S.A. NUSRAT, J.--This appeal, by leave of this Court, is from the judgment dated 14-5-1981 of the Sind High Court accepting a Constitutional Petition of the first respondent.
2. The dispute relates to a house bearing No. 979 situated in Sehwani Para, Kotri Town, District Dadu.
The house was transferred to Abdul Rasheed Khan, the predecessor-in-interest of the appellant, on his NCH form on the basis of his possession and Appendix IX for transfer price of Rs.3,024 was issued to him followed by a P.T.O. Dated 4-11-1959. The house was later put to auction on 8-4-1964 and one Nawab Khan's bid for Rs.1,500 was accepted as against the reserve price of Rs.2,880. It was subsequently transferred to the first respondent upon execution of an alleged deed of surrender in his favour of Nawab Khan and P.T.O. Dated 25-8-1964 and P.T.D. Dated 8-3-1965 were issued to him.
Abdul Rasheed Khan died on 21-7-1972 and was succeeded by his only heir Jamil Ahmed Khan.
Jamil Ahmed Khan came to know sometime in 1972 about the transfer of the disputed property to the first respondent arid challenged the cancellation of transfer in favour of his father by filing an appeal .Dated 15-11-1972 which was supported by an application under section 5 of the Limitation Act. The appeal was dismissed on 6-7-1973 by the Additional Settlement Commissioner, Hyderabad Division on the technical ground that he had no jurisdiction in the matter as a P. T . D .
Had been issued in favour of the first respondent. Jamil Ahmed Khan thereupon challenged the said order in revision and the Settlement Commissioner Sind, at Karachi, by his order dated 1.1-2- 1974 after scrutinising the record, set aside the auction, declared the transfer documents issued to the first respondent as invalid, and directed that the property be transferred to the heirs of Abdul Rasheed Khan, the original transferee, and in case the transfer price was not paid within one week of the receipt of notice in this behalf, the P.T.D. Issued to the first respondent shall be resorted.
3. The aforesaid order of the Settlement Commissioner was challenged by the first respondent through a Constitutional Petition in the Sind High Court which was allowed as per impugned judgment.
4. Leave to appeal was granted, inter alia, to examine the contention whether the transfer in favour of the first respondent was valid in the face of a finding of fact reached by the Settlement Commissioner that none of the communications regarding transfer in favour of Abdul Rasheed Khan had reached him and the transfer was cancelled without issuing any notice to him; and whether the property could at all be auctioned without first legally cancelling the transfer thereof in favour of the original transferee.
5. The order of the Settlement Commissioner was set aside by the learned Judge in the High Court on the grounds: that after issuance of a P. T . D. In favour of the first respondent, the Settlement Authority had become functus officio moreso as no proceedings were pending at the relevant time, and that Jamil Ahmed's appeal was time barred as he was aware of the auction since necessary intimation was conveyed to him by the Settlement Authority requiring him to pay the transfer price on pain of cancellation of P.T.O.
6. As regards the plea of limitation, the learned Settlement Commissioner is deemed to have considered the same as would appear from the following excerpt of his order: "As I have mentioned in para. 2 above, there is nothing to indicate that either the transfer documents or any notice of demand or cancellation of transfer were served on the applicant's father, and therefore, the NCH form filed by him was legally pending. Consequently the house in question was not available for auction. There are many applications on record which show that the applicant had been agitating for transfer of the house since 1965. Therefore, the auction even if it is held to be genuine, was not sustainable and is hereby set aside."
By the above finding the allegation contained in the affidavit of Jamil Ahmed Khan filed in support of his application under section 5 of the Limitation Act denying that "no intimation regarding the auction of the property was sent to him" was accepted. In the circumstances, the finding in the impugned judgment that there was no conscious application of mind on the question of limitation by the Settlement Commissioner was not warranted.
7. As regards the legal position, the Appendix IX vide Paragraph 4 thereof provided as under:-- "Please furnish a reply to this Memorandum and produce the above-mentioned documents in my office on . . . . . . . . (date) at. . . . .. . (time) failing which it will be presumed that you agree to the transfer of the aforesaid property to you on payment of the above-mentioned amount in cash which will be recoverable from you in twelve equal monthly instalments. Please note that failure to pay two consecutive instalments will make you liable to ejectment from the property and the outstanding amount will be recoverable as arrears of land revenue."
The insertion of the above paragraph in Appendix IX was in accord with the Settlement Scheme No. I as it stood in 1961 and read as under:--
35. Ejectment for default in paym ent.--If a person to whom the benefit o payment by instalments has been allowed fails to pay the two consecutive instalments, the Deputy Settlement Commissioner shall serve a notice on him requiring him to pay the arrears within thirty days failing which he would be liable to ejectment: Provided that the Deputy Settlement Commissioner may, on application made to him and for reasons to be recorded by him in writing, extend the period upto three months for the clearance of the arrears.
8. It would appear from the above that no power of cancellation of transfer was reserved in terms of the P.T.O. Itself and all that could be done in the event of default in payment of instalments, was to evict the transferee and recover the dues as arrears of land revenue. Further, according to paragraph 36 of the Scheme even a transferee who had committed default in payment of the instalments had a right to move the Deputy Settlement Commissioner for restoration of the property. The transferee of a property thus acquired a vested right to be dealt with in accordance with law and could not be deprived of the property unless the requisite conditions were fulfilled. As found by the learned Settlement Commissioner the disputed house was put to auction without any service of notice upon Abdul Rasheed Khan and hence the property was not available for auction at all and thus neither the auction purchaser nor the first respondent acquired any interest in the property. Accordingly it was futile on the part of the first respondent to urge that after the issuance of the P. T. D. , his transfer was not liable to be cancelled.
9. For the reasons mentioned above, we would set aside the impugned judgment of the learned High Court with the result that the order of the Settlement Commissioner dated 11-2-1974 shall stand restored. The appeal thus succeeds but there will be no order as to costs.