' This petition calls into question the order made by the Additional Settlement Commissioner (I & D)
Central Settlement Cell, Board of Revenue, Hyderabad, dated 9-8-1975. The case had been remanded to the said Additional Settlement Commissioner by the High Court in Writ Petition No, 162 of 1969 in the following terms:- "In the result I set aside the three orders namely the order of the Additional Settlement Commissioner, dated 10-8-1962 (Annexure "D") and the two orders of the Settlement Commis - sioner, dated 5-12-1967 and 8-2-1969 (Annexures "E" and "F" respectively) holding the same to be without legal effect. In the result I direct that the Settlement Commissioner shall take up the case afresh and determine the entitlement of the parties after hearing them and while doing so he shall take particular care to see that vested rights of the parties should not be disturbed."
2. The Additional Settlement Commissioner inspected the site in the presence of the parties and after perusal of the record he ordered that the auction of plot made on 17-5-1960 was bad because the property had not been fully and properly described in the auction as it was advertised as C.S. No, A/116/34/169 and not as C.S. No, A/116/34/119 measuring 444 sq. yds. He, therefore, came to the conclusion that if it had been properly advertised it would definitely have fetched much more price than its present value Rs,25,300. He also observed that C.S. No, A/116/34/169, Hyderabad was a Muslim property and, therefore, the purchaser knowing the fact that C.S. No,169 was a Muslim property would not have come forward. By the same order he directed that since the Property No,A/116/34/119 stands amalgamated with C.S. No,A/116/314/123, Hyderabad and in physical possession of Mst. Nawab Khatoon, therefore, it should be given to her for Rs,25,300.
3. This order was challenged by both the parties before me namely Mst. Nawab Khatoon in Petition No, 918 of 1975 and by Fayyaz Ahmad and others in the present petition. The two petitions should have been heard together but it somehow happened that the Petition No, 918 of 1975 was decided by a learned Judge of this Court on 5th of April, 1983. It appears that the present petitioners were not a party to that petition. The said petition was dismissed on 5th of April, 1983 on the ground that the findings 111.0 based on appreciation of facia. Mr. S.H. Rizvi has submitted before me on behalf of the respondents that the decision in C.P. No,918 of 1975 operate as res judicata against the petitioners in the present petition. 1 do not agree. In the first instance the present petitioners were not a party to C.P. No, 918 of 1975. In tile second place the said petition was dismissed and it was held that the order of the Additional Settlement Commissioner had proceeded on the basis of facts and, therefore, the High Court had refused to interfere with the said order. Consequently the High has not decided anything in favour of Mst. Nawab Khatoon in C.P. 518 of 1975 which could be treated as res judicata against Fayyaz and others,
4. Yar. Hassan Asghar Rizvi has submitted that the decision of the Additional Settlement Commissioner has lost sight of directions made by the Hon'ble Chief Justice in C.P. No,162 of 1969 whereby a direction had been made that while deciding the case the vested rights of the parties should not be disturbed. He submitted that there were only two vested rights of the parties. One was the vested right of the present petitioners who were the successors of one Mst. Mafia who was the transferee in auction of a part of C.S. No, 169 which was auctioned on 17-5-1960 and the other vested right was of Mst. Nawab Khatoon who had been transferred the premises bearing No, C.S. 123 and, therefore, only the vested right which existed before the impugned order was passed should have been taken into consideration.
5. The learned counsel further argued that the auction which took place on 17-5-1960 had actually taken place and the acution price of Rs,24,024 had been paid on behalf of the auction-purchaser by late Ghani Muhammad who was the predecessor in interest of the present petitioneRs,
6. Mr. S.H. Rlzvi, on the other hand, submitted that the property No,123 had been amalgamated with C.S. No,119 and his client namely Mst. Nawab Khatoon was in possession of the same, therefore, property No, S.C. 119 has been correctly transferred to Mst. Nawab Khatoon for a price of Rs,25,300.
7. I find sufficient force in the contentions of Mr. Asghar Rizvi. I would reproduce a para. from the judgment of the Additional Settlement Commissioner in respect of auction:- "It is correct that Messrs Ata Muhammad and others were occupant allottees of C.S. No,A/116/34/169, Hyderabad which later on was detected by the Department to be C.S. Nos.
A/116/34/119 and A/116/34/123, Hyderabad and for the transfer of which, the said occupants had filed 'P' Forms. As such, it can safely be presumed that the property auctioned under C.S. No, A/116/ 34/169, Hyderabad was C.S. No, A/116/34/119, Hyderabad." (underlined portions are significant).
8. The above quotation clearly shows that the auction that has taken place on 17-5-1960 was of Survey No, 119 but on account of mistake of the Settlement Department it was described as land out of Survey No,
169. But otherwise the action did take place and it was mentioned as open plot measuring 4,500 sq. ft. out of C.S. No, 169 and it was auctioned for Rs,24,024 against the reserve price of Rs ,25,300 .
9. Once the learned Additional Settlement Commissioner had come to the conclusion that the property auction under C.S. No,169, Hyder abad was C.S. No, 119, Hyderabad then he should have been fair to the petitioners and should have held that their vested rights were not to be disturbed only on the mere consideration that the property could have fetched more price than its value of Rs,25,300. In fact the Additional Settlement Commissioner has proceeded on irrelevant consi - deration he was merely to see as to what actually has been auctioned on 17-5-1960 and once he was of the view that the property auctioned was C.S. No, 119 then he should have maintained the auction. Once he had clearly come to the conclusion that the property No,C.S. 169 was a Muslim property then it is obvious that mention of C.S. No, 169 by Settlement Authorities was an obvious mistake but in fact what was really meant by them was C.S. No, 119.
10. I am also of the view that a mere missed creation of a number in the auction notice by Settlement Department is not enough to come to the finding that there had been no proper description of the property. In fact the measurement of the property which was to be auctioned was given as 4,576 sq. ft. but the same had actually been found by the Additional Settlement Commissioner to be only 444 sq. yds which comes to about 4,000 sq. ft. and thus, it would be only something less than what was the actual measurement advertised. In any case such a small discrepancy in the measurement would not detract from the regularity of the auction made in favour of Mst. Mafia as far back as on 17-5-1960.
11. Another very important aspect in this case would be that the learned Additional Settlement Commissioner had come to a definite finding that the property No, 119 which he has now transferred to Mat. Nawab Khatoon and property No, 123 which had been transferred earlier to Mst.
Nawab Khatoon are two separate and independent properties and in this respect it would be proper to reproduce one para. of his judgment on page 5:- "On site, it is very clear that C.S.No, A/116/34/119 facing the main College Road of Hyderabad and C.S. No, A/116/34/123 having its entrance from the side lane are two separate and independent properties although they stood amalgamated since long because of the fact that both these properties were in occupation of Messrs Ata Muhammad and others who were closely related to each other."
Once he had come to the conclusion that the two properties were separate and independent then the learned Additional Settlement Commissioner had no business of granting to the respondent Mst. Nawab Khatoon what she did not have earlier. In fact this means that Mst. Nawab Khatoon had been given another property to which she was previously not entitled and which had in fact been transferred by auction to the present petitioners but with a wrong number of C.S. No,
169. To make the matter more clear that a new property has been transferred to Mst. Nawab Khatoon by the impugned judgment I would reproduce another para from page 5 of the said judgment:- "Thus the said property bearing C.S. No, A/116/34/119, Hyderabad now becomes available for disposal .according to law which provides unrestricted public auction in such cases."
' The above para. made it quite clear that Mst. Nawab Khatoon has been given property which has never been given to her. That property in fact had been taken away from the petitioners as observed by me earlier.
12. In this respect one more thing would need attention. Mr. S.H. Rizvi has stated that the Property Nos. 123 and 119 had been amalgamated with each other and, therefore, it could not be separated. I fail to see the strength of this argument. What has happened is that the respondents have secured the possession of independent Property No, C.S. 119 from its previous occupant namely Ata Muhammad by a decree of a civil Court and on the basis of that decree the respondent Mst.
Nawab Khatoon is now in possession of C.S. No,
119. But she is not transferee of that property from the Settlement Department and once C.S. Nos. 119 and 123 have been found by the Additional Settlement Commissioner, onsite inspection, to be two separate and independent properties then merely because one person is in occupation of two separate and independent properties then it cannot be said that the two properties are amalgamated with each other in the sense that they cannot be treated as separate properties. The Additional Settlement Commissioner as well as respondents appear to be having some misconception in respect of such amalgamation. I am clearly of the view that two separate and independent properties cannot be regarded as amalgamated pro perties. The approach of the Additional Settlement Commissioner was patently wrong and completely in disregard of the directions of the High Court in C.P. No, 162 of 1969.
13. It is surprising that the Additional Settlement Commissioner has transferred C.S. No, 119 to Mst.
Nawab Khatoon on 9-8-1975 for Rs,25,300 only in spite of his own observation that if C.S. No, 119 had been advertised for auction in 1960 than it would have fetched more than Rs,25,000. If the same property was worth Rs,25,000 in 1975 then obviously it had fetched a very fair price of Rs,24,030 in 1960, when it was in occupation of Ata Muhammad and was not an open plot. The learned Additional Settlement Commissioner has by ordering the transfer of the said property for Rs,25,000 in 1975 has clearly demolished his own finding that the property could have fetched more money in 1960. Everyone knows that the prices of 1960 and 1975 are not the same as the value of rupees has depreciated a great deal. Therefore, the main consideration in the mind of the Additional Settlement Commissioner for setting aside the auction of 1960 that property had fetched lesser value has disappeared by the transfer of C.S. No, 119 in favour of Mst. Nawab Khatoon and it has, on the other hand pre judicially affected the vested rights of the petitioners whose predecessor had paid almost the same price in 1960.
14. In view of the above discussion I am clearly of the view that the order of the Additional Settlement Commissioner, dated 9-8-1975 to the extent of the cancellation of auction of 17-5-1960 from the name of predecessor of petitioners and also to the extent of transfer of C.S. No, 119 in favour of Mst. Nawab Khatoon is patently wrong and has infringed the vested rights of the petitioners and the Additional Settlement Commissioner should have maintained the auction made on 17-5-1960 and should have confined himself merely to correct the number of the auctioned property from C.S. No, 169 to C.S. No,
119. This petition is, therefore, allowed, and a direction is issued to respondent No,1 to cancel the transfer of C.S. No,A/116/34/119 made in favour of Mst. Nawab Khatoon and maintain the auction made on 17-5-1960 in favour of Mst. Mafia and subsequent transfer in favour of Ghani Muhammad the predecessor of present petitioneRs, But the number of the plot as auctioned on 17-5-1960 is directed to be corrected as C.S. No, 116/34/119 and it's measurement is to be shown as 444 sq. yds. The amount deposited by Mst. Nawab Khatoon be returned to her. Mst. Nawab Khatoon will continue to be the transferee of C.S..No,A/116/ 34/123 which is separate from C.S. No,119.
' There will be no order as to costs.