1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore in Writ Petition No. 685/R of 1964 dated the 24th June 1964. By this judgment, a Division Bench of the said High Court dismissed-the writ petition.
2. Briefly, the facts leading to this appeal are that the property in dispute is a plot of land bearing No. S. W. 111. 16. 5.4., situated in Mongia Street which the appellant claims to be a part of property No. S. W.
98. R. 21 which is a double-storeyed residential-cum-commercial building with three shops on the ground floor. This property was transferred to the appellant on the 26th December 1959. One Khuda Bakhsh was also a claimant of the shop. He filed an appeal against the said order which was withdrawn and the appeal was dismissed on the 26th March 1960. Thereafter the appellant applied for demarcation and claimed that he was entitled to the adjacent plot as it was a part of the property to the extent of three times the plinth area. The learned Additional Settlement Commissioner, by order dated the 20th February 1961, directed that since it was a case of demarcation of the property already transferred and not transfer of any additional property or plot, the D. S. C. Concerned Circle 11, should take appropriate action. On the 15th March 1961, the matter was taken up by the-D. S. C. On the report of the Assistant Settlement Commissioner of the said date, the D. S. C. Approved on the 9th June 1961 that the plot in dispute was a part of the house transferred to the appellant and as it was less than three times the plinth area it may be deemed to be a part of the property transferred to him.
3. Sardar Muhammad respondent No. 2, who has also applied for the transfer of the plot in dispute, challenged this order in R. P. No. 3864 before the Settlement and Rehabilitation Commissioner, Lahore Division. The learned Officer, by order dated the 25th May 1963, set aside the order of transfer of the plot and transferred it to respondent No. 2. The appellant challenged this order in the above writ petition which was dismissed. The appellant has challenged the order of the High Court in this appeal.
4. Special leave was granted in this case to consider the question whether the order passed by the Settlement Commissioner was ah, proper and valid order and whether it was passed in the presence of the record of the subordinate authority.
5. A preliminary objection has been raised that the appeal is barred by 35 days. Mr. Jamil Hussain Rizvi, learned counsel for the appellant has contended that the appeal is within time. According to the learned counsel, the judgment of the High Court was delivered on the 24th June 1964. Copy was applied for on the 20th July 1964. Copy was ready on the 22nd August 1964. Copying Department sent notice for taking delivery of the copy on the 29th September 1964. The copy was received on the 17th October 1964.And the petition was filed on the 31st October 1964. According to the learned counsel, time should be reckoned from the date of the notice of the copying department i.e., from the 29th September 1964. In support of his contention he has relied on a decision of the Lahore High Court in the case of Gul Muhammad v. Allah Ditta (PLD 1960 Lah. 443). In that case, the following Rule of .The Lahore High Court was relied upon for determining the question whether the appeal was within time. This Rule was amended by a correction pamphlet No. 39, dated the 3rd June 1959 and reads as under :- "The date communicated to the applicant for taking delivery of the copy or the date on which it is ready for delivery, whichever is later, shall be deemed, for the purpose of such calculation, to be the day on which it is given."
6. A Division Bench of the West Pakistan High Court interpreted this Rule and held that it is implied in para. 2(ii)(d), Chapter XIV--D, Vol. I, High Court Rules and Orders that the copying agency will inform the applicant to take delivery of the copy on certain date. The learned counsel for the respondent was unable to show that this view is incorrect. In view of this the date of the notice of the copying department will be taken into consideration for commuting the period of limitation. In this way, the appellant should have filed the appeal on the 23rd August 1964. He took 71 days for obtaining the copy of the judgment of the High Court. If this period is added then the appeal filed by him is within time. Even if it is not within time there is sufficient ground to condone the delay. The delay is condoned. The objection raised on behalf of the respondent No. 2 is, therefore, overruled.
7. Coming now to the merits of the case, it will be noticed that respondent No. 2 filed his appeal on the assumption that there was an order of the Additional Settlement Commissioner passed in favour of the appellant. No copy of the said order had been filed along with the appeal ; even its date was not mentioned. The record of the case was also not before the appellate authority. Mr. Jamil Hussain Rizvi, learned counsel for the appellant has pointed out that the order of the transfer of the plot in dispute was passed by the Deputy Settlement Commissioner and no such order was passed by the Additional Settlement Commissioner. In these circumstances it is quite clear that the Settlement and Rehabilitation Commissioner has passed the impugned order on wrong assumption of the facts.
8. It will be further noticed that the Settlement and Rehabilitation Commissioner has also mentioned that on examination of the file of the plot concerned he found that it contained a notice of transfer of property in dispute to respondent Sardar Muhammad and he saw no reason why this notice of transfer should not be honoured by the department. The file of the case is available before us. It shows that no order of the transfer of the plot in dispute was passed by any authority in favour of respondent Sardar Muhammad. He only applied on N. C. H. Form which was consigned to the record room on the 22nd January 1960. We have also examined the notice prepared by the department. This shows that it was not signed by anybody. It is thus quite clear that the learned Settlement and Rehabilitation Commissioner was wrong in assuming that any transfer order has been passed in favour of respondent Sardar Muhammad. In fact there is no, doubt in our mind that the learned Settlement and Rehabilitation Commissioner has passed the order dated the 15th May 1963 on wrong assumption of facts. It is, therefore, liable to be set aside for this reason. Accordingly, the said order is set aside.
9. It is still to be decided whether the plot in dispute is a part and parcel of the property transferred to the appellant or is a separate property and respondent No. 2 is entitled to its transfer. For this purpose the case is remanded to the Settlement and Rehabilitation Commissioner, Lahore Division, who is directed to examine the facts of the case and decide the dispute between the parties. It may be mentioned that if it is found that the plot in dispute is an independent plot it will not be transferred to the appellant under the guise of demarcation proceedings. The claim of the respondent will also have to be examined in respect of this plot.
10. In the result, subject to the above remarks the appeal is allowed. Costs of this appeal will be the costs in the proceedings before the Settlement and Rehabilitation Commissioner.