' The petitioner, Mst. Hajan Kalsoom Akhtar, wife of Muhammad Bashir, has challenged the vires of the order, dated 8-11-1975, passed by the Deputy Settlement Commissioner-III, Faridkot House, Lahore, whereby it was held by the said officer that portion 'B' of property No.G/846 is in possession of Muhammad Bashir and that he has amalgamated the same with property No.G/829.
2. The brief facts of the case, as stated by the petitioner, are that property bearing No.G/829 situate at Kucha Mutsaddimal, inside Sheranwala Gate, Lahore, was owned by Shiv Ramdas, who at the time of his migration from Lahore in 1947, gave the possession of the house to the husband of the present petitionr. Later on, the said house was allotted to the husband of the petitioner Muhammad Bashir by the Rehabilitation Authorities on 20-2-1948. The house of the petitioner was built over an area of 460 sq. Feet bearing Khasra No.6954. In the neighbourhood of the petitioner's house, there is another House No.G/846, which house was owned by Lala Amar Nath, evacuee, and the same house was built over Khasra No.6955 and its covered area is about 203 sq.Feet. This evacuee- owner also at the time of his migration gave the possession of the said house to the husband of the petitioner.
' During 1949, one Muhammad Sadiq got a portion of the House No.G/846 from the petitioner's husband on temporary basis. However, later on, the aforesaid Muhammad Sadiq got the transfer of half of House No.G/846 on his application form. The petitioner's husband did not challenge the transfer of the aforesaid half portion of the house to Muhammad Sadiq and as such, the transfer went unchallenged. On the introduction of Settlement Scheme No. VIII, House No.G/829 was transferred by the Deputy Settlement Commissioner to the husband of the petitioner on 21-10-1972.
However, the husband of the petitioner, by means of an agreement of association, which agreement was duly approved by the Deputy Settlement Commissioner, Lahore, transferred the said house to the petitioner on 25-11-1972. The present petitioner paid the entire transfer price and accordingly the Permanent Transfer Deed was also issued to the petitioner in 1972 and a copy of the said P.T.D. Has been placed on record as Annexure 'A'.
3. As stated earlier, half of House No.G/846 was transferred to one Muhammad Sadiq on his form, whereas rest half of the said house was auctioned and was purchased by Muhammad Akhtar, respondent No.2, and accordingly the auction was confirmed on 20-6-1975. After the purchase of the house in open auction, respondent No.2 made an application before respondent No.1 for the demarcation of the property purchased by him in auction. The Deputy Settlement Commissioner in his impugned order held that a portion of House No.G/846 has been amalgamated by the petitioner as mentioned earlier.
4. Mr. C.M. Latif Rawn, the learned counsel for the petitioner, has vehemently argued before me that House No.G/829 is an independent and self-contained house, which has been transferred finally to the petitioner and a P.T.D. Has been issued to her, thereby conferring upon her the rights of ownership. It is next contended by learned counsel for the petitioner that the house owned and possessed by the petitioner has an area of 460 Sq. Feet over Khasra No.6954. The petitioner has placed heavy reliance upon Annexure 'A', copy of P.T.D., Annexure 'C', a notice regarding assessm ent of house tax, Annexure 'D', an order of assessment passed by the Assessing Authority, Annexure 'E', Aks Shajra showing the actual position of the two properties namely, House No.G/829 and House No.G/846 at the spot, Annexure 'F', again a notice of assessment pertaining to House No.G/846 and Annexure 'G' pertaining to assessment order of House No.G/846. To the same effect are Annexures 'H' and which are the extracts from the Lahore Municipal Corporation relating to the period before 14th August, 1947. These documents speak in detail about the areas of both the houses in question. On the basis of these documents, learned counsel forcefully contended before me that respondent No.1 possessed no jurisdiction whatsoever to pass the impugned order, inasmuch as House No.G/829 with Khasra No.6954 over an area of 460 Sq. Feet finally stood transferred to the petitioner by the competent Settlement Authority. This was precisely the case before the Deputy Settlement Commissioner that the petitioner was not claiming any portion of House No.G/846. It is pointed out that to that effect the learned counsel for the petitioner has made a clear statement before this Court saying that the petitioner is the transferee of House No.G/829, Kucha Mutasaddimal, inside Sheranwala Gate, Lahore, bearing Khasra No.6954 and she is in possession of the said house today and further that she has got nothing to do with House No.G/846 (both portions A and B). The learned counsel also places reliance on S. Anwar Hussain Sani v.
Sarfraz Ahmad etc. PLD 1971 SC 669; Chaudhry Abdul Haque v. Mst. Mustajab Bano etc. 1982 SC MR 1103; Girdharilal etc. v. Settlement Commissioner etc. 1974 SCMR 474 and Muhammad Shafi v. Mauj Din Khan etc. PLD 1976 Lah. 17 in support of his contention that after the issuance of P.T.D.
Respondent No.1 became functus officio and was not at all competent to pass the impugned order.
Mr Abdul Majid Khan, learned counsel for respondent No.2, has submitted that the writ-petitioner has encroached upon the portion of House No.G/846 and has amalgamated the said portion into his own house namely, G/829. On the basis of this, the learned counsel has submitted that the Deputy Settlement Commissioner had the necessary powers to demarcate the property correctly.
It is next contended by learned counsel that respondent No.2 was an auction-purchaser from the Settlement Department for valuable consideration and as such, respondent No.2, the vendee, has the legal right to ask from the vendor, the Settlement Department, as to what property had been sold in his favour. It is stated that the proposition that the Settlement Authority had become functus officio, is not correct in the eyes of law. The learned counsel maintains that the Deputy Settlement Commissioner, respondent No.1, has considered the entire evidence produced by both the parties and has given a finding of fact which finding of fact cannot be interfered with in the exercise of extraordinary Constitutional jurisdiction. The learned counsel submitted that an alternate remedy by way of a civil suit was available to the writ petitioner and indeed this is the function of the competent civil Court to find out on the basis of evidence whether a portion of House No.G/846 had been encroached upon and in fact amalgamated by the writ petitioner in her House No.G/829. This function could not be performed by the High Court in the exercise of writ jurisdiction. The contention of learned counsel for respondent No.2 that the finding of fact given by the Deputy Settlement Commissioner that portion 'B' of House No.G/846 has been encroached upon and amalgamated by the petitioner in her house is not tenable in view of the voluminous evidence produced and relied upon by the petitioner as stated above. If the finding of fact is not supported by the evidence on record it is always open to challenge and such finding of fact cannot be declared immune from judicial scrutiny. I am satisfied that the Deputy Settlement Commissioner has arbitrarily proceeded in the case to hold that the petitioner had encroached upon a portion of House No.G/846. The documentary evidence discussed above, was available before the Deputy Settlement Commissioner and learned counsel for the petitioner has submitted before me that he argued on the basis of documentary evidence before the Deputy Settlement Commissioner but he has failed to consider this important aspect of the case. Therefore, I am of the definite view that where material evidence has not been considered or material evidence has been misread, such like findings are always open to interference. I accordingly overrule the objection of learned counsel for respondent No.2. The other contention of learned counsel was that the respondent has purchased in open auction portion 'B' of House No.G/846 and has paid the transfer price to the Settlement Department. He, therefore, was the owner of the said portion of the property in question.
It was maintained by the learned counsel that it was the duty of the Settlement Department to locate and demaarcte the auctioned evacuee property. In view of this position, the order dated 8- 11-1975 passed by the Deputy Settlement Commissioner was well grounded and no exception could be taken thereto.
' This is true that the vendor is duty bound to tell the vendee the property actually sold to him.
However, it was for respondent No.2 to have adopted due care and caution and should have seen the property placed in the auction pool before participating in the auction proceedings. Certainly the Deputy Settlement Commissioner was not competent to locate the auctioned property in the house of the petitioner which house had finally been transferred by the Settlement Department to the petitioner. There is, therefore, no force in the contention of learned counsel for the respondent No.2 which is accordingly repelled.
5. I have heard learned counsel for the parties and have gone through the record very carefully. I find considerable force in the argument of learned counsel for the petitioner that House No.G/829 bearing Khasra No.6954 over an area of 460 Sq. Feet was a complete and self-contained house even before 14th August, 1947, and, therefore, the petitioner is entitled to the transfer of the said house in its entirety. This contention is supported by the pre-partition record relied upon by the petitioner. Annexure 'D' is an assessm ent order showing that the area of House No.G/829 is 460 Sq.
Feet. Similarly Aks Shajra pertaining to the years 1907 and 1908 shows the exact position of both the houses at the spot. With a naked eye, it could be seen that the house of the petitioner is double in area to that of respondent No.2, the other transferee. Another assessment order Annexure 'G' pertaining to House No.G/846 shows the area of this house as 203 Sq. Feet and this very house is admittedly built over Khasra No.6955. To the same effect are the documents marked as Annexures 'H' and which documents are the extracts from the record of Lahore Municipal Corporation pertaining to the pre-partition days. The learned Deputy Settlement Commissioner while passing the impugned order dated 8-11-1975, has failed to consider this most important documentary evidence produced and relied upon by the petitioner. Respondent No.2 could not in any way rebut this documentary evidence and no counter-evidence had been produced or relied upon by respondent No.2.
6. I, therefore, have come to a positive conclusion that the petitioner is the transferee and as such, owner of House No.G/829 with an area of 460 Sq. Feet over Khasra No.6954.
7. However, House No.G/846 was a complete house having two independent units namely, portion 'A' and portion 'B'. Portion 'A' was transferred to one Muhammad Sadiq as stated earlier, and portion 'B' of the said house was auctioned and was purchased by respondent No.2. So far as this position of House No.G/846 is concerned, there cannot be possibly any second opinion and this position too has been conceded by learned counsel for the petitioner who has made a statement before this Court. This is true that it is the duty of the vendor Settlement Department, to locate and to tell the vendee which property has been sold. To this extent, I am clear in my mind that function of the Settlement Department cannot be taken away by the mere fact that Permanent Transfer Deed has been issued. It is the duty of the Settlement Department to demarcate the property sold by the Department in favour of the auction-purchaser. This function cannot be performed by the High Court in exercise of writ jurisdiction, inasmuch as the same requires the recording of oral evidence as well as production of the documentary evidence. For this purpose the best forum available to the affected party was to move the civil Court.
8. With the above observation, the upshot of the above discussion is that I accept this writ petition, set aside the impugned order dated 8-11-1975 having been passed without lawful authority and of no legal effect, leaving the parties to bear their own costs.