1. NASIM HASAN SHAN, J.-- Three persons, viz. Aziz-ur-Rehman son of Nizamuddin, Muhammad Bashir (the appellant herein) and Mst. Naziran (respondent No.1 herein) are all claiming an evacuee house, situate in Rawalpindi. Aziz-ur-Rehman is in occupation of the said house which he says bears the Property No. G/116-A and claims its transfer under Settlement Scheme No. VIII on the basis of his occupation. On the other hand, Muhammad Bashir (appellant), another aspirant, asserts that this house bears Property No. G/117 and that he is its transferee having purchased it in an open auction, for Rs.14,500 and has been issued P. T .0. No. 551773, dated 5-7-1962 followed by a P.T.D. (though his counsel before us submitted that no P.T.D. Has so far been issued). While Mst.
2. Naziran (respondent No. 1 herein), the third aspirant, submitted that the property number of this very house is G/119 and she is its transferee because her mother, Mst. Azizan, purchased it in open auction and was issued a P.T.O. And then a P.T.D. And as her sole heir she has succeeded to her rights. The common ground that exists between all of the contestants is that the house, which they claim to have been transferred to them or, desire its transfer, is the house occupied by Aziz-ur- Rehman.
3. "Property No. G/117 is a house owned by Lala Bhagat Ram and it is situated just on the back of the 'Nullah' and its present occupant is Aziz-ur-Rehman."
4. Thus the house in dispute was declared to be G/117, which Muhammad Bashir had purchased in open auction.
5. This order was challenged by Mst. Naziran (respondent) by an appeal to the Additional Settlement and Rehabilitation Commissioner. In this appeal it was prayed that the order of the Deputy Settlement Commissioner, dated 3-4-1972 be set aside and the property occupied by Aziz-ur- Rehman be demarcated as G/119, Rawalpindi, because the said house was not G/117 but, in fact, was G/119. This appeal was dismissed on 31-3-1973 on the somewhat incomprehensible ground that it was premature on the reasoning that Mst. Naziran's mother, the actual auction-purchaser, had not got the property demarcated. It was, however, observed by the Additional Settlement Commissioner that Ms. Naziran might seek demarcation of the property purchased by her mother if so advised.
6. Consequently Mst. Naziran moved an application on 7-4-1973, before the Deputy Settlement Commissioner, Rawalpindi, seeking demarcation of the property bearing No. G/119. In this application Aziz-ur-Rehman alone was impleaded as a respondent. The learned Deputy Settlement Commissioner, who dealt with this application, vide order, dated 28-2-1974, arrived at the conclusion that the house in possession of Aziz-ur-Rehman was not G/116-A, as claimed by the latter, but was, in fact, G/119 and was, accordingly, being demarcated as such to the auction- purchaser, Mst. Azizan, which now stood transferred to Mst. Naziran, the daughter of Mst. Azizan, auction-purchaser.
7. This order passed on 28-2-1979 by the Deputy Settlement Commissioner was challenged by two revisions filed before the Settlement and Rehabilitation Commissioner, Rawalpindi; one by Muhammad Bashir (appellant herein) against Mst. Naziran (respondent No. 1 herein) and Aziz-ur- Rehman and the second by Aziz-ur-Rehman against Mst. Nazirap and Muhammad Bashir. Both the revisions were heard together and disposed of by a consolidated order, dated 21-7-1975. The learned Settlement Commissioner observed that since two conflicting orders had been passed by the two Deputy Settlement Commissioners, confusion and complications would be created if both of them remained in the field. Accordingly, both the orders were set aside and the case remanded back to the Deputy Settlement Commissioner for demarcation of the properties sold to Mst. Naziran (respondent) and to Muhammad Bashir (appellant herein) It was further observed by the learned Settlement Commissioner that if after demarcation of the properties purchased by the said two parties, the house occupied by Aziz-ur-Rehman still remained undisposed of teen his request for its transfer shall be considered. Both the revision were disposed of in the above terms vide order, dated 21-7-1975..
8. Pursuant to the aforesaid order of remand the matter was taken up by the Deputy Settlement Commissioner, Rawalpindi, who in his order, dated 8-3-1976 found (i) that there was no property bearing No. G/116-A. Hence Aziz-ur-Rehman could not be transferred the house in dispute under this number; (ii) that the claim of Mst. Naziran that the house transferred to her under No. G/119 was this very house was not correct as Property No. G/119 was, in fact, a vacant site, having an area of two Kanals and owned by Lala Barkat Ram and that this site was situated at the back of a new house of some Muslim in the same vicinity; and (iii) that the claim of Muhammad Bashir (auction purchaser of G/117) was well founded because the number of the h3use in possession of Aziz-ur- Rehman was G/117 and it stood auctioned in the name of Muhammad Bashir.
9. Thus, Muhammad Bashir was found to be the transferee of the house in dispute by the learned Deputy Settlement Commissioner under Property No. G/117 vide order, dated 8-3-1976.
10. Feeling aggrieved Mst. Azizan challenged the last-mentioned order of the Deputy Settlement Commissioner by filing a writ petition in the Lahore High Court. Her writ petition was heard by a learned Singl3 Judge of the said learned Court who was not satisfied with the correctness of the order of the Deputy Settlement Commissioner on many counts. On the merits of the case he was of the view that:---- "The Deputy Settlement Commissioner has not only misread the record produced but acted on the record which was not relevant. He also did not get hold of the necessary record so as to decide the issue objectively. He, as a matter of fact, totally failed to demarcate the Property G/119 for which the record-keeper had given a specific description. Had he done so, he would not have observed in his order that it is situate somewhere behind some Muslim property."
11. But the main ground for holding the order to be bad was because he was of the view that- "the two properties had been transferred to the two parties by separate numbers. There should, therefore, have been no doubt about the extent of the properties purchased by the two parties. If there was any dispute about demarcation the only competent Court was the Civil Court. In this view of the matter the Deputy Settlement Commissioner had neither the authority nor did he correctly read the record before him."
12. On this view of the matter the impugned order was declared to be without lawful authority and of no legal effect. The final conclusion was expressed thus: "The result is that the parties shall be free to approach the Civil Court in order to get the two distinct properties demarcated, if so advised."
13. This order by the High Court was passed on 2-11-1982.
14. Leave was granted by this Court to consider whether the learned Judge in the High Court was right in holding that the Civil Court was the only competent forum to adjudicate the dispute regarding the demarcation of the property that existed between the parties?
15. This Court has held, in certain cases, that after the issuance of the P.T.D. The property goes out of the Compensation Pool and the Settlement authorities became functus officio to determine and demarcate 1 the boundaries except to the extent provided for in the Permanent Transfer Rules (See S. Anwar Hussain Sani v. Sarfraz Ahmad and others PLD 1971 SC 669 and Ch. Abdul Haque v.
16. Mustajab Bano and others 1982 SCMR 1103). But this rule is not of universal application and the observations made in the above-mentioned decisions have been considered to be opposite only in the facts and circumstances of those cases and a different view taken in other circumstances.
17. Thus, in a case, where a Settlement officer had inspected the spot and found the room in dispute to be unquestionably part of evacuee house transferred to respondent and the entrance leading to the room from respondent's house was found to have been recently blocked as to amalgamate that room with the house transferred to the petitioner, this Court refused to interfere with the above findings of the Settlement officer despite the contention that after the issuance of the permanent transfer deed the property had ceased to be an evacuee and, therefore, he had no jurisdiction to embark upon its demarcation (Abdul Hamid v. Gulab Khan and others 1981 SCMR 188). Again, in Mushtaq A.I and others v. Noor Muhammad and others 1982 SCMR 428 the petitioners themselves had approached the Settlement Authorities to declare parts of the roof on shops to be included in the transfer made to them and the position had been clarified by the Settlement Authorities after spot inspection; the plea that after the issuance of the P.T.Ds. The Settlement Authorities had become functus officio and could not have demarcated the property to indicate which portion of the roof fell to the ownership of the petitioners and which part of it fell to the ownership of the respondent on the ground that this was the function of the Civil Courts, was rejected and it was observed that the clarification having been invited by the petitioners themselves they could not be heard to say that the Settlement Authorities could not have gone into the matter. This is exactly the situation in the present case. Both the appellant and respondent No.1 had themselves gone to the Settlement Authorities for identification of the property transferred to them under the two auctions and hence respondent No.1 could not, in these circumstances, be heard in writ jurisdiction to submit that the Settlement Authorities had no jurisdiction in the matter to clarify the position.
18. Moreover, in a recent decision by this Court in Maqbool Ahmad and another v. Settlement and Rehabilitation Commissioner, Sargodha and others PLD 1983 SC 337 it was observed that it is not correct that in all cases after the issuance of the P.T.Ds. The Settlement Authorities become functus officio to make any type of demarcation because it would depend upon the circumstances of each case whether the Settlement Authorities were competent to demarcate /identify and clarify the position in regard to the property transferred to them.
19. We agree with the above enunciation. Normally the authority', who transfers a property to a person is the proper authority to identify what property it is transferring to him. The Civil Courts, moreover, can only ascertain and declare the rights conferred in the property to the contestants under the P.T.Ds. But cannot themselves embark upon the task of first identifying the property in regard to which the rights of the contestants are to be declared. Thus, unless it is certain as to what property has actually been transferred to a party the Civil Court will not be in a position to proceed with the task of adjudicating upon the further question with regard to the extent and limits of the rights) acquired by a party when it is not certain as to what property has beer transferred to him. This is exactly the situation in the present case because it was still being disputed as to whether the house occupied by Aziz-ur-Rehman was transferred to Muhammad Bashir (appellant'. Under No.G/11' or to respondent No.1 under No.G/119 or whether it was still lying undisposed of and was still available for transfer, being House No.G/116-A, as claimed by Aziz-ur-Rehman. Such a dispute could not appropriately be settled by the Civil Court but only by the Settlement Department--the authority passing the orders of transfer in favour of the appellant and respondent No.1. Moreover, this was not a case where all the contestants had been issued P.T.Ds. Mst. Nazirar undoubtedly had been issued a P.T.D. But there is some controversy as to whether Muhammad Bashir (appellant) has so far been issued P.T.D. Be that as it may Aziz-ur-Rehman, in any case, has neither been issued a P.T.O. Or a P T.D. But was clamouring for the transfer of the house in his occupation as "available property". Hence we cannot share the view of the learned Judge in the High Court, that in the circumstances of this case, the appellant should have approached the Civil Court to obtain demarcation of the property and would, accordingly, set aside the said determination.
20. But this does not end the matter. The learned Settlement Commissioner had remanded the case back to the Deputy Settlement Commissioner for demarcation of the properties transferred to the appellant and to Mst. Naziran. The learned Deputy Settlement Commissioner has, no doubt, demarcated the property transferred to the appellant but he has failed to do so as regard the property transferred to Mst. Naziran. In this connection, he has simply observed that this is a vacant site of two Kanals owned by Lala Bhagat Rama and "is at the back of a new house of some Muslim in the same vicinity". This is not at all a proper demarcation of the property transferred by the Settlement Authorities to Mst. Naziran under Property No.G/119. Hence, his order is liable to be set aside on this short ground.
21. Moreover, while demarcating the two properties, the learned Deputy Settlement Commissioner has relied on the Municipal Record and the records of the Excise and Taxation Department but has made no reference to the Settlement Record, namely, the Survey Register prepared by the Settlement Department itself. If this was available it too should have been considered. Moreover, as observed by the learned Single Judge in the High Court, the relevant record of the Municipal Corporation and the Excise and Taxation Department was not made the basis for arriving at the correct conclusion by the Deputy Settlement Commissioner. Hence his order dated 8-3-1976 is liable to be quashed as having been passed without lawful authority on the ground that he has disposed of the case remanded by the Settlement Commissioner to him in accordance with law.
22. The upshot is that this appeal succeeds and the impugned order of the High Court dated 2-11-1982 is set aside. But in so far as the Deputy Settlement Commissioner has not disposed of the cases remanded to him in his order dated 8-3-1976 in accordance with law, the said order too is set aside. The matter will now go back to the notified officer for disposal of the cases remanded by the learned Settlement Commissioner vide order dated 21-7-1975 afresh, in accordance with law.
23. Since the success is divided the parties are left to bear their own costs.