' Petitioner Noor Muhammad, represented by Mr. Muhammad Ali Shaikh, Advocate claims to be the legal heir of Duni Khan. Respondents Nos. 2 to 6 are the legal heirs of Mumtaz Baig and they are represented by Mr. Akhtar Mahmud, Advocate. No one has appeared on behalf of respondent No, 1, Settlement Commissioner, Sind, whose order dated 25th October, 1981 is impugned by the petitioner in this Constitutional Petition. There was an earlier round of litigation between the parties and the matter went up to the stage of Letters Patent Appeal. Writ Petition No, 774 of 1965 had been filed by Mumtaz Baig, prodecessor-ininterest of respondents Nos. 2 to 6 and it was disposed off by judgment, dated 16th June, 1971 of Mr. Justice Noor-ul-Arfin. By the said judgment the transfer of the disputed house in favour of Mumtaz Baig was upheld and the following orders were set aside :-
(a) Order, dated 26th February, 1962 of the Deputy Settlement Commissioner, Hyderabad.
(b) Order, dated 15th January, 1964 of the Deputy Settlement Commissioner (Judicial), Hyderabad.
(c) Order, dated 9th October, 1964 of the Additional Settlement Commissioner and Rehabilitation Commissioner, Hyderabad.
(d) Order, dated 19th May, 1965 of the District Judge and Settlement Commissioner, Hyderabad.
' Being aggrieved by the aforesaid judgment, dated 16th June, 1971 of Mr. Justice Noor-ul-Arfin, petitioner Noor Muhammad filed L. P. A. No, 168/71, which was disposed off by the judgment, dated 6th October, 1980. The operative part of the judgment of L. P. A. Bench reads as follows :- "For the aforesaid reasons, while maintaining the order of the learned Single Judge to the extent of his finding that the cancellation of transfer of the house in dispute to the respondent without notice to him was without jurisdiction and his quashing all the orders passed by the Settlement Authorities subsequent to the order dated 31st October, 1961 passed by the Deputy Settlement Commissioner (Judicial), we modify the impugned judgment and that we remand the case to the Authorised Officer of the Settlement Department to give a fresh decision according to law as to the entitlement of the parties to the house in dispute after giving finding on the two questions, namely, whether (1) the predecessor-in-interest of the appellant was entitled to the transfer of the house in dispute on the basis of C. H. Form filed by him as found by the Deputy Settlement Commissioner (Judicial) in his order, dated 31st October, 1961 and (ii) the predecessor-in-interest of the appellant had filed Form 'E' for the transfer of house No, D/520 at Matli, District Hyderabad, and if so, its effect on his entitlement to the house in dispute, after hearing the parties and giving them opportunity of leading any evidence that they might wish to do so. Until the case is decided on remand by the Authorised Officer, the parties shall maintain status quo with regard to the transfer in their favour."
' After remand of the case by the L. P. A. Bench, the parties were heard by the Settlement Commissioner, who passed the impugned order, dated 25th October, 1981. It was found by the Settlement Commissioner that the C. H. Forms of Dhuni Khan, predecessor-in-interest of the petitioner Noor Muhammad, were not genuine and that the said C. H. Forms of Dhuni Khan were otherwise of no legal value as Dhuni Khan bad himself foregone his rights to the transfer of the disputed house by having filed 'E' Form in respect of other properties. The Settlement Commissioner had held that Dhuni Kban was not entitled to the transfer of the disputed house, which was rightly disposed of through earmarking in favour of Mumtaz Baig, predecessor-in-interest of respondents Nos. 2 to 6. Transfer in favour of Mumtaz Baig was upheld by the Settlement Commissioner.
2. The case of the petitioner is that Dhuni Khan had filed C. H. Form for transfer of house in question in 1959 and the same was registered at Serial No, 4202 on 24th November, 1959 but the said Form was misplaced in the office of the Settlement Authorities concerned and accordingly the Deputy Settlement Commissioner by his order, dated 31st October, 1961 permitted Dhuni Khan to file a duplicate C. H. Form. This house was, however, included in the earmarking list in December, 1959 and was subsequently drawn in favour of Mumtaz Baig and P. T.
0. Dated 1st January, 1960 was issued in his favour. The parties since then have been litigating as to who was entitled for the transfer of the house in question. According to the petitioner, Dhuni Khan had filed C. H. Form earlier and he was entitled to the transfer and the inclusion of the house in earmarking list in December, 1959 (after the filing of the C. H. Form in November, 1959 by Dhuni Khan) and the subsequent transfer of the house in favour of Mumtaz Baig were illegal and of no legal effect. The case of Mumtaz Baig was that no C. H. Form had been filed by Dhuni Khan as alleged and in any case Dhuni Khan had foregone his rights to the transfer of the disputed house as he later on filed 'E' Form in respect of another property. As observed earlier, the first round of litigation between the parties culminated with the judgment, dated 6th October, 1980 of the L. P. A.
Bench in L. P. A. No, 168/71 whereby the case was remanded to the Authorised Officer of the Settlement Department to give a fresh decision according to law as to the entitlement of the parties to the house in dispute after giving finding on the following two questions :- "(i) Whether the predecessor-in-interest of the appellant (Noor Muhammad) was entitled to the transfer of the house in dispute on the basis of C. H. Form filed by him as found by the Deputy Settlement Commissioner (Judicial) in his order, dated 31st October, 1961 ;
(ii) Whether predecessor-in-interest of the appellant had filed Form `E' for the transfer of the house No, D/520, at Matti, District Hyderabad, and if so, its effect on his entitlement to the house in dispute.
' As observed earlier, the Settlement Commissioner, on remand, upheld the transfer in favour of Mumtaz Baig, holding that the C. H. Forms of Dhuni Khan were doubtful and not genuine and that Dhuni Khan had also filed Form 'E' for the transfer of the house No, D/520. I have heard Mr. Muhammad Ali Shaikh, learned counsel for the petitioner and Mr. Akhtar Mahmud, learned counsel for the respondents Nos. 2 to 6.
3. It was first contended by the learned counsel for the petitioner that the Settlement Commissioner was not competent to enter into the question of genuineness of the C' H. Form filed by Dhuni Khan as the order, dated 31st October, 1961 passed by the Deputy Settlement Commissioner (Judicial) bad been maintained both by Mr. Justice Noor-ul-Arfia while disposing of Writ Petition No, 774/65 and by L. P. A. Bench by their order, dated 6th October, 1980. Mr. Akhtar Mahmud, learned counsel for the respondents Nos. 2 to 6, however, contended that no restriction was placed by the judgment of the L. P. A. Bench upon the Settlement Commissioner, who could on remand, decide the question whether C. H. Form filed by Dhuni Khan was genuine or not. The judgment of Mr. Justice Noor-ul- Arfin in Writ Petition No, 774/65 had set aside four orders of the Settlement Authorities but the order, dated 31st October, 1961 of the Deputy Settlement Commissioner had not been set aside. When the judgment of the L. P. A. Bench in L. P. A. No, 168/71 is perused, it is found that the order of Mr. Justice Noor-ulArfin in so far as it set aside the four judgments subsequent to the order, dated 31st October, 1961 was affirmed but the order, dated 31st October, 1961 was not set aside. In the circumstances, I agree with the contention of learned counsel for the petitioner, that the finding of the Deputy Settlement Commissioner that C. H. Form had in fact been filed by Dhuni Khan had attained finality and this question could not be reopened by the Settlement Commissioner on remand.
4. The only other point that requires consideration is whether 'E' Form had been filed by Dhuni Khan, and if so, whether Dhuni Khan had lost his rights to the transfer of the house in question on the basis of the C. H. Form, filed by him. The Settlement Commissioner, after remand of the case to him by judgment of the L. P. A. Bench in L. P. A. No, 168/71, had called for a report from the Deputy Settlement Commissioner, District Settlement Cell, Hyderabad. The first report of the Deputy Settlement Commissioner to the Settlement Commissioner, Sind is dated 29th September, 1981.
Certified copy of this report and also the subsequent reports have been filed with affidavit-in- rejoinder dated 2nd December, 1982 of the petitioner. In this report, dated 29th September, 1981 it is stated, that the Register of 'E' Form is not readily traceable. Apparently another reference was made by the Settlement Commissioner and therefore a second report, dated 17th October, 1981 was submitted by the Deputy Settlement Commissioner. As observed earlier, the case of Mumtaz Baig is that Dhuni Khan had filed Form 'E' in respect of property No, B/520. The report, dated 17th October, 1981 of the Deputy Settlement Commissioner states that according to "Cus-2" Register it was found that property No, B/520, was not surveyed as evacuee property and, therefore, there was no entry in "Cus-2" Register about the property No, B/520. However the report stated that the successful earmarking winner Dhuni Khan had filed an 'E' Form which was registered against No, 85-E as was shown in the list of the successful winners of the properties during the year 1960. It was further stated that according to this list it was confirmed that Dhuni Khan was a successful winner of property No, B/520, Matli but the earmarking proceedings were cancelled in default.
' The report, dated 17th October, 1981 of the Deputy Settlement Commissioner shows that in fact 'E'
Form had been filed by Dhuni Khan and the registration number of his 'E' Form was 85/E. It was contended by Mr. Muhammad All Shaikh, learned counsel for the petitioner, that according to the report, dated 17th October, 1981 of the Deputy Settlement Commissioner, property No, B/520 was not an evacuee property and as such no reliance could be placed upon the list of the successful earmarking winners which contained the name of Dhuni Khan' as property No, B/520, being an evacuee property, could have been included in the earmarking list. According to Mr. Akhtar Mahmud, learned counsel for the respondents Nos. 2 to 6, "Cus-2" Register did not contain numbers of all the evacuee properties, but the same only related to Custodian tenancies and in fact the registers which had shown the evacuee properties were Evacuee Property Registers by a reference to "Cus-2" Register only it could not be decided that property No, B/520 was non-evacuee property.
In any case, it was contended that this much had been established that Dhuni Khan had filed an 'E'
Form.
5. In my view there was evidence available before the Settlemen Commissioner to the effect that an 'E' Form had been filed by Dhuni Khan in respect of some property or properties and I find no illegality in the finding of the Settlement Commissioner that an 'E' Form had been filed by Dhuni Khan. Once this finding is there on the record which is supported by the evidence, the applicant Dhuni Khan lost his rights to the transfer of the disputed house on the basis of his C. H. Form. In this connection reference may be made to the judgment of the Supreme Court of Pakistan in the case of Aziz-ur-Rehman v. Habib Bano (1), which has been relied upon by the Settlement Commissioner and has also been cited by Mr. Akhtar Mahmud in support of the case of respondents Nos. 2 to 6.
The earmarking scheme was introduced under Scheme No, V and under this Scheme, a claimant to whom no property had been transferred could apply for the transfer of a house under Scheme No, V Form 'E'. There are certain conditions laid down in Form 'E' and one of the conditions is that the applicant had to give a declaration that he had not applied for transfer of any house to him in Form C. H. And that if he had filed any Form C. H. The same had been withdrawn or his application for transfer has been rejected. The Supreme Court of Pakistan in the case of Syed Aziz-ur-Rehman v. Habib Bano observed as follows :- "The declaration attached to Form 'E' appears to us be in the nature of a condition precedent to participation in the earmarking scheme. This also appears to us to be a reasonable condition, for a person ought not normally to be allowed to participate in two different schemes. The Scheme No, V was really provided for those claimants displaced persons who were not in a position to get a house transferred to them under the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act of 1958. Thus, even if they had filed a C.H. Form for a house but they were not certain that they would be held to be entitled to the transfer thereof, they could, if so desired, abandon their claim under the Schedule and participate in the earmarking scheme. In the circumstances, we see no .Reason to depart from the law laid down by this Court in more than one case. There are no valid grounds for distinguishing those cases from the present. The ratio of these decisions appears to be that the choice has to be made at the time of making the application in Form 'E' and the choice so made is irrevocable. In our view, the filing of the 'E' Form did amount to the withdrawal of the C.H. Form, if any had already been filed."
' Mr. Muhammad Ali Sheikh referred to another case decided by the (1) PLD 1972 SC 52 Supreme Court Court of Pakistan and Kaneez Fatima v. Settlement Commissioner (1). In that case a claimant had applied for inclusion of her name in 'E' Form list under Settlement Scheme No, V but later on she abandoned her application for participation in earmarking proceedings and with the permission of Additional Settlement Commissioner filed a C. H. Form for transfer of the portion in her possession of the evacuee house. It was held by the Supreme Court that the claimant was not debarred from transfer of the house in her possession on the basis of her C. H. Form under Settlement Scheme No,
1. The case reported in 1973 SCMR 610 is clearly distinguishable. In that case the application for participation in earmarking proceedings was withdrawn and then later on a C.H. Form was filed for transfer of the house in possession of the claimant. In the instant case C. H.
Form was filed earlier and later on 'E' Form was filed by Dhuni Khan and the filing of the 'E'I Form amounted to withdrawal of the C. H. Form previously filed by Dhuni Khan.
6. The contention of the learned counsel for the petitioner that property No, B/520, Matti was not an evacuee property and as such no reliance could be placed on 'E' Form alleged to have been filed by Dhuni Khan for that property, has not impressed me. Firstly the reference made in the Deputy Settlement Commissioner's report is to the effect that property No, B/520 is not in "Cus-2" Register.
This by itself did not establish that property No, B/520, Matli was a non-evacuee property. Then generally when an applicant files an 'E' Form he would mention several properties in respect of which 'E' Form was filed. Furthermore, in any case, there was evidence before the Settlement Commissioner that an 'E' Form had been filed by Dhuni Khan and this fact by itself amounted to withdrawal of the C. H. Form filed earlier, in view of the law laid down by the Supreme Court of Pakistan and disclosed earlier.
7. This position fails on the ground that the finding of the Settlement Commissioner that 'E' Form had been filed by Dhuni Khan is based on evidence and which finding is neither perverse, nor illegal. Constitutional Petition No, S-185/81 is dismissed but with no order as to costs.
(1) 1973 SCMR 610