1. MUHAMMAD YAQUB ALI, J.--A common question of law arises in these appeals which are brought by leave of the Court from the judgments and orders passed by two different Benches of the erstwhile High Court of West Pakistan, Lahore Seat, in writ jurisdiction.
2. In Civil Appeal No, 16 of 1969 house bearing No, 95/95-C situated in Multan Cantonment was permanently transferred to S. Anwar Hussain, appellant, as far back as 20th April 1962. The adjoining house bearing No, 95-D was transferred to one Abdul Majid, a local. Permanent Transfer Deed was issued in his name at about the same time. As the properties transferred to these persons were situated in the Cantonment area, they were required to get them registered with the Cantonment Board.
3. Under the relevant Rules both the transferees filed admission deeds and plans of the houses to be registered in their names. In the admission deed filed by Abdul Majid, Annexure 'D' appearing at page 44 of the Paper Book the boundaries of house 95-D transferred to him by the Settlement Authorities are given as below: North Road South House No, 95-B East Road West House No, 95-C The admission deed is witnessed by two persons and it is mentioned in it that "A copy of the site plan is attached herewith". According to the plan appearing at page 45, the house 95-D consists of two rooms and a courtyard. To the West of courtyard is House No, 95-C and to the South is House No, 95-B.
4. According to the admission deed filed by the appellant and the site plan accompanying it, house No, 95/95-C consists of five rooms, kitchen, two stores, bath room and a courtyard.
5. Sometime after the registration of the house 95-D Abdul Majid sold it to Sarfraz Ahmad, respondent, for a sum of Rs, 2,000. The description of the house given in the sale deed was different materially from the site plan filed by Abdul Majid along with the admission deed to which reference is made above. The house sold was stated to consist of five rooms and a latrine. Thereby three rooms of the adjoining house 95-C were included in the house 95-D.
6. Equipped with this sale deed, Sarfraz Ahmad applied to the Deputy Settlement Commissioner, on 14-10-1963, for demarcation of the house transferred to his vendor Abdul Majid. The application was rejected on 29-10-1963 with the remarks that no interference was possible after sP. T. Ds. had been issued to the transferees. Sarfraz Ahmad then filed an appeal before the Additional Settlement Commissioner, Multan, who accepted it by a laborious order covering 13 typed pages dated the 10th March 1965. It was held that the house transferred to Abdul Majid consisted of six rooms and a courtyard. The Additional Settlement Commissioner omitted to notice that in the sale deed (Annexure 'C') executed by Abdul Majid in favour of the appellant before him, the house 95-D was stated to consist of only four rooms while he was holding that it consists of six rooms. It is stated in the order of the Additional Settlement Commissioner which is based on spot inspection and the report by a Settlement Inspector that a portion of 95-D was in possession of the appellant, but this salient circumstance was explained away on the ground that "Abdul Majid was an old man and taking advantage of his simple-mindedness, the appellant had trespassed upon a portion of the house before P. T. 0. and P. T. D. were issued to Abdul Majid".
7. The decision of the Additional Settlement Commissioner was challenged by the appellant in a revision petition before the Settlement Commissioner contending inter alia that house No, 95-D had always consisted of two rooms and Abdul Majid himself had never made any complaint that a portion of the house transferred to him had been wrongfully occupied by the appellant, but the Settlement Commissionor found "no law-point involved in the case" to warrant interference and dismissed the revision petition by order dated 17-1-1968.
8. Thereupon the appellant filed a Writ Petition in the High Court impugning the orders of the Additional Settlement Commissioner and the Settlement Commissioner as without lawful authority among others on the ground that after P. T. Ds.' in respect of houses 95/95-C and 95-D had been issued, the Settlement authorities were not competent to modify their terms.
9. The Writ Petition was dismissed by a Division Bench in limine on the basis of an earlier decision of their Court in Mian Muhammad Din v. Sh. Muhammad Ishaque Gaba . The contention that after the issuance of a P. T. D., the Settlement authorities are left with no jurisdiction to demarcate the property was overruled in that case. On merits the learned Judges found no ground to interfere with the order of the Additional Settlement Commissioner merely because another view of facts was open.
10. In Civil Appeal No, 22 of 1970 the dispute relates to ownership of the roof over the shop transferred to the predecessor-in-interest of the respondents herein. The shop is a part of a composite building situated on G. T. Road, Lahore. Another shop and the entire first floor were transferred to the appellant and P. T. Ds.' of these respective portions issued to the parties in 1963. The first floor comprises of two rooms, a verandah and a courtyard which partly spreads over the roof of the shop transferred to the respondent.
11. The roof over the shop transferred to the predecessor-in--interest of the respondents forms part of1 the courtyard of the first floor transferred to the appellant. The Settlement Commissioner has, on a revision petition filed by the predecessor of the respondents from the Order of the Additional Settlement Commissioner declining to redetermine the ownership of the roof, held that the roof was included in the transfer of the shop in his favour and it belongs to him i. e., to the exclusion of the appellant.
12. A writ petition filed by the appellant against the decision of the Settlement authorities was dismissed by a learned Single Judge and his decision upheld by the Letters Patent Bench. The conflict of view expressed in Mian Muhammad Din v. Sh. Muhammad Ishaque Gaba and Syed All Moazam v. M. A. Effendi and others was noticed, but the learned Judges preferred to rely on the view expressed in the earlier case as the P. T. D. issued in the case before them did not indicate precisely whether the roof top of the shop was included in the transfer of the shop or the transfer of the first floor.
13. Leave to appeal was granted as the same Court had, on the basis of rule 4 of the Permanent Transfer Rules (p. 319 of the Manual) in another case Syed Ali Moazam v. M. A. Effendi and others, taken a different view. It was also urged with force that after a P. T. D., is issued title in the property passes on to the transferee and the Settlement authorities become functus officio to deal with the property.
14. There can be no dispute with the general principle that after title has passed on to the person in whose favour a P. T. D., has been issued the Settlement authorities become functus officio to deal with that property. Transfers under the Displaced Persons (Compensation and Rehabilitation) Act are, however, in the nature of a grant and it is open to the grantor to impose such terms and conditions on the ownership rights as the law may provide. The relevant provisions of law in the instant case are contained in the Permanent Transfer Rules, 1961, framed by the Central Government in exercise of powers conferred on it by section 35 of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958. Under rule 4 subject to the provisions of the Act, the Rules and the Schemes a transferee in whose favour a record of permanent transfer has been made under rule 3 shall be entitled to hold and enjoy the property and all the rights, title and interests appurtenant thereto transferred to him and to transfer or alienate the same in accordance with the normal law. Under rule 6 any person may, in writing, inform the Settlement authority concerned of the discovery of any error in an entry or about fraud or misrepresentation in obtaining permanent transfer of the property. If the Settlement authority is of the opinion that an error exist for which the transferee is not responsible he may correct it. If the information discloses serious allegations against the transferee, the Settlement authority may hold an inquiry into the allegations and a reasonable opportunity given to the parties for being heard. As a result of the inquiry the Permanent Transfer Deed may be amended, varied or cancelled. The order is open to an appeal and revision to higher Settlement authorities. Under rule 7 the Central Government, the Chief Settlement Commissioner or Settlement authority not below the rank of the Additional Settlement Commissioner may resume the whole or any part of the property at any time if for reasons to be recorded, in writing, it is satisfied that the transferee or his predecessor-in-interest had secured the transfer or obtained compensation in any form by fraud or misrepresentation.
15. Two types of cases are envisaged in the rules in which the Settlement authorities may interfere even after issuance of P. T. Ds. Firstly cases which suffer from an error of a type which can be corrected without embarking upon a formal inquiry or holding adverse proceeding cases of clerical mistakes or errors of like nature will fall within this category of cases. Second type of cases dealt with under rule 6 and rule 7 are those in which transfer or allotment of an evacuee property was obtained by means of misrepresentation or fraud. The Settlement authority may under the second part of rule 6 or rule 7 vary, modify or cancel the Permanent Transfer Deed issued to such a transferee if on holding a proper inquiry and giving the transferee an opportunity to be heard it is2 found that he has been guilty of misrepresentation and fraud. This provision of the Rules has the merit of avoiding the situation in which the Settlement authorities or the Central Government would have had to make recourse to a civil Court for cancellation of a Permanent Transfer Deed on the basis of misrepresentation and fraud.
16. As no fraud, misrepresentation or other serious allegation was alleged against the transferees before us the main provisions of rule 6 and rule 7 had no application in either appeal. The scope of interference the Settlement authorities in these appeals was, therefore, confined to the first part of rule 6, namely, discovery of any error in an entry of permanent transfer which the Settlement authorities could correct and authenticate without being called upon to hold an -adversary proceeding.
17. The facts of both the cases set out above bring out that no error of the kind contemplated in rule 6 was made to appear in Civil Appeal No, 16 of 1969. The respondent claimed before the Settlement authorities that the Permanent Transfer Deed in respect of House 95-D issued to his vendor Abdul Majid was incorrect and that instead of two rooms and a courtyard the house transferred to him consisted of six rooms and other amenities. If this was so the transfer deed issued in favour of the appellant was to be modified and four rooms included in the transfer of the house in his favour were to betaken away from him and made over to the respondent. This amounted to a major change in the trans-fers in favour of the appellant and Abdul Nlajid and could not be described as an error which the Settlement authority may correct without holding an inquiry.
18. The position in the second appeal is somewhat different. In the transfer orders passed by the Settlement authorities and the record of Permanent Transfers it is not clarified whether the roof over the shop given to the respondent was included in the transfer In his favour or that it was included in the courtyard of the first floor transferred to the appellant. The roof serves a dual purpose, namely, as roof of the shop transferred to the respondent and as courtyard of the first floor transferred to the appellant. The building belonged to one evacuee owner and it is clear that he did not make any distinction between the roof of the shop on the ground floor and its use as courtyard of the upper floor. Structurally too the roof was intended to be used for both these purposes. In the circumstances it fell to the Settlement authorities to determine whether the roof will be exclusively the property of the transferee of the shop or that it will be common property and the appellant will continue to use it as courtyard of the first floor. In the absence of this clarification, the respondent wanted to pull down the roof whereupon the appellant had to find recourse to a civil Court to restrain him from doing so.
19. Perhaps in the circumstances the proper order to pass in the case was to declare that the roof will belong to the respondent, but the appellant will have the right to use it as part of the courtyard of the first floor. Neither party would in that case be authorised to demolish the roof or build over it. It can, therefore, be said that there was an error or an omission in the P. T. Ds., issued to transferees within the scope of rule 6. The Settlement Commissioner, however, did not advert to this aspect of the case and proceeded to determine ownership of the roof as if the transfer of the shop and the first floor was being made in the first instance. This was certainly not permissible in law. These two properties already stood transferred to the parties and only a clarification was needed as to their joint interest in the roof.
20. We may now examine the two conflicting decisions given by the High Court in Ali Moazam v. M. A.
21. Effendi ani others and Mian Muhammad Din v. Muhammad Ishaque Gaba and others. In Ali Moazam v. M. A. Effendi and others n learned Single Judge held that a dispute between the transferees of the two adjoining plots of land about the ownership of the path running between the two plots was of a civil nature and a civil Court of competent jurisdiction could entertain the suit to adjudicate upon the respective rights of the parties. Section 25 of the Displaced Persons (Compensation and Rehabilitation) Act which excludes the jurisdiction of civil Court was held to extend only to those matters which the Central Government or an officer appointed under the Act was empowered to determine. In Mian Muhammad Din v. Muhammad Ishaque Gaba and others a Division Bench held that the determination of the demarcation of exact portions of building which would constitute one house within the purview of section 2 (4) of the Displaced Persons (Compensation and Rehabilitation) Act was the function of the Settlement authorities and civil Court had no jurisdiction. The jurisdiction of civil Court to determine and demarcate such portion was held to be barred under section 9 of the Civil Procedure Code.
22. We presume that in both cases P. T. Ds., have been issued to the contending parties and demarcation of the properties transferred to them were set out in the P. T. Ds. If that was so the Settlement authorities had become functus officio to redetermine and demarcate the properties except to the extent provided for in Permanent Transfer Rules. The scope of these Rules has been examined earlier. In All Moazam v. M. A. Effendi and others, the dispute was whether the path between the two plots transferred to the parties formed part of plot 'A' or plot 'B'. The Settlement authorities were clearly incompetent to determine the dispute because if the path was on inquiry found to be part of plot 'A', the transferee of plot 'B' could not lay claim to it as it was not included in the transfer in his favour. On the contrary if the path formed part of plot '13', the position would be vice versa. In this view it could not be said that there was any error in the P. T. Ds., issued to the parties which required to be corrected by the Settlement authorities within the scope of Part I of rule 6. The dispute as to whether the path was part of plot 'A' or plot 'B' was of a civil nature and under section 9 of the Code of Civil Procedure, a civil Court of competent jurisdiction alone could determine it. The rule laid down by the learned Single Judge is All Moazam v. M. A. Effendi and others is thus not open to exception.
23. In the second case the facts out of which the dispute arose are not fully disclosed in the body of the report It can, however, he gathered that both sides laid claim to a portion of the building which had been transferred to them in parts. If the description of the portions transferred to the parties was not correctly given in the P. T. Ds., issued to them and this had led to the dispute as to whether the particular portion was included in favour of one or the other party, it fell to the Settlement authority to correct the error. However, if there was no such omission and the disputed portion stood transferred to one of the parties, he had become entitled to hold and enjoy it under the normal law. An attempt to modify the P. T. D., in his favour would be in the nature of a review which is clearly barred under the Displaced Persons (Compensation and Rehabilitation) Act and the Permanent Transfer Rules. In the absence of necessary data it is not possible to pronounce on the correctness of the decision given in this case, but we have laid down the principle which should guide the Settlement authorities and the High Courts while dealing with cases of this nature. If it is a case of an error such as can be corrected without holding a formal inquiry or undertaking adverse proceedings the Settlement authorities have the jurisdiction under Part I of rule 6 to remove the error, but if the conflicting claims made by the parties require a fullfledged adjudication consequent upon which substantial variation may be made in the description of the properties given in the P. T. Ds., already issued to the transferees, then unless it is a case of misrepresentation or fraud, the jurisdiction of the Settlement authorities to deal with properties already transferred is barred under rule 4.
24. On the facts of the two cases in appeal before us we hold that the order passed by the Additional Settlement Commissioner in Civil Appeal No, 16 of 1969 modifying the boundaries of House No, 95/95-C was without jurisdiction. It is hereby quashed.
25. In Civil Appeal No, 22 of 1970 the order passed by the Settlement Commissioner on 5th December 1964, is liable to be set aside if it was intended to modify the P. T. Ds., already issued to the parties and provide that the roof in dispute wilt belong exclusively to the respondent and thereby done its use to the appellants as part of the courtyard of the first floor transferred to him. However, if the Settlement Commissioner is only reaffirming the order passed by the Deputy Settlement Commissioner transferring the shop to the respondent on 27-5-1960 the order passed by the Settlement Commissioner is with jurisdiction and not open to exception. Nevertheless it requires clarification by the Settlement authorities as to whether the ownership of the roof by the respondent is subject to the right of the appellant to use it as a courtyard. In that case neither party will be able to pull down the roof or to build upon it. In the circumstances the dispute in C. A. No, 22 of 1970 is referred back to the Settlement Commissioner for making clarification as indicated above.
26. Both the appeals are allowed accordingly and the parties left to bear their own costs. PLD 1965 Lah. 507 PLD 1965 Lah. 193
…and 9 more citing cases