1. NASIM HASAN SHAHJ.--The bone of contention between the parties is a house bearing No. 2-31/19 situated at Hari Krishan Street, Quetta. This house was in occupation of Abdul Hamid (respondent No. 3) and his wife Mst. Razia Khanum (respondent No. 2). Abdul Hamid is admittedly a local but his wife Mst. Razia Khanum claims to be a displaced person from Jammu and Kashmir. The main issue in disputes between the parties have been as to whether respondent No.2 had ever submitted any form for the transfer of this house and if so, if she indeed is a displaced person from Jammu & Kashmir and thus entitled to the transfer of the house.
2. At the outset the Settlement Department considering that no form for transfer was submitted by the occupants of the house included it in the list of house liable to be disposed of through earmarking. The petitioner, who is a displaced person and was not transferred any house, had applied for the transfer of one house under the earmarking process. This house fell to his lot and he was informed accordingly on 24-12-1959. But his joy was only short lived because on 1-7-1960, the Deputy Settlement Commissioner again informed him that the transfer of the said house had been cancelled and the same was being transferred to respondent No. 2. The parties have been locked in litigation ever since.
3. The above-mentioned decision, communicated to the petitioner on 1-7-1960, was firstly scrutinised by the Settlement Commissioner, Quetta. By his order, dated 13-5-1964 he, however, upheld the transfer of the house in favour of respondent No. 2. The petitioner thereupon challenged the said order by filing a writ petition (W.P. No. 9 of 1965) before the erstwhile High Court of West Pakistan, Quetta Circuit, which was accepted by the order of a learned Single Judge of the said Court passed on 8-10-1968 at Quetta and the case remanded by him to the Deputy Settlement Commissioner to determine the entitlement of the petitioner vis-a-vis respondent No. 2 with reference to four questions formulated in his order.
4. On remand, the Deputy Settlement Commissioner vide order, dated 5-4-1969 found that no form for transfer was filed either by respondent No. 2 or respondent No. 3 and further that Mst. Razia Khanum, respondent No. 2, was local and not a displaced person. He, therefore, restored the transfer of the house in favour of the petitioner. But on appeal by the respondents this order was set aside by the Additional Member, Board of Revenue, Baluchistan, Quetta, vide order, dated 2-11- 1975 and Mst. Razia Khanum, respondent No. 2, was held to be the rightful transferee of the house.
5. The petitioner again challenged the said order before the High Court, through a constitutional petition (C.P. No. 225 of 1975). This was accepted on the short ground that the Additional Member, Board of Revenue, Baluchistan, Quetta, had not been vested with the powers of the Settlement Commissioner and the case was remanded back for disposal by a competent authority vide order, dated 24-3-1980. Therefore, the matter came up on 30-6-1980 before the learned Member, Board of Revenue, Baluchistan, Quetta who also set aside the order of the Deputy Settlement Commissioner, dated 5-4-1969 and held that Mst. Razia Khanum, respondent No. 2 was the rightful transferee as she had filed a form for transfer of the disputed house and that she was a displaced person from Jammu and Kashmir. The last mentioned order, dated 30-6-1980 was challenged again in the High Court by a constitutional petition (C.P. No. 246 of 1980) and the High Court was thus called upon, for the third time, to deal with this dispute.
6. The constitutional petition was heard by a Division. Bench consisting of Mr. Justice Ajmal Mian, Acting Chief Justice and Mr. Justice Mir Hazar Khan Khoso. Both the learned Judges wrote separate orders. Mr. Justice Mir Hazar Khan Khoso in a detailed judgment upheld the findings of the learned Member, Board of Revenue, Quetta, to the effect that Mst. Razia Khanum, respondent No. 2, had filed a form for transfer of the disputed house and that she was a displaced person from Jammu and Khashmir. Mr. Justice Ajmal Mian, in his shorter judgment, while agreeing with his brother Judge that the constitutional petition was liable to dismissal proceeded to observe that although the four points formulated by learned Single Judge in his order of remand, dated 8-10-1968 had not been disposed of very properly because the findings in the earlier orders which had been set aside had been relied upon while deciding the case but nonetheless, the order in favour of the respondents could be sustained on the basis of the following indisputable material:--
(a) The entry in the CSC-IV Register indicating that respondent No. 2 had filed NCH form; and
(b) A receipt dated 15th July, 1959 issued by the Deputy Settlement Commissioner, Quetta Kalat Region acknowledging the receipt of the two copies of the applications on NCH form of respondent No. 2.
7. He further noted that respondents Nos. 2 and 3 were occupants of the house whereas, the petitioner came to acquire an interest therein merely through the draw of lots for the first time on 24-12-1959 and the said transfer, too, was cancelled on 1-7-1960. Moreover, the petitioner in his constitutional petition had not challenged the transfer order in favour of respondent No. 2 nor the P.T.D. (which was issued in her favour on 11-8-1980). Both the Judges thus, for different reasons, agreed that the constitutional petition was liable to dismissal. This was ordered accordingly vide judgment, dated 21-12-1965. This petition for leave to appeal is directed against the aforesaid judgment.
8. We have heard Mr. Muhammad Arif, learned counsel for the petitioner, in support of this petition at some length.
9. We note that respondent No. 3 was allotted this house in 1948 and he and his family have been living therein for the last 36 years. The petitioner was found entitled to the transfer of this house solely on account of his success in the earmarking scheme but has not otherwise any interest therein and has not been in possession of the house for a single day. More importantly there was some evidence on the basis of which, it could be held that house was wrongly included in the earmarking scheme inasmuch as a form for its transfer was filed on 15-7-1959 by respondent No. 2 and in its presence the property could not be included in the earmarking scheme and it was thus not available for transfer through the earmarking process. We, therefore, feel that the transfer of the house in favour of respondent No. 2 cannot be assailed and no interference in the impugned order passed by the High Court is called for.
10. The result is that this petition fails and is dismissed hereby.