' This petition calls into question the P.T.D. Issued in favour of the respondent on 6-7-1973 and the earlier auction, dated 28-9-1967 made by the Settlement Department in favour of Abdul Hameed.
The relevant facts are that Muhammad Jafar applied for transfer of the House No, 10/B, Badin on L.H. Form. Appendix 9 was issued to him for the same on 23-12-1959 and P.T.O. Was also issued on 21-12-1959 for a price of Rs,5,382. The installment order was also issued in favour of Muhammad Jafar and he paid Rs,454 towards the public charges as first installment/public charges in respect of that property on 11-3-1960 and on 21-3-1960 a clearance certificate was issued to Muhammad Jafar.
2. Thereafter, nothing appears to have been done by Muhammad Jafar in respect of the said property till 1977.
3. On 28-9-1967 the said property was put to auction in favour of Abdul Hamid for Rs,2,135 and on 11-10-1967 the auction was confirmed by the Additional Settlement Commissioner.
4. Then again nothing appears to have been done by Abdul Hamid in respect of this property till 1973.
5. On 5-7-1973 an agreement of Association between Abdul Hamid and respondents Nos. 3 and 4 Muhammad Jafar and Muhammad Ismail was made and by that agreement Abdul Hamid surrendered all his rights in respect of the said property in favour of Muhammad Jafar and Ismail.
The said agreement of Association was accepted by the Settlement Authority and they issued a P.T.O. In favour of Muhammad Jafar and Muhammad Ismail on 6-7-1973, after the price of the property had been paid by Jafar and Ismail, respondents Nos. 3 and 4.
6. Muhammad Jafar and Muhammad Ismail have claimed that on 17-7-1973 they obtained the possession of the said property from the Settlement Department as the same was unoccupied and was in the shape of a plot and it is an admitted position that till today the respondents Nos. 3 and 4 are in possession of the said property.
7. On 23-5-1977 one Iqbal Ahmed, who is the attorney of the legal heirs of Muhammad Jafar Memon, the original transferee of alleged form, applied to the Revenue Minister. The same was replied by the Settlement Commissioner Sind on 20th June, 1977 and the petitioners were informed that since P.T.D. Is issued to MessRs,' Muhammad Jafar and Ismail long ago and the relevant laws stand repealed, hence no action can be taken on their application. The petitioners have thereafter approached this Court.
8. Mr. Abdul Naseer Khan, learned counsel for the petitioner has submitted that the P.T.O. Having been issued in favour of Muhammad Jafar Memon on 21-12-1959, the property could not be put to auction. The legal contention appears to be correct because paragraph 24 of schedule to the Displaced Persons (Compensation and Rehabilitation) Act of 1958 makes it very clear that once a property has been transferred to someone on the basis of installments then the transfer cannot be cancelled without giving the person concerned a notice in writing to pay the installments and on his failure to do so the transfer can be cancelled. To the same effect is a decision of the Supreme Court in 1983 SCMR 782 and in an earlier case in NLR 1981 SC J 536 the same proposition was established that transfer of a house cannot be cancelled without issuing a notice of demand to the transferee. I have, therefore, no hesitation in accepting the proposition of law put forward by the petitioner's counsel that the property should not have been put to auction in 1967 as there is no evidence available that notice of demand as required under para. 24 had been issued to Muhammad Jafar Memon.
9. But there are a number of difficulties in the way of granting of this petition. There is complete lack of activities on the part of Muhammad Jafar Memon and his L. Rs, towards the payment of the balance of the price of the said property in installments, right from 21st March, 1960 till 23-5-1977, which comes to a period of full 17 years not only that the petitioners have failed to take any action on their part but what is more important is that they have left the occupation of this property and have suffered the property to be put to auction and then allowed the respondents Nos. 3 and 4 to acquire interest in the said property by virtue of an agreement of Association. Therefore, the present position is that even though the auction in favour of Abdul Hamid was not legally justified but still the fact is that the said auction did take place on 28-9-1967, and that the property which according to the petitioners themselves had come to be demolished completely on account of storm of 1967 was allowed to be first sold in public auction in 1967 and then it was allowed to be transferred by an agreement of Association in favour of respondents Nos. 3 and 4 and then again the respondents Nos. 3 and 4 came into the possession of the said property through orders of the Settlement Authorities. Therefore, the basic question is whether this petition should be allowed in favour of persons who have slept over their rights for 17 years and have allowed strangers namely respondents Nos. 3 and 4 to acquire interest in the said property in the position of transferee in good faith and without notice of the rights of the petitioners in the said property, who acquired the interest of the auction purchaser of the said property from the Settlement Department. It would be really doing injustice to respondents Nos. 3 and 4 who had no information in respect of the rights of the petitioners for the said property and, therefore, in my view respondents Nos. 3 and 4 should not be penalized by grant of petitions of these persons who had been guilty of lathes or inaction over the long period of 17 years, It is an admitted position that the petitioners left the property during the war of 1965 and they did not return to Badin thereafter at all. The petitioner's counsel also wanted to submit that there had been irregularities in the matter of auction made by the settlement authorities but in view of what I have said earlier these irregularities are of no consequence, particularly respondents Nos. 3 and 4 had nothing to do with the same.
10. Moreover, Evacuee and Rehabilitation Laws having been repealed in 1975 with effect from 1st July, 1974 the Settlement Commissioner was quite justified in not reopening the matter which had obtained finality in 1967 or at the maximum in 1973.
11. The petitioner's counsel wanted to show that the P.T.D. After the title had been acquired by the petitioner was of no consequence and he placed his reliance upon 1982 SCMR 1163. However, in the first instance this authority of the Supreme Court would not be applicable in the present case in view of the fact that the property did not stand acquired by the petitioners as they had failed to pay installments of the same, and further as I have observed earlier, the petitioners have allowed rights of respondents Nos. 3 and 4 to be created on account of their inaction and laches and, therefore, this petition is dismissed with costs.