1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to examine whether the High Court of Lahore has not by its judgment, dated the 16th January, 1975 unjustifiably interfered with the final order of the Chief Settlement Commissioner with regard to the transfer of property 265-A and whether the High Court's order is not based on a misconception of facts.
2. Property bearing No. 265-A, 266/A and 267/A situated at Ratta Road, Rawalpindi, consists of about 15 rooms. Intizar Ali Shah, the appellant was in possession of to rooms bearing No. 265-A. He applied on a C.S. Form for the transfer of this portion alone which was in his possession and bears the number 265/A. Appendix 'X' was issued in his favour. A big hall was in possession of one Haji Ibrahim, a claimant who in the first round was found not to have applied for its transfer and to be in unauthorized possession. The other portions of the property were in possession of locals who were not eligible for its transfer as the price exceeded Rs 10,000. The portions other than 265-A were listed for the earmarking. The appellant thereupon moved the Deputy Settlement Commissioner with an application that 265-A for the transfer of which he was found eligible and entitled included the portions 266/A and 267/A and the entire property should, on account of his entitlement and eligibility, be transferred to him. He also represented to the Deputy Settlement Commissioner that he had associated with the contesting respondent Dr. Sardar Ahmad in the transfer of the entire property leaving for himself only one per cent share in it and allowing 99 per cent share to the contesting respondent. This joint application submitted by the appellant and the contesting respondent is dated 22-11-1959. On 16-11-1959 Dr. Sardar Ahmad had also filed a C.H. Form claiming property A/265 to A/267. There was also on record the C.H. Form filed by Muhammad Ibrahim who finally succeeded in getting the property divided and a portion transferred to him. There is an order recorded on 28-11-1959 which reads as follows:- "Properties from A/265 to A/267 is one unit in E.T.O. Records. There are to C . H . Forms for these properties. Please dispose of these forms jointly."
3. On 7-12-1959 the Inspector submitted a factual report about the occupation of the different portions of these properties. The Deputy Settlement Commissioner on 10-12-1959 passed the following order:- "May be transferred to Syed Intizar Ali Shah and Dr. Sardar Ahmad, claimants jointly. Obtain agreement."
4. A P.T.O. Dated 12-12-1959 issued to the appellant and the contesting respondent for the entire property in the share of 1/100 for the appellant and 99/100 for the contesting respondent. It was Haji Ibrahim who thereafter challenged his own exclusion in getting the entire transferred to himself and succeeded. It was ultimately as a result of proceedings taken by the contesting respondent in the constitutional jurisdiction that the case came to be remanded to the Chief Settlement Commissioner for disposal of a review petition filed by Haji Ibrahim which came to be decided on 10-11-1969. The Chief Settlement Commissioner after locally inspecting the property found that it was divisible into to units one in possession of the appellant and the other the remaining excluding that portion. Hap Ibrahim ultimately got the other portion and the transfer to the appellant was confined to 265-A as originally offered to him by Appendix 'X'.
5. Dr. Sardar Ahmad thereafter filed a constitutional petition and a Latters Patent Appeal and a petition for leave to appeal with a view to avoid the division of the property and the transfer of a portion bearing No. 266 and 267 to Haji Ibrahim but was unsuccessful at all these stages.
6. The second round of litigation started with an application filed by the appellant before the Deputy Settlement Commissioner seeking modification of the P.T.O. In respect of the property ultimately found transferable to him i.e. The shop bearing No. 265-A. He contended that his association and jointness of transfer with Dr. Sardar Ahmad was confined to property bearing No. 266 and 267 and did not extend to 265-A the price of which could be deducted from his compensation book in its entirety and there was no occasion for associating with him for the transfer of that property. The Deputy Settlement Commissioner refused to give effect to such a request of the appellant whereupon he appealed to the Additional Settlement Commissioner who allowed his request on the ground that the joint transfer requested for and obtained by the appellant and the contesting respondent no longer held good as the final order had substituted such a joint transfer by the original transfer of only property No. 265-A to the appellant and what further weighed with him was that there was no formal agreement of association as required by law to support the joint transfer as none was filed pursuant to the order of the Deputy Settlement Commissioner dated 10-12-1959 (already reproduced). The appeal of the contesting respondent before the Settlement Commissioner failed whereupon he instituted a constitutional petition in the High Court which succeeded. The learned Judge of the High Court held as follows with regard to the agreement between the parties:- "A perusal of the documents noted above unquestionably go to show that the parties did enter into an agreement of association by which respondent No. 3 retained 1% while the petitioner was given 99 % share in the property No. A/265. This agreement was also accepted and acted upon by the Deputy Settlement Commissioner who issued the P.T.O. Accordingly. The parties also maintained- its effectiveness in the first round of litigation uptill the High Court. The order of the Settlement Commissioner is thus based on misreading of the record."
7. By reference to section 39 of the Contract Act and section 15 of the Specific Relief Act, the learned Judge held as follows:- "These provisions undoubtedly make clear that in the changed situation as it is in the present case, the option to continue the agreement lies with the promise. The petitioner, therefore, has the right to seek performance even in the prevailing circumstances."
8. It was also found that this agreement between the parties had been entered into before the Press Note, dated 13-2-1960 under para. 33 of Settlement Scheme No. 1 had come into force and the learned Judge relied upon the decision of this Court in Muhammad Razaq Hassan v. Settlement Commissioner Sahiwal 1968 SCMR 823 for holding that the agreement was valid and legal and held good even in the changed circumstances.
9. The learned counsel for the appellant contended that the High Court has substituted a finding of fact with regard to the existence of an agreement of association and thereby exercised a jurisdiction not possessed while deciding a constitutional petition. It was further contended that none of the authorities has held that there was in fact a formal and a proper agreement of association executed between the parties and was formally approved by the competent Settlement authority. As a matter of fact the order of the Deputy Settlement Commissioner, dated 10-12-1959 asking for an agreement remained uncomplied with. The learned counsel has thereafter referred to other agreements entered into by the parties i.e. The one, dated 25-10-1961 and the other, dated 4-2-1963 to support his contention that there was no jointness of transfer and none could be in respect of Shop No. 265/A and whatever association did take place or could take place was confined to No. 266 and 267 which ultimately was transferred to Haji Ibrahim.
10. Appendix X, dated 20-11-1959 which issued to the appellant in respect of transfer of Shop No. A/265 mentioned a price of Rs.7,680 and gave him various options with regard to the payment of price, association and required him to furnish an attested copy of the agreement of association indicating the share of each transferee, the compensation book of each claimant and concluded with the following warning:- "Please furnish a reply to this Memorandum and produce the abovementioned documents in my office on 23-11-1959 at 9 a.m. (the) failing which it will be presumed that you agree to the transfer of the aforesaid property to you on payment of the abovementioned amount in cash which will be recoverable from you in thirty-six equal monthly instalments. Please note that failure to pay to consecutive installments will make you liable to ejectment from the property and the outstanding amount will be recoverable as arrear of land revenue. "
11. It was in this background that on 23-11-1959 a joint application was submitted alongwith their compensation books by the appellant and the contesting respondent claiming the transfer of the other portion of the property No. 266, 267 claiming them to be a part of property No. 265 and indicating their share as 1% for the appellant and 99% for the respondent. This was given effect to by the Deputy Settlement Commissioner by his order, dated 10-12-1959 by making joint transfer in the names of both. It is true that he did ask for an agreement and that no other agreement was furnished by the parties. However, the fact of joint transfer and the P.T.O. That issued in consequence thereof on 12-12-1959 concludes the matter for as already indicated both of them had applied on C . S . Or C . H . Form for the transfer of the property and they had joined in representing to the Deputy Settlement Commissioner that they wanted a joint transfer in that proportion. The representation having been accepted and duly given effect to and the parties having continued to subscribe to that agreement till Dr. Sardar Ahmad ultimately failed in this Court in seeking leave to appeal against dismissal of his Letters Patent Appeal establishes that not only there was an agreement and representation but that it was acted upon and the parties subscribed to it during the long course of litigation that followed. In this background the appellant cannot be allowed to resile from the agreement which had taken place more than 10 years ago, which had been given effect to and acted upon and they had regulated their conduct in accordance therewith. The jointness of the transfer ordered by the Deputy Settlement Commissioner on 10-12-1959 was not dependent on the obtaining of the agreement. Even if the parties defaulted in filing the agreement the joint transfer remained intact and P.T.O. Held good with the reduction in the extent of the property. Shop No. 265/A to was jointly shared by both these as per their application filed on 22-11-1959 which forms the basis of transfer ordered on 10-12-1959.
12. It is true that that order of joint transfer stands substituted by a final order passed by the Chief Settlement Commissioner on 16-11-1969 which keeps it intact but the substitution is only with regard to extent of the property and not with regard to either the share or jointness of the transfer. In the circumstances, we consider that the decision of the High Court is eminently justified on the facts of the case and the appellant could not in view of his conduct and representation be heard against the jointness of the transfer or the C share arranged between themselves when he had been a party to the proceedings subscribing most of the the to the interest of Dr. Sardar Ahmad. This appeal is, therefore, dismissed with costs.