' The dispute relates to a double storeyed Evacuee House No, SW-III-61-S-3, Sant Nagar (Krishan Nagar), Lahore. Vide order, dated 15-10-1965, Settlement Commissioner transferred the said house in favour of Irshad Ali. The correctness of Transfer Order was agitated by Abdur Rauf who filed writ petition No, 97/R/66 in the High Court. The Writ Petition was accepted on 10-1-1974 and the case was remanded for decision afresh to the Settlement Authorities. Vide order, dated 16-10-1975, Syed Walayat Ali Bokhari, learned Settlement Commissioner, Lahore Division, Lahore, transferred ground floor in favour of Abdur Rauf whereas first floor was given to Irshad Ali. When the matter was being litigated before Settlement Commissioner in post-remand proceedings, Niaz Ahmad and others, respondents Nos. 1 to 5 filed a petition for being impleaded as a party which petition was turned down by the Settlement Commissioner. After the Transfer Order, dated 16-10-1975 was passed, both Irshad Ali and Abdur Rauf assailed its correctness in High Court by filing two separate Writ Petitions which however were dismissed.
2. Irshad All and Niaz Ahmad Khan, etc. Entered into a Deed of Association, dated 4-6-1966 to divide the evacuee house when the entire house stood transferred by the Settlement Authorities in favour of Irshad Ali. The essential terms of the agreement of association, dated 4-6-1966 were that the associating claimants shall pay the transfer price of Rs,9,936 in cash i.e, 25% in cash and rest from their Compensation Book and in consideration of this payment of price by the associating claimants, the transferee, namely, Irshad Ali had parted with his ownership rights in respect of part of transferred property in favour of the associating claimants as shown in the site plan marked "Red". The house was to be divided in equal halves vertically between Irshad Ali and Niaz Ahmad Khan, etc. On fulfilment of the terms and conditions specified in the Association Deed. Though the Deed was submitted on 6-6-1966 and the statements of the parties have also been allegedly recorded on 1-8-1966 but due to the litigation regarding transfer of the property between Irshad All and Abdur Rauf, the Deed of Association could not be approved by the Settlement Authorities.
Consequently, after the final transfer order was made in favour of Irshad Ali in respect of the first floor of the disputed house, a petition was made by Niaz Ahmad and others for acceptance of the Association Deed in respect of the disputed house. This petition was seriously resisted by Irshad Ali on numerous grounds. However, vide order, dated 31-7-1977, the Deputy Settlement Commissioner- II, Farid. Kot House, Lahore, accepted the Association Deed and ordered that Irshad All and Niaz Ahmad Khan, etc. Were entitled to retain upper portion of the property in terms of deed of association, dated 4-6-1966. This order has given rise to the present constitutional petition.
3. Before dealing with factual legal controversy involved in the present case, I feel it necessary to reproduce the agreement of deed of association entered into between the parties when the entire house stood transferred in favour of Irshad Alt. For facility of reference the Association Deed (Annexure A) is reproduced in extenso:-- "AGREEMENT OF ASSOCIATION ' This agreement of Association entered into between Irshad Ali son of Intizam Ali, caste Qureshi, resident of house No, S.W-III-61-S-3, Sant Nagar (Krishan Nagar), Lahore, of the party of the first part hereinafter called the TRANSFEREE and Niaz Ahmad Khan son of Ali Muhammad Khan himself and guardian of Nasim Ahmad Khan, Shamim Ahmad Khan, Naeem Ahmad Khan, Fahim Ahmad Khan minors sons of Niaz Ahmad Khan, caste Pathan, residents of Dev Samaj Road, Agarwal Ashram, Room No, 45, Lahore (the party of the second part) hereinafter called the Associating Claimants.
' Whereas House No, SW-III-61-S-3, situate in Sant Nagar, has been transferred by the Settlement Commissioner, Lahore consisting of 10 residential rooms, one garrage, two Bath Rooms, one Kitchen, as shown in the appended plan of the house which form part of his deed of Association and a P.T.O. Has been issued in favour of the TRANSFEREE BY D.S.C. II Lahore, dated 16-10-1965, and the TRANSFEREE is not in a position to pay the transfer price, the parties hereby agree and enter into this Deed of Association on the following terms and conditions:--
(1) That the Associating CLAIMANTS shall pay the TRANSFEREE PRICE, Rs,9,936 in cash i.e, 25$ in cash and the rest from their Compensation Book and shall deposit the same with the Settlement Authorities.
(2) That in consideration of payment of price by the Associating Claimants, the Transferee has parted with his ownership rights in the transferred property in favour of the Associating Claimants who will become owner of the aforesaid portion on payment of the transfer price.
(3) That the Associating Claimants Niaz Ahmad, Nasim Ahmad Khan, Shamim Ahmad Khan, Naim Ahmad Khan, Fahim Ahmad Khan, shall have a right to get a separate P.T.O. Prepared from the Settlement Department on payment of the entire price and the Transferee shall have no objection to the preparation of the P.T.O. Of Red Portion in the name of the Associating Claimants and the Transferee shall submit his P.T.O. To the Settlement Department for amendment in the light of his Association Deed.
(4) That on payment of the transfer price by the Associating Claimants they shall automatically become owner of the portion marked Red and the same shall stand transferred in their name.
(5) That the Transferee shall retain ownership of the half portion of the remaining house shown in Blue and shall have no concern with the portion transferred to the Associating Claimants marked in Red.
(6) That on ejectment of the persons who are in possession of the portion of the house, the courtyard shall be divided in such a manner that the wall A.B.C. Shown in the site plan shall be so extended from point C in a straight line dividing the court-yard equally or almost equally and the parties shall bear the cost of construction jointly.
(7) That the wall, which is adjacent to the staircase and marked A.B.C. In the site plan shall remain in joint property of the parties, each party enjoying the amenities at present shall henceforth be enjoyed in the same manner and no party shall have any right to restrict the other in the enjoyment thereof.
(8) That on actual ejectment of persons in possession of the portion of the house which has fallen to the shares of Associating Claimants, the party of the second part namely the Transferee shall, put the Associating Claimants in possession of the rooms in his (Transferees) possession nor shall utilize the stair-case for his own use and forthwith make alternative arrangement for stair-cases to the upper storey falling to his share and the Associating Claimants shall have liberty to bar access to the portion which has fallen to the share of the Transferee by constructing a wall on the roof.
' That in case if any dispute of title or otherwise of the Transferee is subsequently discovered or if the property passes out of the hand:- of Transferee because of some litigation, this Deed of Association, shall stand rescinded and the Associating Claimants shall be entitled to withdraw the amounts paid by them under this Association Deed and shall also be entitled to recover any loss or damage suffered by them on account of the Transferee.
' The parties have thoroughly understood the contents of this Deed of Association and have set their hands to it in the presence of witnesses.{{TABLE}} WITNESSES
1. Abbus Ahmad Usmani Shamshad Ahmad EXEC UT ANT (Sd.) Ist Party (Irshad Ali)
4-6-1966 (Sd.) Second Party Niaz Ahmad Khan himself and guardian of
1. Nasim Ahmad Khan
2. Shamim Ahmad Khan
3. Naeem Ahmad Khan
4. Faheem Ahmad Khan.
4. Respondents in this case have not filed written statement.
' I have heard learned counsel for the parties and examined the available record. Learned counsel for the petitioner, Irshad Ali, has raised following contentions in support of his case:--
(i) That after the case was remanded by the High Court for redecision by the Settlement Commissioner, Niaz Ahmad and others filed a petition for being impleaded as a party to the case relating to the transfer of the disputed house. This petition was rejected by the Settlement Commissioner. Thereafter, Niaz Ahmad Khan and others, the present respondents in the writ petition did not agitate the matter, so much so, that when the Settlement Commissioner vide his order, dated 16-10-1975 divided the house giving the ground floor to Abdur Rauf and the upper portion to Irshad Ali, the present respondents did not in any manner join the proceedings or agitate the matter about his transfer in the higher forums. Two writ petitions were filed against order, dated 16-10-1975, one by Abdur Rauf and the other by Irshad Ali, in the High Court. Even here, Niaz Ahmad Khan, etc. Neither participated nor agitated about their rights in the disputed property. This conduct clearly exhibited acquiescence and as such after the house was divided between Irshad Ali and Abdur Rauf, the respondents are not entitled to rely on the Deed of Association which related to a period and time when the entire house vested in the name of Irshad Ali. From 1966 down to 1977 when the Association Deed was approved by the Deputy Settlement Commissioner, the respondents evinced no interest and as such, now are debarred from claiming any right in respect of the Association Deed which related to different state of facts.
(ii) Agreement of Association can only be approved when both the associating parties wished its enforcement in its entirety. No agreement of Association can be enforced or thrust upon an unwilling party.
(iii) Deed of Association had become infructuous or incapable of being acted upon due to material subsequent change in the circumstances relating to transfer of property.
(iv) Niaz Ahmad Khan and others did not fulfil the material terms of the Deed of Association in so far as they have not deposited 1/4th of the transfer price nor any amount from their Compensation Book. In fact a sum of Rs,2,484 has been deposited by Irshad All himself. As the material terms forming the basis of the Association Deed had not been fulfilled by Associating Claimants they are not entitled to ask for the enforcement of Association Deed and consequently to share property with Irshad Ali on its basis.
(v) While accepting the Deed of Association, learned Deputy Settlement Commissioner did not record the statement of Irshad Ali, transferee of the disputed property.
(vi) Deed of Association, dated 4-6-1966 envisaged, vertical division of the property when its both portions i.e, ground floor and ' the first floor were invested in Irshad Ali. After complete ground floor had been taken away from Irshad Ali under the order of Settlement Authorities the Deed of Association was rendered incapable of performance altogether. Both the parties when entering into Deed of Association envisaged the transfer of whole house in favour of Irshad Ali and the subsequent change which came into being with the order of transfer, dated 16-10-1975 was not in their contemplation, therefore, with the dis-appearance of the material portion of property which formed an important basis for the enforcement of Associatiok. Deed, the agreement fell through in its entirety. In this view of the matter, the Deed of Association could not be approved and Niaz Ahmad and others could not be made to share the upper portion in equal half with Irshad Ali, contrary to the division spelt out in the Association Deed. It was further contended that primarily it was the duty of the transferee to make the payment of the transfer price and Association Deed for the purposes of payment of the transfer price was facility made available for the benefit of transferee and who could be compelled under law to avail of the facility against his wishes.
' In the instant case, since no payment has been made by Niaz Ahmad Khan and others in fulfilment of the terms of the agreement of Association, the transferee cannot be made to share his property with them on the basis of association.
5. Learned counsel for the respondents, however, in reply to the arguments raised by learned counsel for the petitioner, asserted that the cash payment was made by Niaz Ahmed and others which fact has been admitted by Irshad All in the statement before the Deputy Settlement Commissioner. It has been further contended that all the terms and conditions visualized in the agreement of Association had been fulfilled by them and as such even when the lower portion has been taken away from Irshad All and given to Abdur Rauf, the agreement of association did not fall through and was still capable of enforcement. The respondents therefore, are entitled to share the transferred property with Irshad All transferee on the basis of agreement of association even though it is now confined to the upper portion only of the house. Divisibility or otherwise of the upper portion of the house will not stand in the way of the respondents who were entitled to half portion of the property transferred in favour of Irshad Ali. As regards the contention that the statement of Irshad All has not been recorded by the Deputy Settlement Commissioner, it has been stated by learned counsel for the respondents that Irshad Ali appeared before the Deputy Settlement Commissioner and accepted the terms of the Association Deed. He is also stated to have submitted an affidavit before the Deputy Settlement Commissioner. Mere fact that the approval had not been accorded by the Deputy Settlement Commissioner at the relevant time and the matter stood postponed till the litigation was over would not stand in the way of the Deputy Settlement Commissioner in accepting the association deed and dividing the property in terms thereof. However, neither the copies of the statement of Irshad All nor the alleged affidavit has been filed in Court. Therefore, it cannot be said with certainty that such a statement was recorded or an affidavit was tendered. As stated in the preceding paragraph neither written statement was filed nor any document attested or unattested was placed by the respondents on file of this Court.
In terms of the deed of association, dated 4-6-1966, the parties had agreed to divide the whole of the house vertically in equal halves. Portion marked "red" was to go to the associating claimants, whereas that marked "blue" was to vest in Irshad Ali transferee. The Associating Claimants were to get this property in terms of Deed only subject to fulfilment of the conditions relating to payment of transfer price. As has been stated above the price is stated to have been paid by Irshad All as is evident from the Treasury Challan Annexure C placed on file. The factum of payment by Irshad All has been specifically asserted in para 2 of the writ petition. However no written statement has been filed by respondents to controvert the allegation regarding payment of price. In the absence of the written statement controverting this allegation, it can be safely presumed that the allegation regarding payment of Rs,2,484 stands admitted. Even otherwise, when the parties entered into an agreement of Association, the entire house comprising two storeys stood transferred to Irshad Ali.
On these premises, he entered into an agreement of Association with Niaz Ahmad Khan and otheRs, The vertical division of the property was agreed upon between both the parties.
Subsequently, however, the entire ground floor was taken away from Irshad Ali and given to Abdur Rauf. Transfer in this manner stood uninterfered even by the High Court when two writ petitions filed by Irshad Ali and Abdur Rauf were dismissed by it. Both the parties had in view the division of the property on the lines indicated in the agreement of association and the site plan. With the subsequent change in transfer of property, the material basis of the agreement of association disappeared. Even otherwise in the last clause of the agreement it has been provided that if there is any dispute of title subsequently discovered or if the property passes out of the hands of the transferee because of some litigation, the deed of association shall stand rescinded giving the associating claimants right to withdraw the amounts paid by them under the Deed of Association.
This in a way gives clue to the mind of the Associating parties. In the instant case, a material portion of the property comprised in ground floor has been given to Abdur Rauf vide Transfer Order, dated 16-10-1975 of the Settlement Commissioner, Lahore Division. When this change is looked at in conjunction with the non-payment of transfer price by the Associating Party, it becomes clear that the Association Deed could no longer be acted upon and that the Associating Party namely, Niaz Ahmad Khan and others could not be given a share in the upper portion of the disputed building quite contrary to the terms of the Association Deed. Both the contracting parties to the association deed had assumed continued existence of transfer of the whole of property for carrying out vertical division of the two storeyed house in accordance with the terms of the Association Deed dated 4- 6-1966 but in the events that followed a material change came into being with the introduction of Abdur Rauf transferee of the lower portion. This change had materially shaken the foundations of the Association Deed. The agreement for vertical division of the property arrived at between the Associating parties at the time when the whole house vested in Irshad All cannot be performed/enforced in the changed circumstances.
6. In view of the above, I am of the opinion that the learned Deputy Settlement Commissioner acted without jurisdiction in approvin the Deed of Association, dated 4-6-1966 giving a share in first floor o the house in terms of Deed of Association to the respondents. Writ B petition, therefore, is accepted, order dated 31-7-1977 passed by the Deputy Settlement Commissioner-I1, Farid Kot House, Lahore is declared to have been passed without lawful authority and of no legal effect.
7. In the circumstances of the case, parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.