property and the orders upholding the same passed by higher Settlement Authorities, were validly passed. The High Court held the orders to have been passed without lawful authority on the following reasoning :- "9. Lastly, the learned counsel for the petitioner has contended that the order of the Deputy Settlement Commissioner demarcating the house is without lawful authority and has got to be set aside. There is no provision in the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) authorizing the Settlement Authorities to effect the demarcation of the property which is jointly obtained by the transferee and his associates. In fact, after accepting the association deed and transferring the property jointly in the ratio of 30 : 70, the Settlement Authorities became functus officio and it was then for the new owners themselves to demarcate the property privately or to get it partitioned through a Court of competent jurisdiction. The learned counsel appearing for respondent No. 1 has not been able to show me any law or rule conferring any power of demarcation on the Settlement Authorities in such cases."
12. Major Muhammad Ishaque, learned counsel appearing for Mst. Sardar Begum (appellant in Civil Appeal No. 27-P of 1980) sought to support the orders on the argument that the Settlement Authorities possess the power to partition the respective shares of joint transferees of a property transferred under the Settlement Scheme until the issue of a P. T. D. Reliance was placed for this argument on Anwar Hussain v. Sarfraz Ahmad (PLD 1971 SC 669), Mst. Fahmida Kausar v. Mst.
Farhat (1969 SCMR 446) and Muhammad Din v. Muhammad Ishaque-Gaba (PLD 1965 Lah. 507).
Having regard to the facts of these cases, none of the cases support the contention of the learned counsel. In all the three cases the dispute was between two transferees of separate properties in regard to a portion of the building. It was, therefore, held that the Settlement Authori--ties were competent to determine the question and interpret the order of transfer in each case by demarcation of portions of the building included in the respective transfer order. However, the facts of the present case are entirely different inasmuch as, here the question is of partitioning the pro-- perty which was jointly transferred in specified shares to the parties. There was no question of demarcating the respective properties separately trans--feered to each party. It is well recognised that a co-sharer has a share in each part and parcel of the joint property, which can be separated by means of proper proceedings for partition. Learned counsel was, unable to refer us to any authority to show that in such a case the Settlement Officers possess the power to partition such a property. The parties had agreed to obtain the transfer of the house in question in the share of 30 % and 70 % by means of the agreement of association .And that having been done, the. Settlement Authorities were not required to do more.
13. On behalf of Aziz Ahmad and others (appellant in Civil Appeal No. 28-P of 1980), we were referred to the case of Muhammad Hussain v. Additional District Judge (PLD 1972 Kar. 632) which is directly on the point at issue. In this case a question of the power of the Settlement Officers to effect partition of the properties was raised and it was observed :- "In support of his contention he relied on Abdul Ghani v. Settlement and Rehabilitation Commissioner, Hyderabad Division (1971 Law Notes 222), and the order of the Supreme Court in Civil Appeal No. K-22/66 refusing to grant leave in the same case against the judgment of the High Court. The dictum laid down in these two cases is that sec--petition 8(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 does not empower the Settlement Authority to partition the property and this power is exclusively possessed by Civil Courts which, in the absence of express provision, does not empower the Settlement Authority to exercise it."
We, therefore, agree with the view taken by the learned Single Judge in accept--ing the contention of Aziz Ahmad and others that the Settlement Authorities had no jurisdiction to partition the property.
14. There is also no force in the contention raised on behalf of Mst. D Sardar Begum that Aziz Ahmad cannot challenge the jurisdiction of the Deputy Settlement Commissioner in respect of the partition order, since no such objection was raised before the learned Officer himself. In the firs place, it was Mst. Sardar Begum who made the application for partition and Aziz Ahmad was issued notice, in response whereof he appeared as the respective shares of parties in view of the reduction in price.
Secondly, the Settlement Authorities were directed by the High Court in Writ Petition No. 248 of 1962 to determine the question of the respective shares of the parties in the first instance. Therefore, this is not a case of total lack o jurisdiction but of the excess of jurisdiction in the proceedings validly taken cognizance of by the Deputy Settlement Commissioner and as such in the facts of this case, we cannot apply the rule that the jurisdiction of the Special Tribunal should have been first expressly challenged.
15. It was, however, contended on behalf of Mst. Sardar Begum that the part of the impugned order of the High Court relating to the declaration of the portion of the orders of Settlement Authorities relating to partition as null and void, was passed without jurisdiction as the learned Judge had no power to grant relief in writ jurisdiction suo motu. There is no substance in this contention, in that it proceeds on an incorrect factual basis. As pointed out by the learned Judge in the impugned judgment, Aziz Ahmad had sought specific relief in his petition before the High Court against this part of the order also.