The petitioner as well as respondent No. 4, are claimant displaced persons. According to the petitioner he came into occupation of the ground floor of house No. E/258/32, situated in New Goth, Shikarpur Road, Sukkur, in the year 1948, while the respondent No. 4, began to occupy the first floor of the same house. The contention of the petitioner further is that the two floors of the said house are separate and independent units having nothing in common between them. This contention of the petitioner has not been denied by the 4th respondent in para. 3 of the counter-affidavit filed by him.
2. On the 8th of November 1959, the petitioner filed a CH Form for transfer of house No. E/258/32, showing it to be in his possession. It was also disclosed in the said application that the respondent No. 4 was in occupation of the first floor of the same house. On the 17th of November 1959, the peti- -tioner was issued appendix X in respect of E/258/32. This was followed on the 8th December 1959, by the issue of a P. T. O. In respect of same house to the petitioner.
3. Thereafter in the year 1960 the petitioner applied on 'P' Form for transfer of further property bearing No. E-28, situated in New Goth, Sukkur. According to the petitioner this property was a dilapidated one with no roof and was being used for storage of cattle fodder. On the 16th of August 1960, the learned Deputy Settlement Commissioner rejected the latter application of the petitioner holding that the petitioner, not having made any constructions on the plot in question, was not entitled to its transfer on `P' Form. The petitioner was, however, left at liberty to apply for the same property either on a Cl4 or an NCH Form within a weak. Accordingly on the 27th of August 1960, the petitioner re-submitted an appli--cation on the CH Form for transfer of the latter property, namely, E-28. On the 31st of August 1960, this property was transferred to the petitioner whereafter on 21st October 1964, the petitioner surrendered his rights in respect thereto in favour of his son Haroon.
Nothing further happened until the 2nd of August 1965, when the petitioner received a notice from the Deputy Settlement Commissioner requiring the petitioner to appear before him on the 20th of August 1965, with "all necessary documentary evidence in support of his claim in relation to CS No. E-258/32 and E/28." The petitioner admits having appeared before the Deputy Settlement Commissioner. On the following day, that is, on the 21st of August 1965, the leaned Deputy Settlement Commissioner passed an order by which he cancelled the P. T. O. Of the petitioner in relation to the residential house No. E-258/32 on the ground that the petitioner bad cheated the authorities by getting two houses transferred in his name. The petitioner was, however allowed to retain the property No. E/28. What strikes me as a little strange is that the petitioner was allowed to retain a property which he obtained by the so-called practice of fraud and not the property which he had innocently obtained. The learned Deputy Settlement Commissioner further observed in his order dated 21-8-1965 that "the upper portion of the house No. E-258/32, in possession of Abdul Hakim, for which house he had filed a CH Form, is transferred to him along with the ground floor as the original occupant of the ground floor. Jamaluddin had not filed any form." The latter aspect has not been men--tioned as a ground for cancelling the petitioner's P. T. O. But only as an elucidation of the scope of the P. T. O. Issued in favour of Abdul Hakim who was in occupation only of the upper floor and was yet transferred the entire building.
4. Be that as it may, the petitioner appealed against the order of the Deputy Settlement Commissioner to the Additional Settlement Commissioner, Hyderabad. This appeal was dismissed on the 31st of August 1965. I have read this order. The only operative part of it states that on perusal of the impugned order the learned Additional Settlement Commissioner was left with a firm conviction that the lower Court took the right step in withdrawing the transfer of one of the two houses as otherwise it would have fallen under the mischief of multiple transfer not permissible under law. Here again the merits of the petitioner's case have not been dealt with and no justification whatever was cited for cancelling from the petitioner's allotment property No. E-258/32 and not E/28. The petitioner thereafter went in revision before the learned District Judge-cum- Settlement Commissioner, Sukkur. This revision also failed since the learned Settlement Commissioner by his order dated 5-3-1966 made a shortwork of the revision application by dismissing it on the ground that it was a concurrent finding of fact. At this stage it is necessary to revert to certain collateral events which ended in the respondent No. 4 obtaining the transfer of the entire house No. E-258/32 in his favour. It would appear that the 4th respon--dent had also submitted his CH Form for the transfer of the same house under receipt No. 2236. The form itself does not bear any date but judging from the receipt number of the petitioner's CH Form which is No. 63, it appears that the respondent No. 4 had filed his form considerably after the petitioner's application. On this application in which the respondent No. 4 claimed to be in exclusive possession of the entire house and did not disclose even Jamaluddin's name as being in possession of a part of the house, the whole house was transferred to the said respondent and appendix and P. T. O. Issued to him on the 23rd of June 1960. It may be mentioned that the P. T. O. In favour of the petitioner had not before that date been cancelled. The trans--fer of the house to the respondent No. 4 was, therefore, obviously irregular as it was made during the subsistence of the transfer in favour of the petitioner and without notice to him.
5. The other contention upon which I am inclined to hold in favour of the petitioner is that if his transfer documents had to be cancelled in relation to any particular property he should have been duly informed by a notice of the defect which assailed the validity of his documents and he should have been called upon to show cause as to why the proposed action should not be taken against him. Had the petitioner been given proper notice it is conceivable that he would have produced the evidence in his possession to sustain his entitlement. This was not done. On the other hand the petitioner was asked to appear on a particular date before the Deputy Settlement Commissioner and to bring with him his documents of title. The nature of the proposed enquiry was not indicated and the recipient of such a notice could hardly imagine that questions of his possession of E- 258/32 or his entitlement to the said property would be gone into. This is one of the main defects which vitiates the order of the learned Deputy Settlement Commis--sioner cancelling the P. T. O. Of the petitioner in relation to E-258/32.
6. It further seems to me that the subsequent CH Form of the petitioner in relation to E/28 and the transfer of the said property in favour of the petitioner was a nullity in the eye of law. This transfer was effected during the subsistence of the first transfer of E-258/32. The normal course for the Settle--ment Authorities would have been to cancel the subsequent allotment and treat it as a nullity. The mere fact that the petitioner applied for further property on his CH Form did not ipso facto lead to the conclusion that he had cheated the settlement authorities or practised a fraud upon them unless the basic elements constituting this conduct were proved before the authorities.
7. The learned counsel for the petitioner further contended that the learned Deputy Settlement Commissioner was not competent to re-open the allotment in his favour since he could only do so in exercise of his powers of review under section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. But this power was taken away on 13-1-62 and on the date on which the said power was exercised by the learned Deputy Settlement Com--missioner, namely, 21-8-1965 he had no jurisdiction in law to do so. It was further argued that the course open to the Deputy Settlement Commissioner was to move the Settlement Commissioner for exercise of suo moto revisional powers. There is a great deal of force in this contention although in so far as the allotment of E/28 in favour of the petitioner is concerned. I would hold that this transfer was a nullity in the eye of law and did not confer any title to the property on the petitioner. In relation, however, to the cancellation of the petitioner's P. T. O. In respect of E-258/32 I am inclined to agree with the learned counsel for the petitioner that this action was not available to the Deputy Settlement Commissioner.
8. Learned counsel for the respondent argued with some degree of vehemence that the action taken by the learned Deputy Settlement Commissioner was not by way of review. In support of this contention he cited a decision of the Supreme Court reported in PLD 1963 SC 311. In that case their Lordships of the Supreme Court were seized of a situation in which more than one occupant of the house had applied for the transfer of the house. The learned Deputy Settlement Commissioner had transfer--red the house to a particular occupant without taking into consideration or even being conscious of the fact that there were other applications pending for the transfer of the same house. When the attention of the learned Deputy Settlement Com--missioner was brought to the above situation he reconsidered his order and transferred the property to the same person as initially done. This action of the learned Deputy Settlement Commissioner was set aside by the appellate authority, namely, an Additional Settlement Commissioner and the property was transferred to the other applicant thereto. However, the order of the Additional Settlement Commissioner was itself set aside by the Settlement Commissioner on the view that no appeal lay to the Additional Settlement Commissioner against an order passed in the exercise of the powers of review. The Supreme Court while addressing itself to the above case observed that since the other applications were also present on the file before the learned Deputy Settlement Commissioner who originally transferred the property to a particular applicant without taking into consideration the other applications, his subsequent order was not in the nature of a review. In other words the Supreme Court treated the first order as a non-existing order passed without conforming to the provisions of law. In the instant case, however, it is not at all proved that the 4th respondent's application was pending on the date when the disputed property was transferred in favour of the petitioner. On the other hand the indication, if any, is that the 4th respondent's application was filed much after the transfer of the property in favour of the petitioner. However, this observation of mine is only deductive and is subject to verification from the record.
9. The complication in the present case arises on account of the fact that the property in dispute, namely, E-258/32 is admittedly at least now in occupation of both, the petitioner as well as the respondent No. 4. The respondent No. 4 has not contested the position that the ground floor and the top floor are self sufficient and independent houses with nothing in common between them.
Further more the petitioner's learned counsel has made a clear statement in this petition as well as in the Court before me that his client would be satisfied if he is transferred only the ground floor of the house. It would, in these circumstances be unfair to uphold the transfer in favour of the petitioner which appears to be in respect of the whole house. At the same time the learned counsel for the 4th respondent contended with vehemence that the petitioner was not entitled to transfer of even the ground floor since he was not in possession of it within the meaning of law on the relevant date. This aspect has not been gone into by the subordinate Settle--ment authorities at any stage. I have, however, before me a legal notice dated 20th of April 1966, sent on behalf of the respon--dent No. 4 to the petitioner which alleges that the petitioner was in possession of the ground floor of the said house since before its transfer to the respondent No. 4. In view of the special facts stated above, it seems only just and fair that the entitlement of both the parties, namely, the petitioner and respondent No. 4 in relation to the said house or any part thereof should be reconsidered by the Deputy Settlement Commissioner concerned afresh and the house transferred in accordance with law.
10. In the view that I have taken of this case, the order of the learned Deputy Settlement Commissioner dated 21-8-1965 is set aside. However, the transfer of E/28 in favour of the petitioner is declared to be a nullity. As a consequence of the above finding the further orders passed by the Additional Settlement Commissioner dated 31-8-1965, and the Settlement Commissioner dated 5- 3-1966 are also set aside. The case is remanded back to the Deputy Settlement Commissioner, Sukkur, with a direction that the CH application of the petitioner as well as of respondent No. 4 will be considered afresh after notice to the parties and decided in accordance with law. The parties are directed to bear their own costs.
K. B. A.