' MIAN BURHANUDDIN KHAN, J.-- By this petition leave is sought to appeal against the judgment and order of the Lahore High Court, dated 1-3-1976 passed in Writ Petition No,1117/R of 1976.
2. The facts relevant to this petition are that property No, J/255 Arya Muhallah, Rawalpindi, a double-storeyed house, was in possession of respondent No,1 Mst. Anwari Begum. She submitted an N.C.H. Form for its transfer as a non-claimant. But as she had not cleared the arrears of rent, therefore, the property could not be transferred to her unless she had associated a claimant with her. Consequently, she associated the petitioner vide the Deed of Association, dated 24-5-1960 and the entire house was transferred to her on that basis. But according to the terms of the Deed.
Of Association the petitioner became joint transferee of the house in dispute to the extent of one- half share. The joint Provisional Transfer Order was also issued in favour of the petitioner and respondent No,1 Mst. Anwari. She, however, questioned the correctness of the Deed of Association by which 50% i,e, half of the house was transferred in favour of the petitioner but the Association Deed was allowed by the Deputy Settlement Commissioner per order, dated 4-2-1969. She filed an appeal against this order and then a revision application but both of them were dismissed. She ultimately challenged the orders of the Settlement Authorities by Writ Petition No,551/R of 1970 which was also dismissed on 21-5-1970. Thereafter, L.P.A. No, 22/70 was filed which was dismissed on 13-9-1971.
3. The house in dispute was valued at Rs,69,000 and in terms of the Agreement of Association, the petitioner had to pay a sum of Rs, 34,500. The transfer price was exclusive of the arrears of rent amounting to Rs, 6,123. The respondent, therefore, had to pay a sum of Rs, 40,623 before a final order of transfer could be passed in her favour. It appears that she entered into another association for a payment of Rs,12,000 but the compensation book which had been tenderd, contained only an outstanding amount of Rs,7,300. As the amount availabe in the compensation book was short of the amount agreed to be adjusted even this adjustment could not be made. The relevant authority, therefore, issued notice for the payment of Rs, 22,500. The notice was served through the Process Server but it was alleged that she refused to endorse acknowledgment of the same. Substituted service was, therefore, effected and thereafter one-half house transferred to respondent No,1 was resumed by the Deputy Settlement Commissioner by his order, dated 27-3- 1973 which because final as the respondent did not challenge it. The petitioner, therefore, submitted an application under Settlement Scheme No,8 for the transfer of the house and the Deputy Settlement Commissioner, per order, dated 28-6-1974 transferred the remaining half of the house also to the petitioner and the petitioner paid the entire transfer price of the remaining half portion of the house.
4. The respondent filed a revision petition which dismissed and then she filed the Constitutional Petition No,1117/R challenging the validity of orders, dated 27-3-1973 and 29-6-1974 on the ground that the proceedings under Scheme No,VIII resuming the property had not been taken in accordance with the mandate of law and that the orders had been passed behind her back. The writ petition was disposed by a learned Single Judge per order, dated 1-3-1976 holding the orders, dated 27-3-1973 and 28-6-1974 to be without lawful authority and the Deputy Settlement Commissioner was ordered to issue a proper demand notice.
5. Learned counsel has now contended that the order of remand passed by the Deputy Settlement Commissioner on 27-3-1973 and respondent No,1 having knowledge of this order, was competent to file an appeal but had failed to do so; that vide order, dated 28-6-1974 the property has been permanently transferred to the petitioner, and, therefore, the learned Judge had erred in allowing the writ petition without examining this aspect of the case ; that the property in dispute was transferred to respondent No,1 in 1960 but she fail to make payment of the transfer price until 1970 and, therefore, she has no case in equity as well particularly when the portion resumed from the name of the respondent had been transferred to the claimant-petitioner; that even on merits the order of the learned Judge in Chamber is not sustainable in law. The question whether a notice had been issued to the respondent was a question of fact on which the Settlement authorities had given a definite finding, and, therefore, this question should not have been examined by the learned Judge any further.
6. We have examined the contentions raised by the learned counsel and find that the respondent did tender a sum of Rs, 12,000 in 1964 and paid in cash a sum of Rs, 18,000 vide challan, dated 5-3- 1971. In the circumstances she was only liable to pay a sum of Rs, 4,500 and not Rs, 22,500 as given in the demand notice. The demand notice was, therefore, based an error and was not operative.
There is a statutory provision of law that a demand notice should be served in the person concerned under a registered acknowledgment-due cover and a copy of the receipt should be pasted on the file. In case of failure of service, by this method, the Department may resort to substituted service. In the instant case the Settlement authorities had resorted to substituted service without following the legal method aforesaid and therefore the demand notice is not lawful.
Notice sent through the Process Server was not served upon the petitioner. The report made on that notice was that the petitioner had refused to receive the same. It is signed by Muhammad Nazar and has not been witnessed by 'any other person. Therefore, it was rightly held that the notice as required by law, had not been served on the respondent. It is also a requirement of law that if a property is cancelled from the name of its transferee on default even after service of the notice, the order of resumption has got to be served on him or her under a registered acknowledgment-due cover which has also not been done in this case. Moreover, it may be noted that the transferee whose property had been cancelled, has a right to make the payment even after the resumption order within a specified period if the property has not yet been transferred to any other person. Hence, the respondent No,1 had a right to get this notice served on her and be allowed to make the payment even at that stage. Thus, we find no case is made out to grant leave.
Accordingly leave refuse and the petition is dismissed.