1. ' The petitioner claimning to be the uncle of one Juma Khan, has filed this petition challenging the order of, the learned Settlement Commis sioner. The controversy relates to a portion of a plot of land bearing No. J.707 Fatima Jinnah Colony, Karachi. Besides Juma Khan, one Noor Muhammad and the respondent No. 4 were in possession of their respective separate portions of the said plot.
2. Juma Khan had in possession 63 Sq. Yds. whereas the respondent No. 4 was in possession of 40.85 Sq. Yds. and each one had constructed their houses. All the three occupants filed separate applications for transfer of the respective portions of the building site in their possession. According to the petitioner in view of the benefit conferred under the Settlement Scheme No.VI to the Joint Transfer, an application was made on 19-9-1960 for joint transfer of the building site in their possession. According to the policy of the Department such transfer was to be made in the name of one person therefore Juma Khan and Noor Muhammad gave their no objection if the plot in question was transferred in the name of the respondent No.4. It was, however, stated in the application that the occupants will continue in possession. In his order, dated 19-9-1960 the Deputy Settlement Commissioner had recorded that 'all the three persons had filed separate transfer applications, but now they have moved an application for a joint transfer in the name of Muhammad Ibrahim.' However, Appendix IX was issued in the name of the respondent No.
4. The respondent No. 4 entered into an agreement of Association for payment of price, but no payment was made, although final notice was given to him on 23-11-1971 by the Deputy Settlement Commissioner. Therefore by order, dated 30-1-1971 the Deputy Settlement Commissioner cancelled the transfer and put it to auction. On 5-4-1971 the respondent No. 4 filed application for deletion of the said property from the auction list as he had paid the price. On the direction of the Additional Settlement Commissioner, the Deputy Settlement Commissioner held an inquiry and by an order, dated 9-4-1974 found that the adjustment was illegal and was made in 1973; two years after the resumption order, dated 30-1-1971 had been passed. Juma Khan filed revision application before the Additional Settlement Commissioner who by his order, dated 29-5-1975 set aside the order dated 30-1-1971 with the direction that the area in possession of the parties be transferred to them on the basis of their original application, and the price may be recovered in cash. Accordingly Juma Khan paid sum of Rs. 1,497 on 28-1-1975 and a transfer order in respect of a portion of the property was issued to him. The respondent No.1 had also filed Revision Applica tion against the order, dated 9-4-1974 passed by the Deputy Settlement Commissioner, but in that revision Juma Khan was not impleaded as a party. The Deputy Settlement Commissioner by his order, dated 6-6- 1974 forwarded the matter to the Settlement Commissioner to hear this Revision Application, as he had already decided the Revision Application of Juma Khan. The said Revision Application of the respondent No. 4 was dismissed on 26-6-1974 against which order he filed a Civil Petition 1298 of 1974 in the High Court. This petition was allowed by judgment, dated 12-3-1980 and the case was remanded to the Settlement Commis sioner to hear the arguments of the parties as a pending matter. The Settlement Commissioner by the impugned order rejected the Revision of Juma Khan and held that he and Noor Muhammad, the other applicant, had surrendered their right in favour of the respondent No. 4 and consequently the revision filed by the respondent No. 4 was allowed.
3. ' The petitioner claiming to be the nephew of Juma Khan and the owner of the disputed property by virtue of an oral gift made by Juma Khan filed this petition. It is stated that Juma Khan who died on 3-9-1981 at Karachi had made an oral gift on 7-2-1975 followed by a declaration of gift, dated 17-2- 1975 whereby the property transferred to him was gifted to the petitioner. The impugned order was passed on 25-3-1981, but it seems that till his death on 3-9-1981 Juma Khan did not take any action.
4. ' Mr. Abdul Fahim Khan the learned counsel for the petitioner contended that Juma Khan had not surrendered his right in favour of the respondent No. 4 but he had agreed for a transfer in the name of the respondent No. 4 as a leader for transfer on cluster basis. It was, further contended that Juma Khan had not received any consideration from the respondent No. 4 for surrender as held by the respondent No.1. It was also contended that the transfer made by Juma Khan was not hit by the principles of lis pendis.
5. ' The learned counsel for the respondent has contended that the petitioner had no locus standi to file the petition. Any person aggrieved by an order is entitled to file a Constitutional Petition challenging the validity and legality of the action. The question arises whether petitioner is an aggrieved person. In this regard reference can be made to Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223 where following observation was made: 'It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise.'
6. ' This was followed in PLD 1978 Lah. 752 and PLD 1979 Kar.
155. Therefore, any person who by the impugned action is deprived of any benefit or advantage is an aggrieved party and entitled to file a Constitutional Petition. The entire case of the petitioner depends upon the fact whether the disputed property was gifted to him in 1975. This fact could have been agitated by the petitioner before the Settlement Commissioner where revision application was pending and perhaps on the basis of evidence and statement of Juma Khan who was alive at that time, petitioner would have established his right to the property. The petitioner did not take any action before the Settlement Department and, therefore, his entitlement has not yet been established. The petitioner has filed with his affidavit-in-rejoinder a photo copy of the declaration of gift, dated 17-2-1975 but the gift cannot be established by mere filing this document.
7. The question whether the property had been gifted away to the petitioner is a disputed question of fact which can be determined only after recording evidence. In the present proceedings, it is not possible to investigate such facts and to hold that the property was gifted away to the petitioner.
8. As it is not possible to decide such questions of fact, the petitioner's entitlement cannot be determined in these proceedings and he cannot be termed as an aggrieved party. The petition therefore, fails. The petitioner will, however, be at liberty to file a proper action in a civil Court for declaration of his rights or challenge the impugned order on the basis of gift in a civil Suit, provided it is maintainable under law. The petition is, therefore, dismissed with no order as to cost.