' House No, B-XII-10-S-11, situated in Street No, 5, Krishan Nagar, Gujranwala was in possession of Wali Muhammad Khan, father of the petitioner and respondents Nos. 1 and 2. He filed N.C.H. Form on 7-8-1959. The Deputy Settlement Commissioner transferred the house in his favour, on 9-2-4960.
Since he was non-claimant, arrears of rent were paid, on 19-4-1960, according to the petitioner by himself on behalf of his father Wali Muhammad Khan, the latter died, on 14-5-1960. The petitioner put in an application, on 28/29-6-1960 saying that his father had died and his two sisters who were married, had surrendered their rights in his favour. The P.T.O. May be issued to him. The P.T.O. Was, however, issued in the name of the deceased, on 17-8-1960. For non-payment of the transfer price, the Deputy Settlement Commissioner, Gujranwala cancelled the transfer and placed the house in the compensation pool. This is vide order, dated 30-6-1966. The house was put on the auction list.
The petitioner applied for its deletion. The application was rejected by the Deputy Settlement Commissioner, on 17-4-1967. The petitioner filed an appeal against the order of resumption and rejection of his application for deletion, on 25-4-1967. Respondent No, 1, one of the sisters of the petitioner, also filed an appeal against the order of resumption, dated 30-6-1966 on the ground that an agreement of association had been entered into by Wall Muhammad Khan surrendering his rights in her favour, on 19-4-1960. The appeal was filed on 13-7-1967. An Additional Settlement Commissioner dismissed both' the appeals of the petitioner as well as of the respondent No, 1, on 5-10-1967. Both filed revision petitions. The petitioner's revision was rejected but that of the respondent No, l's regarding the agreement of association with her deceased father having not been considered, the matter was remanded. This is vide, order 8-3-1968. In remand proceedings, on behalf of the respondent No, 1, her attorney and husband appeared. Abdul Karim, petition-writer was examined who had scribed the association deed. Certified copy of the entry in his register was placed on the record as Exti. P. The scribe stated that "Wall Muhammad Khan and Mst. Irshad Begum were present when he wrote the association deed and that the signature of the parties were obtained on the register." The learned Deputy Settlement Commissioner observed that "it has been proved beyond doubt that the agreement of association has executed between Wali Muhammad and Mst. Irshad Begum and was removed from the file by some interested party. The copy of the association deed Exh. 'P' clearly shows that Wali Muhammad surrendered full rights in favour of his real daughter Mst. Irshad Begum. She is, therefore, the transferee of the property according to the terms of the association deed. She is reported to be claimant in her own right and, therefore, the price of the property should be adjusted from her compensation book and the balance if left any should be recovered in cash. Documents already issued in the name of Wali Muhammad should be amended accordingly." This is, vide order, dated 7-6-1968 of the Deputy Settlement Commissioner. The respondent No, 1 was issued P.T.D., on 20-6-1968. The petitioner filed Writ Petition No, 805 of 1968 challenging the order passed by the Settlement authorities regarding cancellation of transfer of the house from the name of Wall Muhammad Khan, rejecting the appeal and revision of the petitioners and accepting the revision petition of Mst. Irshad Begum, respondent No, 1 and the order of the Deputy Settlement Commissioner, dated 7-6-1968 transfering the house in dispute to Mst. Irshad Begum, respondent No, 1 accepting the alleged agreement of association.
It was contended by the learned counsel for the petitioner when the petition came up for hearing, "that the order of the Deputy Settlement Commissioner, dated 7-6-1968 was passed behind the back of the petitioner and the same was, therefore, a nullity in the eye of law." The learned Judge observed that: "It will be noticed that the petitioner was claiming to be the sole legal heir of the deceased Wali Muhammad which claim was rejected by the Settlement Commissioner on the 8th of March, 1958.
The learned officer remanded the case back for deciding the question of agreement of association, referred to above, but there was nothing to show in the said order that the petitioner was prevented from appearing before the Deputy Settlement Commissioner. The order, dated the 7th of June, 1968, shows that the petitioner did not appear before the Deputy Settlement Commissioner. It is not clear whether any notice was sent to the petitioner or not. In any case if he was interested in the alleged agreement of association he could have appeared before the Deputy Settlement Commissioner but he failed to do so. The proper course for the petitioner is to move the Settlement Commissioner in his revisional jurisdiction. At this stage I am not inclined to interfere.
This petition is summarily dismissed." This is, vide order, dated 9-9-1968.
' The petitioner filed a revision petition before the Settlement Commissioner who in a detailed order came to the conclusion that "it is evident that in so far as the claim of respondent No, 1 regarding the execution of the alleged agreement of association in her favour is concerned the learned Deputy Settlement Commissioner has not decided this question after hearing all concerned, including the petitioner and respondent No, 2, who were the heirs of the deceased. It was incumbent on the Deputy Settlement Commissioner to issue notices to them and to afford them an opportunity, of being heard before deciding this question. Similarly the application of the petitioner for appointment as successorin-interest of the deceased has also not been decided according to law. I, therefore, accept the revision petition, set aside the impugned order, dated 7-6-1968, and cancel the transfer documents of the respondent including P.T.D. And remand the case back to the Deputy Settlement Commissioner for deciding these questions on merit according to law, for which the parties should be allowed to adduce evidence if they so desire.' This is vide order, dated 19-2- 1969. The petitioner as well as his two sisters, respondents Nos. 1 and 2 were appointed by the D.S.C.
As successors-in-interest of deceased Wali Muhammad Khan, on 8-9-1969. However, as regards the agreeement of association, the learned Deputy Settlement Commissioner referred to an entry at S. No, 5518, dated 20-4-1960 and taking that as an entry for submission of the agreement of association, came to the conclusion "that the agreement of association executed between Mst.
Irshad Begum and her real father Wali Muhammad, on 19-4-1960 was filed in the office, on 20-4- 1960". He concluded that "it is held that no other successors-in-interest of Wali Muhammad is entitled to its transfer as the property was not available when they became legal heirs, except Mst.
Irshad Begum- in whose favour Wali Muhammad had surrendered his right in the house in his life time and she has made payment in cash of Rs,3,084 on 12-6-1960 after my order of 7-4-1968. She should, however, file four rupees Non-Judicial Stamp (Blank) which should be crossed to make the deficiency." This is vide order, dated 22-12-1969. The petitioner filed an appeal and an Additional Settlement Commissioner came to the conclusion that "I have given my thoughtful consideration to all aspects of the case and also seen the register relied upon by the respondent in support of her claim. The file does not show if any agreement, as alleged, was filed, and that it was approved by the D.S.C. The contents of Exh. 'P' are insufficient and do not fully support the case of Mst. Irshad Begum. Therefore, the present' parties who are real brothers and sisters are the legal heirs of their deceased father Wali Muhammad. The appeal succeeds and is hereby allowed. The order, dated 22-12-1969 is set aside." This is vide order, dated 10-12-1970. Respondent No, 1 filed a revision petition and the Settlement Commissioner observed that "I am of the opinion therefore, that a proper enquiry be held providing full opportunity to the petitioner as well as to the respondent daughter and son of the deceased to put forth their case about the property transferred to their father and a decision on merits taken." This is vide order, dated 14-10-1971. In pursuance thereof, the learned Deputy Settlement Commissioner took up the matter and held that "The net result is that the agreement of association was filed by Wall Muhammad surrendering full rights in favour of his real daughter in the year 1960 and that Abdul Aziz has no claim over the house at that late stage." This is vide order, dated 10-3-1972. The petitioner filed an appeal which was accepted and case was, again, remanded for a fresh decision by Additional Settlement Commissioner, vide order, 19-4- 1976. The Deputy Settlement Commissioner came to the conclusion that "The balance, as a result, dips in the side of respondent No, 1 because after respondent No, 2 having been eliminated by her 'own statement, the dispute remains between the brother and the sister. The petitioner (brother) has no documents in his possession and the respondent No, 1 (sister) have legal support of agreement of association through which rights in the disputed property were surrendered to her by her father, now deceased." He thus allowed the transfer in favour of respondent No, 1 on the basis of the agreement of association. This is vide order, dated 11-12-1976. This has been challenged by the petitioner through the aforetitled Constitutional petition.
2. Learned counsel for the petitioner has contended that the house in dispute was transferred to Walt Muhammad father of the petitioner and of his two sisters, Respondents Nos. 1 and 2. The petitioner's sisters were married. They did not want the house. The petitioner put in an application for the transfer of the house in his favour as the sole heir. Without the decision thereof, the house was resumed and put to auction. It was the petitioner who made efforts for deletion of the house from the auction list. If he had not done so, the house in question would have gone in auction. None would have been any wiser. It is, secondly, contended that the agreement of association relied upon on behalf of respondent No, 1 stated to be executed, on 19-4-1960 is a cooked up story. No such agreement was ever executed, filed, or, approved by the competent authority. The reliance on the deposition of the Petition-writer that such an agreement was executed was inapt and the entry No, 5518 in the Register was a subsequent interpolation. The petitioner himself had paid the rent of the house earlier to the extent of Rs, 13/1/- and, later on 19-4-1960 a sum of Rs,861/6/-. The original receipts are placed on the record by the learned counsel for the petitioner. The certificate of clearance obtained by the respondent Jo. 1 on which an endorsement is that the amount was paid on behalf f respondent No, 1 it is submitted is an interpolation. In any case, the learned counsel for the petitioner submitted that in pursuance, of the agreement of association, admittedly statement of the parties were never recorded, nor, ever the Deputy Settlement Commissioner approved the agreement of association. An agreement of association without recording of statements of the parties and order of the Deputy Settlement Commissioner is of no legal effect. He placed reliance on Mst. Fatima Bibi and 7 others v. Settlement Commissioner, Lahore and 3 others PLD 1973 Note 23 at p. 34 and Haji Abdul Aziz v. Khalil Ahmad and 4 others PLD 1973 Note 47 at p.
63.
3. Learned counsel for the contesting respondents No, 1 has vehemently contended that the petitioner has no locus standi to maintain this Constitutional petition because the order of resumption of the house from the name of Wail Muhammad, of the Deputy Settlement Commissioner, dated 30-6-1965 was not challenged by the petitioner. Secondly, that when the petitioner's revision was rejected by the Settlement Commissioner on 8-3-1968, the petitioner did .Not challenge the order any further. It was thirdly contended that the petition is liable to be dismissed for the reason that the petitioner has not come to this Court with clean hands as he has made a misstatement in para. 3 of the petition that he had paid the rent, whereas, the certificate of clearance of rent has been issued in favour of the respondent No, 1 wherein the endorsement is that that had been done on behalf of respondent No,
1. Lastly, it was contended that the non- recording of the statements of the parties, especially when the executant of agreement of association had died soon after the agreement of association, or, non-approval of the agreement of association by the Deputy Settlement commissioner are the acts or omissions of public functionaries and the answering respondent cannot be made to suffer. He has placed reliance, on Mian Irshad Ali v. Government of Pakistan through Secretary, Ministry of Rehabilitation, Islamabad and 1.3 others PLD 1975 Lah. 7 at p.11.
4. I have heard the learned counsel for the parties at length and perused the record with their assistance. The attorney and the husband of the respondent No, 1 has been present in Court. On question, he stated that the said respondent, his wife has got a shop transferred in her name through an agreement of association and also she has got a house transferred in her favour in which she is residing. The house in dispute she is claiming under the agreement of association from her father in her favour, leaving out her brother the petitioner who is in possession of the house and has been living alongwith his father and the second sister, respondent No,
2. The second point to be noted is that it is an established law per instructions on the point and precedents that an agreement of association before it can be given effect to requires that the statements of the parties to the agreement shall be recorded and an order shall be passed by the Deputy Settlement Commissioner approving the agreement of association. The first case in the field is Mirza Salauddin Maud v. Settlement and Rehabilitation Commissioner, Lahore and another 1970 Law Notes 92 and, then, there are number of judgments to the same effect, the one quoted by the learned counsel for the petitioner and Fazalusshafi v. Chief Settlement Commissioner, West Pakistan Lahore and 12 others PLD 1973 Note 39 at p. 52 and Hafizan Begum, etc. v. Deputy Settlement Commissioner etc. It is undisputed position that neither the statements of the parties to the agreement of association were ever recorded by the Deputy Settlement Commissioner, nor had he passed any order approving the same. In the absence thereof, it cannot be said that the transferee Wall Muhammad had surrendered all his rights, excluding his own son and a daughter, and had given the house to the respondent No, 1 alone who is married and settled in her own house which stands transferred to her alongwith a shop.
5. As regards the contention of the learned counsel for respondent No, 1 that the petitioner has no locus standi because he had not challenged the order of resumption of the house, dated 30-6- 1966, that is not correct because a perusal of the appeal of the petitioner (Annexure 'G') filed before the Additional Settlement Commissioner would show that in ground (iii) of the appeal, as well as, in the prayer clause, the order of resumption was challenged alongwith the order of rejection of his application for deletion of the house from the auction list. As regards the second contention that the petitioner never challenged the order of Settlement Commissioner rejecting his revision petition, on 8-3-1963, it is to be noticed that in pursuance of that, the Deputy Settlement Commissioner had passed an order on 7-6-1968 and the petitioner had challenged all the orders in his Writ Petition No, 805-R of 1968 which was though dismissed but it was observed that since the petitioner had not been heard by the Deputy Settlement Commissioner in the remand proceedings before the order, dated 7-6-1968 was passed, the proper course for the petitioner was to move the Settlement Commissioner in his revisional jurisdiction, which the petitioner did and his revision petition was accepted by the Settlement Commissioner, on 19-2-1969, whereafter the proceedings continued before the various authorities until the last impugned order was passed on 11-12-1976.
Therefore, it cannot be said that the petitioner is debarred to challenge the last impugned order. As regards the third contention that the petitioner has not come to Court with clean hands as in para. 3 of the petition he has said that he had cleared the arrears of rent, she seems to be on the other foot for the reason that the petitioner has produced the receipt for payment of arrears of rent of Rs,861 in original. Certificate of clearance of rent which has an endorsement that that was paid by the husband of respondent No, 1, seems to be not according to the facts because if it were so, the receipt should be with the respondent No, 1 and not with the petitioner as it has been and is placed on record. The contention that for the actions or omissions of public functionaries, the parties cannot be made to suffer, it need only be said that it cannot be urged in the circumstances, that the public functionaries were in default because if the agreement of association had been executed, on 19-4-1960, it should have been placed before the authorities straight away, or, action should have been sought thereon within the next six years. It was only when the house was being put to auction and the petitioner was trying to get it deleted from the auction list, that the respondent No, 1 came forward on 13-7-1967 claiming transfer in her favour under the agreement of association. Another contention that after the issuance of P.T.D., the Settlement Authorities had become functus officio it need only be said that the P.T.D. Was cancelled by the Settlement Commissioner, on 19-2-1969 and this order was not challenged by respondent No, 1 in any further proceedings before an appropriate forum. Rather, the respondent No, 1 continued to participate in the proceedings until 1976 when the last impugned order was passed. A word may also be said about the agreement of association. To prove this, reliance has been placed on the statement of petition-writer and an entry at S. No, 5518 in the Register. Also on the clearance certificate. About the latter something has already been said. The deposition of the petition-writer and the entry No, 5518, besides that these can be procured at any stage and there has been an over-writing in the register relating to the entry in question, at best can show that an agreement of association was executed. As stated above, on agreement of association is not effective unless statements of the parties are recorded and the agreement of association is approved by a Deputy Settlement Commissioner. Admittedly nothing of the kind was done. Secondly, the contention that soon after the agreement of association, dated 19-4-1960, Wail Muhammad died, on 14-5-1960, therefore, statement of his could not be recorded, if true, the respondent would have, in normal course of human behaviour; applied to the Deputy Settlement Commissioner for taking up the matter within reasonable time. If she had, the agreement of association would have been there or even if had been lost or removed, she could have led evidence regarding the factum of execution of the agreement by producing marginal witnesses and the attesting official required under the law to authenticate the same. The Deputy Settlement Commissioner would have been in a position to see whether the agreement of association was executed and was he to approve the same. The respondent No, 1 did not come forward to say that the deceased transferee had executed any agreement of association surrendering all his rights in her favour excluding her brother and a sister until seven years later. If her brother the petitioner had not struggled to get the house out of the auction list, it might have gone to anybody else. The submission made by the learned counsel for the respondent No, 1 at the fag end of the arguments that if the agreement of association accepted by the Deputy Settlement Commissioner vide the impugned order not found to be efficacious, the case should be remanded for fresh decision allowing the parties to produce their evidence regarding the execution of agreement of association and for its approval. The litigation has been going on for 25 years by now and all the evidence which the respondent could produce was produced and it was said by her attorney, on 8-7-1976 that besides the documents already produced, he did not want to produce any more evidence, no useful purpose in the circumstances would be served by remitting the case for fresh decision. The respondent No, 1 has already been transferred a shop and a house. She cannot legitimately ask for the transfer of the house in question in which her father lived alongwith his son, the petitioner and throw him out on the streets, as well as, deprive her other sister of her inheritance for the benefit of the one, the respondent. No, 1 who is already settled and has a house as well as a shop tansferred in her name. In these circumstances, it is not quite just or right to remand the case and to prolong the agony of litigation.
The impugned order is clearly without lawful authority and of no legal effect. It is so declared. The house transferred to Wall Muhammad shall devolve on all his heirs, the son, the petitioner and his two daughters the respondent No, I. As well as respondent No,
2. The petition is thus allowed but in the circumstances, the parties are left to bear their own costs.