' A house situated in Nowshera Cantonment is the bone of contention between the parties. There has been protracted litigation between the predecessor-in-interest of the petitioner and the predecessor of the respondents on this house. The confusion was created in respect of number of the house and not about its identity, as each party was claiming the same house to be his property. The contest between the parties now is whether house bearing custodian No. 896/897 is the same house which in the Cantonment record is represented by No. 895/2-6, or both these houses are separate and independent units, having been independently transferred to the predecessor-in-title of the petitioner and predecessor of the respondents. The petitioner's claim is that both these numbers relate to the same house which had been transferred by the Settlement Department to Muhammad Hamid, her predecessor-in-title, and that Ghulam Muhammad had no concern with it. The plea of the respondents, on the other hand, is that house bearing Custodian No. 896/897 and house bearing No. 895/2-6 are two distinct and separate houses, the former having been transferred in favour of the predecessor-in-title of the petitioner, and the latter having been transferred in favour of their predecessor. The unhappy situation as obtaining at the time of institution of the suit, out of which this revision petition arises, was that house bearing Custodian No. 896/897, Nowshera Cantt., having been placed in the earmarking scheme, had been drawn in favour of Muhammad Hamid, the predecessor-in-title of the petitioner. P.T.O. In respect thereof followed by P.T.D. Was issued in his favour. Thereupon Ghulam Muhammad, the predecessor of the respondents, had approached the Settlement Commissioner in revision and after identifying this house with house bearing No. 895/2-6, which was alleged to be in his possession, he urged that it had illegally been placed in earmarking scheme and transferred to Muhammad Hamid. The Settlement Commissioner, by his order, dated 1-5-1962, accepted that revision petition and upheld the right of Ghulam Muhammad. However, despite efforts made but for reasons attributable to him also, Ghulam Muhammad could not succeed in getting the order of the Settlement Commissioner, passed in his favour on 1-5-1962, implemented and the house transferred in his favour, as in the meantime, both on settlement and civil side, litigation between the then parties, the predecessor- intitle of the petitioner being the contestant, ended against him. His successors, present respondents, however, did not lose heart and eventually, after succeeding in securing some favourable points in the order, dated 17-3-1973 made by the Deputy Settlement Commissioner but failing to obtain allotment order of the house from him, succeeded in obtaining a favourable order, dated 25-5-1974 from the Settlement Commissioner for allotment of House No. 895/2-6 in their favour on payment of transfer price and other dues. By the same order, Settlement Commissioner directed that Permanent Transfer Deed issued to Muhammad Hamid be amended accordingly.
Since this order against the petitioner herein was made ex parte, she applied to the Settlement Commissioner for setting it- aside, which application was rejected on 6-10-1976. Thereafter, petitioner instituted in civil Court a suit for declaration to the effect that house bearing No. 895/2- 6/896/897, situated on Cavalary Road, Nowshera, had been validly purchased by her from Muhammad Hamid in whose favour it had validly been transferred by the Settlement Department and that the property which was identified with No. 895/2-6 was the same property which was represented by Custodian No. 896/897 and had been placed in earmarking scheme and had rightly been transferred to Muhammad Hamid defendant and that neither their predecessor nor defendants 5 to 20 were the owners thereof. In the plaint, reference was also made to the protracted litigation which had taken place on earlier occasions between the parties respecting this house. The suit was contested by defendants Nos. 5 to 7, 10, 16 to 18 who in their joint written statement, besides raising legal pleas, on facts stated that House No. 895/2-6 was a different property which had not been transferred by any P.T.O. Or P.T.D. In favour of Muhammad Hamid defendant and that only shop bearing No. 896/897 had been transferred to him through P.T.O. And P.T.D. Issued in his favour and that the same property had been transferred by Muhammad Hamid defendant in favour of the plaintiff. The learned trial Judge framed following issues in the case:-
(1) Whether the plaintiff has a cause of action?
(2) Whether the plaintiff is estopped by her conduct to sue?
(3) Whether this Court has jurisdiction to entertain the suit?
(4) Whether the suit is barred by res judicata?
(5) Whether the suit is bad for misjoinder of parties?
(6) Whether the suit is bad for non-joinder of necessary parties?
(7) Whether the plaintiff is the owner of the suit property?
(8) Whether the rights of the plaintiff are protected under section 41 of T.P. Act?
(9) Relief.
2. On conclusion of the proceedings, the learned trial Judge, holding that House No. 896/897 and House No. 895/2-6 were two independent and separate units and there was not in existence any P.T.O. Or P.T.D. Relating to the transfer of House No. 895/2-6 in favour of Muhammad Hamid and the plaintiff had, therefore, not purchased that house from him, vide his judgment and decree, dated 18-6-1984, dismissed the suit with costs. The plaintiff (petitioner herein) went up in appeal to the Court of Additional District Judge, who, vide his judgment and decree, dated 21-1-1985, while agreeing with the findings of the learned trial Judge, dismissed the same, as also the cross- objections which were filed before him by the contesting defendants, it is against the said decree of the learned Additional District Judge that the plaintiff has filed this revision petition.
3. Mr. N.M. Khan, Advocate appeared on behalf of the petitioner, Arbab Jamshed Ahmed Khan, Advocate appeared on behalf of the respondents 1 to 4 and Mr. Muhammad Yunas, Advocate appeared on behalf of the respondent No.5. They were heard and with their assistance the record of the case was perused.
4. In his contentions before me the learned counsel for the petitioner not only attacked the findings of the two Courts below on the ground of the same being the result of misreading and non-reading of material evidence brought on record, but also attacked the decision given by the Settlement Commissioner on 25-5-1974, which was impugned in the suit out of which this revision petition arises, on the ground of having been made without having jurisdiction in the matter and also being in utter disregard of the earlier decisions, which had become final, of competent forums on the point that house bearing No. 896/897 and house bearing No. 895/2 was infact one and the same house and not distinct and separate units. The learned counsel contended, while tracing the history of the suit house as far back as the year 1962, that house bearing Custodian No. 896/897 was palced in the earmarking scheme and was drawn in favour of Muhammad Hamid respondent, in whose favour P.T.O. Followed by a P.T.D., dated 24-8-1963 was issued. He contended that after the P.T.D. In respect of the disputed house had been issued in favour of Muhammad Hamid, the Settlement Authorities had become functus officio and thereafter they could not make any order in respect of that house, having no jurisdiction left with them in the matter. His contention was that even since the deletion of rules 6 and 7 from the Permanent Transfer Rules, respectively from the 2nd March, 1964 and the 27th December, 1964, such transfers could not be set aside by the Settlement Authorities even on the ground of fraud. The learned counsel contended that on all earlier occasions, before the Settlement Authorities as well as before the civil Court, the stand of the predecessor of the respondents was that they suit house could not have been transferred to Muhammad Hamid, the predecessor-in-title of the petitioner, and that he was entitled to have it transferred in his favour, which would clearly mean that there was only one house in existence, the identity of which was not in dispute, respecting which the parties were putting forward their claims and while so doing different numbers were being mentioned by them relating to the same house.
Both on settlement side and civil side, the learned counsel contended, the predecessor-in-title of the petitioner and the predecessor respondents had litigated in respect of the suit house and it has never been the claim of the predecessor of the respondents that what had been transferred in favour of the predecessor-in-title of the petitioner, bearing No. 896/897, was a shop and not a house and even in this litigation it has not been so claimed when the evidence led by the respondents is kept in view. The learned counsel argued that the report of the Deputy Settlement Commissioner to the effect that what had been transferred in favour of the predecessor-in-title of the petitioner, bearing No. 896/897, was a shop was not only factually incorrect, but was contrary even to P.T.O. And P.T.D. And all earlier decisions made by competent forums/Courts in that regard.
He urged that there was available on the record the judgment on civil and settlement side, given by Settlement Commissioner and the District Judge, that house bearing Custodian No. 896/897 was the same house which was marked by the Cantonment authorities with No. 895/2 and that these judgments had become final between the parties from whom the present parties derive title and this question could not have been re-opened by any party before any authority or Court. The two Courts below, the learned counsel contended, failed to take note of these judgments and other documentary evidence available on the record and for that reason findings reached by them, being factually and legally incorrect, being the result of misreading and- non-reading of evidence and being in violation of the principles of estoppel and res judicata were liable to be set aside. As respects the impugned order of the Settlement Commissioner, the learned counsel contended that it, being without jurisdiction, was void and neffective. Further, it had been obtained without petitioner having been impleaded party to the proceedings and despite the fact that this error was patent on the face of the record that the petitioner's name did not appear in the person who were made party before the Settlement Commissioner who passed the impugned order, the order was not set aside and the application made by the petitioner in that regard wrongly rejected.
5. The learned counsel for the respondents argued that there was available on the record first order of the 1st May, 1962 passed by the Settlement Commissioner in favour of the predecessor of the respondents and that the same related to House No. 895/2 and not regarding No. 896/897, which was a separate unit. He contended that what the Settlement Commissioner has done in the year 1974 through the impugned order was that he implemented, in letter and spirit, the earlier order which had been made by the Settlement Commissioner on the 1st May, 1962. He contended that the question whether House No. 895/2 and Custodian No. 896/897 was a single unit, or were two separate units, was to be determined by the Settlement authorities and by no other authority, and having been so done, the order made by the Settlement Commissioner in the year 1974 could not be challenged in a civil suit. The learned counsel contended that the concurrent findings of fact reached by the two Courts below has the support of evidence brought on record and could not be re-opened in revisional jurisdiction.
6. I have given my anxious consideration to the arguments addressed by the learned counsel for the parties, in the light of thg material brought on record, and I find much substance in the arguments of the learned counsel for the petitioner. The point to be determined in this case is whether House No. 896/897 and House No. 895/2 are two distinct and independent units, or both these numbers pertain to one and the same house. By order, dated 25-5-1974, Settlement Commissioner, Peshawar has directed transfer of House No. 895/2 to the respondents, treating it a separate unit from Custodian No. 896/897 which he has held to be a shop which already stood transerred to the predecessor-intitle of the petitioner. He has based his order on the report, dated 17-3-1973 of the Deputy Settlement Commissioner, Peshawar, wherein for the first time property bearing No. 896/897 has been mentioned to be a shop and not a house. Never before Property No. 896/897 was treated to be a shop by the Custodian or Cantonment authorities, nor even by the parties under whose title the present parties are litigating. Right from the year 1961, when P.T.O. In respect of Property No. 896/897 was issued in favour of Muhammad Hamid, it was being treated as a house and this entry was repeated in P.T.D., dated 24-8-1963 (Exh.P.W.1/2). It was in the earmarking scheme that this house was drawn in favour of Muhammad Hamid, who after making payment of price, therefore, obtained in his favour, from the Settlement authorities, a P.T.O. And a P.T.D. In respect thereof. Even in the Settlement Commissioner's order, dated 1-5-1962, which, in fact, became basis for allotment of the disputed house to respondents through the impugned order of the Settlement Commissioner, it was mentioned as a house, transfer whereof in favour of Muhammad Hamid was then challenged by the predecessor of the respondents, who had then claimed that it could not have been placed in earmarking scheme and that he being in possession thereof as a refugee from Kashmir was entitled to get it transferred in his favour. Later in the year 1965, in the controversy between predecessor of the respondents and the predecessor-in-title of the petitioner in respect of this house and on the point whether the house bearing Custodian No. 896/897 was the same house which was numbered by the Cantonment authorities as 895/2-6, the Settlement Commissioner had given decision on 20-1-1965 in favour of the predecessor-in-title of the petitioner and also to the effect that both the said numbers related to one and the same house and that there was no dispute between the parties on the identity of this house. The copy of this order is Exh. P.W.1/5. Similarly, on the same day the same Presiding Officer (Mr. Shafi-ur-Rehman now Hon'ble Judge of the Supreme Court) in his capacity as District Judge, Peshawar decided civil appeal filed by the predecessor of the respondents against him on the ground that house bearing Custodian No. 896/897 and house bearing Cantonment No.895/2 was in fact one and the same house, and having been permanently transferred in favour of the predecessor-in-title of the petitioner in the earmarking scheme could not be decreed in favour of the predecessor of the respondents. The copy of this judgment on the record in Exh. P.W.1/6. The copy Exh. P.W.1/7 of order dated 18-3-1970 made in appeal by the Additional Settlement Commissioner would also show that Muhammad Yunas respondent had been refused relief in respect of the same house as against Muhammad Hamid, the predecessor-in-title of the petitioner. The litigation on criminal side between the parties related to the same house and had ended in High Court copy Exh.P.X.1/1 against the respondents. All this evidence was available on the record and strangely enough both the learned Courts below failed to take note of it. On the question whether both the said numbers related to one and the same house, there is available on the record on Settlement side the order of the Settlement Commissioner and on civil side the judgment of the District Judge, already referred to, which had become final between the parties from whom parties now litigating derive title, and in presence of these decisions that question could not be re-opened by any other authority and certainly not by civil Court, as has been done here. Both the Courts below by not reading this evidence fell into error in coming to a conclusion which was not warranted by law and facts.
7. As respects order dated 25-5-1974 made by the Settlement Commissioner, Peshawar, it also suffered from the same error, as also the jurisdiction defect. After the house in dispute had been permanent) transferred, through a P.T.D. Referred to above, in favour of the predecessor-in-title of the petitioner, the Settlement authorities, havin become functus officio, had no jurisdiction left in the year 1974 to make an order transferring that very house in favour of the respondents and amending the Permanent Transfer Deed, which had been issued in the year 1963 in respect of that very house, issued in favour of Muhammad Hamid, the predecessor-in-title of the petitioner. Since the house after such transfer had gone out of the compensation pool, the Settlement authorities had no jurisdiction to make the order impugned in the suit. The order, dated 25-5-1974 made by the Settlement Commissioner was, therefore, a nullity in the eye of law. Mst. Aziz Fatima and others' case 1976 SC MR 95, Haji Faizul Haque Khan's case 1976 SCMR 429, Chaudhary Abdul Haque's case 1982 SCMR 1103 and A.Hamid's case PLD 1979 Pesh. 56 are authorities on the point.
8. For the aforesaid reason, while accepting this revision petition, l hereby set aside the judgments and decree of the learned two Courts 3elow and grant to the petitioner-plaintiff the decree claimed by her, with costs throughout.