M.S.H.QURAISHI, J.--The dispute in this Settlement matter relates to the transfer of bungalow No.92, Dharamsala Road, Lahore Cantonment, comprising an area of 2,203 acres. It was first transferred to one Col. Ansari but the transfer was cancelled in the result of information furnished by Mst.
Masooda Begum and the bungalow was transferred in her favour on 12-7-1961. On payment of the price, a P.T.D. Was issued in her favour on 14-11-1961 in respect of the "Full Bungelow". She then instituted an application for the ejectment of Major Tehmas Khan respondent who was in occupation of the bungalow and an order of his ejectment was passed on IS-12-1963. He challenged the decision in appeal before the District Judge but when the same was dismissed on 5-6-1964, he invoked the constitutional jurisdiction of the Lahore High Court by moving Writ Petition No.976/R of 1964, wherein he challenged, inter alia the transfer itself made in favour of Mst.
Masooda Begum on the ground firstly that he had filed LH form for transfer of the bungalow in his favour on 8-5-1959 but the same had not been disposed of, and, secondly, that there was no formal order of transfer made in her favour and as such the P.T.D. Issued in her favour was of no legal effect and was liable to be quashed. He also made a prayer for issuing a direction to the Settlement authorities to transfer the bungalow to him. The stand of the Department in its report filed before the High Court was that the property was valued at more than Rs.10,000 and as such he, being a local, was not entitled to its transfer and that for this reason there was no necessity of hearing him before transferring the property to Mst. Masooda Begum. In view of this report and after hearing the respondent's counsel, the High Court held him to be not entitled to retain the property and accordingly dismissed his writ petition in limine on 19-7-1965. No further remedy was taken against this dismissal.
2. However, some side litigations followed. In the execution proceedings of the ejectment order, the respondent came out with the plea that the ejectment matter had been settled by a compromise deed. This document then became subject-matter of a suit for declaration brought on 19-5-1966 by the heirs of Mst. Masooda Begum, in which an ex parte decree was passed on 25-3-1969 which decree stood affirmed when the respondent's appeal was dismissed on 18-5-1978. Meanwhile, a suit instituted by the heirs of Mst. Masooda Begum for recovery of rents from the respondent had been decreed on 27-12-1969. The respondent also brought a suit against the heirs of Mst. Masooda Begum basing his claim on adverse possession but the suit was dismissed on 29-7-1978 and his appeal was dismissed as withdrawn on 3-10-1978 in view of the judgment of the High Court dated 19-7-1965 in the aforesaid Writ Petition No.976-R of 1964.
3. The next round, on the Settlement side, began on 23-10-1973 when the respondent filed a plot form. Four days later, i.e., on 27-10-1973, he along with his to sons filed form for the transfer of the bungalow under the Revised Settlement Scheme No.VIII but the same was promptly rejected by the Deputy Settlement Commissioner or, 30-10-1973 on the ground that the property was not available having been transferred to Mst, Masooda Begum, against which transfer the respondent's writ petition had failed. No further remedy was again sought against this order of the Deputy Settlement Commissioner.
4. The respondent, nevertheless, again moved, this the a miscellaneous application, on 5-I1-1973, before the Chief Settlement Commissioner seeking transfer of the bungalow in his favour but the application was rejected on 24-5-1974 upon the view that the question of transfer had become res judicata by the High Court's judgment in Writ Petition No.976-R of 1964. The respondent, to, did not challenge this order of the Chief Settlement Commissioner, further.
5. Some the later the heirs of Mst. Masooda Begum sold the bungalow to the appellants, Mrs. Zohra Arshad and others on 3-12-1974. The Settlement laws were themselves repealed with effect from 1- 7-1974.
6. Nevertheless, the respondent sought to re-open the matter by moving an application 22-2-1977 for transfer of a plot measuring 5 Kanals out of the grounds of the bungalow, asserting that his earlier application made under Scheme No. VIII on 23-10-1973 was still pending un disposed of. On this application, the Deputy Settlement Commissioner held that there was no specific order of transfer of the bungalow in favour of Mst. Msooda Begum and as such the P.T.D. Issued in her favour was "an invalid document and not existent in the eye of law".
By this reasoning he held the property to be available and as, according to him, there was no other contestant, he transferred the entire bungalow in favour of the respondent vide order dated 27-8- 1978.
7. The order was challenged by the appellants through Writ Petition No.1091-R of 1978. The learned Judges of the High Court, while interpreting subsection (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), held that "If, however, the C.S.C. Does not pass any such order, then the entire area which is in excess of three times the plinth area shall not be a part of the house" and that, therefore, the area in excess of three times the plinth area was not in law transferred to Mst. Masooda Begum. The learned Judges thus held that the transfer made in favour of Mst. Masooda Begum was only to the extent of "the bungalow plus three times the plinth area and no more". They, accordingly by order dated 1-11-1981 declared the order of the Deputy Settlement Commissioner impugned before them to be without lawful authority to the extent it affected the transfer of the bungalow with three times the plinth area in favour of Mst. Masooda Begum and directed that five Kanals out of the excess area be transferred to the respondent and the area, if any, still remaining available, be sold to the appellants or be disposed of according to law.
8. The appellants moved this Court and leave was granted to them to consider the contentions that:- (i)The decision of the High Court slicing away part of the plot upon which the bungalow stood was violative of the relevant law. In this connection, reference was made to the Chief. Settlement Commissioner's instruction contained in Memo. No.4j52-PI-Reh/60, dated 12-7-1960, appearing at page 517 of the new Settlement Manual. '
(ii)There being no prayer for slicing the area nor any such question, having arisen from the writ petition, the learned Judge had acted suo motu in giving his decision but he had done so without It notice and without impleading the Military Lands and Cantonments Authorities.
(i.e)It was not for the High Court to have decided the question of entitlement of Tehmas Khan."
9.The arguments before us centered mainly round the interpretation of the second proviso to subsection (4) of section 2 of Act XXVIII of 1958 and whether the dispute had not already become res judicata. The subsection defines a "House" to mean an "evacuee residential premises) together with the gardens, grounds, garages and out houses, if any,' attached to or appurtenant to such premises". The second proviso toy the subsection reads: "Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including outhouses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house."
10. Mr. A. R. Sheikh, appearing for the appellants, submitted that the entire property constituting bungalow No.92 having been transferred and a P.T.D. Issued in favour of the appellants' predecessor, no question could subsequently arise in regard to the excess area; that, even otherwise, the question of slicing away part of the grounds in a property situate within the Cantonment limits was not permissible in view of the Chief Settlement Commissioner's instruction dated 12-7-1960. The instruc--tion, which is contained in Memo. No. 4952-P1-Reh/60, dated 12-7- 1960, is to the following effect: "It has been observed that land in excess of three times the plinth area of houses, in cantonments cannot be disposed of separately in view of the Cant. Land Admn. Rules, 1937. The Chief Settlement and Rehabilitation Commissioner had therefore decided that such land should be given to the transferees of the houses on the prevailing market value. In case they are not prepared to take the extra land, the whole house alongwith such land should be put to auction as one Single Unit."
11. Mr. M. Arif, appearing for the respondent, on the other hand, submitted that the area in excess of three times the plinth, area could not, by virtue of the second proviso, be treated as part of the house in the absence of any order by the Chief Settlement Commissioner in that regard and that, therefore, the excess area was, in law, never transferred to Mst. Masooda Begum. In this connection he further submitted that the instruction issued by the Chief Settlement Commis--sioner in respect of a cantonment property could not override the statute and pointed out that from the original property a portion measuring 507 Kanals had already been given away to one Muhammad Munir as property No.92-B reference of which fact was to be found in the judgment of the High Court. On this analogy also, he urged that the Settlement authorities could give a portion of the excess area to the respondent to,
12. As can be seen, under the second proviso to subsection (4) of section 2, the following shall not be treated as part of the house:- (1)area in excess of the plinth area of the house including out houses and garages, plus three times such area, or (2)such part of the excess area as the Chief Settlement Commissioner may determine.
What is, therefore, intended by the second proviso, is that while ordinarily the excess area shall not form part of the house. The Chief Settlement Commissioner may in his discretion decide not to exclude the entire excess area but only a part thereof. What will be the extent of that part is not prescribed by law and is left to the discretion of the Chief Settlement Commissioner. He may thus determine that a part or even no part of the excess area be excluded. That being so, the instruction issued by him in respect of properties in cantonments is nothing but a manifestation of the exercise of that discretion. The instruction, therefore, cannot be said to override the statute or be in excess of his powers under the statute. It is to be noted that in this particular case the land of the bungalow was not in the absolute ownership of the evacuee, but according to learned counsel for the appellants, and the contrary was not shown, was under the Old Grant (vide extract from the General Land Register at page 155 of the paper-book) on terms and conditions as set forth in the Governor-General's Order No.179 of 12th September, 1836 (at page 128 of the paper-book). He, therefore, submitted that a sub-division of property in cantonment areas by the Settlement authorities would be against the said Order and also against the Cantonment Land Administration Rules, 1937. We have at page 121 of the paper-book copy of letter No.18/6/I/D-5/60, dated 16-1-1960 from the Director, Military Lands 6 Cants. Ex Officio Deputy Secretary to Government of Pakistan, addressed to the Ministry of Rehabilitation, to say that lands in cantonments belong to the Central Government and are held by private parties either on licence or on lease and as such the instruction of the Chief Settlement Commissioner in regard to excluding the excess area was at variance with the terms of the holdings and affected the proprietary rights of the Central Government. It was further said that the rights of the transferees were governed by the various terms on which the evacuees originally held the property and that sale of land in cantonments was not permissible under the Cantonment Land Administration Rules, 1937. It was, therefore, requested, in the letter, that the Chief Settlement Commis--sioner be advised "not to sub-divide holdings in cantonments, transfer them as single unit and not to sell the lands etc. In cantonments", Another letter which is bearing the same date, i.e., 16-1-1960 at page 122 of the paper-book, shows that transfer of properties in cantonments held under the "Old Grant" terms required sanction of the Central Government in the Ministry of Defence. These letters explain the background of issuing the aforesaid instruction dated 12-7-1960 by the Chief Settlement Commissioner. The case of Muhammad Munir, in whose favour a part of the grounds of the bungalow had been given, and which was cited by the respondent's counsel to support his case, would, if at all, defeat his case because that would go to indicate that the Chief Settlement Commissioner had considered only that part of the excess area which was given to Muhammad Munir as not forming part of the house, thus leaving the remaining part of the excess area to be treated as part of the house.
13. Even otherwise, the plea that the excess area was in law not transferred in favour of Mst.
Masooda Begum and to that extent the transfer made in her favour was void, had been available but not taken by the respondent in his earlier Writ Petition No.976-R of 1964. The plea had, therefore, become barred in any subsequent proceeding on the principle of constructive res judicata. He had, therefore, lost right to seek transfer of the whole bungalow or any part thereof in his favour. The orders passed by the Deputy Settlement Commissioner on 30-10-1973 and by the Chief Settlement Commissioner on 24-5-1974 had also acquired finality having not been challenged. Moreover, on the repeal of the Settlement laws with effect from 1-7-1974, the case could not even otherwise be re-opened because there was no substance in the assertion that the respondent's application for the 5-Kanal plot was still pending a decision.
14. For the above reasons, we accept this appeal with costs and set aside the impugned judgment of the High Court, dated 1-11-1981 as also the order of the Deputy Settlement Commissioner, dated 27-8-1978.