This judgment will dispose of W.P. No. 562-R of 1981 and W.P. No. 563-R of 1981 as these involve certain common questions of law and facts.
2. Two shops situate in Khanum Bazar, New Anarkali, Lahore bearing Nos. S-64-116/18 and S.64-R- 116/71 were transferred to Ghulam Muhammad and his son Muhammad Shabbir respondent No.1 in W.P. No. 563-R of 1981 and W.P. No. 562-R of 1981 respectively. The petitioners in the two writ petitions, who were real brothers, claim that the respondents entered into an agreement of association with the petitioners and delivered the possession of the shops to them. The agreements of association were approved by the Deputy Settlement Commissioner on 28th of December, 1964 and the Provisional Transfer Orders were accordingly amended. According to the petitioners, the two shops which were amalgamated into one shop which was rented out firstly to one Muhammad Yaqub on 31st of December, 1967 and after it was vacated by him to Ghulam Muhammad respondent No.1 in W.P. No. 563-R/81, under a rent note executed by him on 3rd of June, 1968.
3. About 5 years thereafter, on 7th August, 1973, two applications were filed by the respondents Ghulam Muhammad and Muhammad Shabbir before the Deputy Settlement Commissioner wherein they requested that the two shops be transferred to them on the basis of NCH forms earlier submitted by them. A report was submitted by the Settlement Inspector on 15th of August, 1973, pointing out that the shops already stood transferred to the two respondents who had since surrendered their shares in favour of the petitioners. After holding some proceedings, the Deputy Settlement Commissioner reported to the Additional Settlement Commissioner that the applications filed by the respondents were liable to be rejected. The Additional Settlement Commissioner, however, on 16th of August, 1974 remanded the case back to the Deputy Settlement Commissioner directing him to pass necessary orders himself. On 31st March, 1975 the Deputy Settlement Commissioner again submitted a report to the Additional Settlement Commissioner recommending the cancellation of the agreement of associations. The Additional Settlement Commissioner acting on this report cancelled the agreement of association vide order, dated 16th of April, 1975. This order was ex parte against the petitioners. They . . . . . . . . Filed an application for setting aside this ex parte order to the Additional Settlement Commissioner on 22nd March, 1976.
This application was forwarded to the Deputy Settlement Commissioner who dismissed it on 26th of May, 1976.
4. The petitioners challenged the orders, dated 16th of April, 1975 of the Additional Settlement Commissioner cancelling the agreement of association and the order dated 26th of May, 1976 passed by the Deputy Settlement Commissioner by filing two Constitutional petitions in this Court in W.P. Nos. 92--R/76 and 1093-R/76, which were accepted on 30th of June, 1977. It was held that the petitioners were entitled to be heard before any order could be passed by the Settlement Authorities and, therefore, the two orders were declared to be without lawful authority and of no legal effect, and the Additional Settlement Commissioner was directed to proceed in the matter after issuing notices to the petitioners and affording them an opportunity of being heard. In the order of this Court dated 30th June, 1977, the learned Judge was pleased to observe that, "it is obvious that both the parties shall have a right to raise whatever pleas they have." In the post remand proceedings, the petitioners filed their replies to the applications of the respondents, dated 7th of August, 1973 in which they stated that the respondents had surrendered their right in favour of the petitioners by duly executing the agreements of association which were proved by the Deputy Settlement Commissioner. The Additional Settlement Commissioner after recording the evidence of the parties came to the conclusion that the two agreements of association had not been executed by the respondents but were forged and fabricated. He, therefore, proceeded to set aside the order of the Deputy Settlement Commissioner dated 28th of December: 1964 allowing the associations and the subsequent actions taken on the bass of the aforesaid agreements were declared as null and void. These two writ petitions are directed against this order of the Additional Settlement Commissioner.
5. Malik Muhammad Nawaz, Advocate, learned counsel for the petitioners has contended that the two orders of the Additional Settlement Commissioner suffer from errors apparent on the face of the record arid misreading of evidence. According to the learned counsel, the respondent No. 2 while coming to the conclusion that the agreements of association were forged and fabricated had ignored material evidence brought on the record. The further grievance of the learned counsel was that the Additional Settlement Commissioner relied upon inadmissible evidence namely the affidavits of Muhammad Yaqub and Ashiq Hussain without granting any opportunity to the petitioners to cross-examine them. The learned counsel for the petitioners has also objected to the jurisdiction of the Additional Settlement Commissioner to cancel the agreements of association as according to him no proceedings in this respect were pending at the time of repeal of Displaced Persons (Compensation & Rehabilitation) Act, by the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The learned counsel has also complained that the petitioners were not allowed sufficient opportunity to produce evidence and the application filed by them for summoning two marginal witnesses of the association deeds was erroneously rejected by the Additional Settlement Commissioner.
6. Syed Jamshaid A.I, Advocate appearing for the respondents and Sh. Anwarul Haq, Advocate, who assisted him, have on the other hand, contended that at the time of repeal of the Settlement Laws, no Permanent Transfer Deed had been issued in favour of any person and, as such, the question of final transfer was a matter 'pending' with the Settlement Authorities who had jurisdiction to hold an inquiry and decide as to who was entitled to the issuance of Permanent Transfer Deed. The learned counsel further stated that in the remand order passed by this Court, the Settlement Authorities had been directed to hold an inquiry and, therefore, no possible exception can be taken to it by the petitioners on the ground of lack of jurisdiction.
On merits, it was contended that the Settlement Authorities were concerned with the deeds of association alone and their jurisdiction was dependent upon the admission of execution by the executant of the deed. In case of denial of execution, the Settlement Authorities could not record any evidence or hold an inquiry. The learned counsel further contended that the order allowing the association was passed mechanically without application of mind and without recording the statements of the executants as required by the mandatory provisions of law. All the material evidence, had been taken into consideration by the Additional Settlement Commissioner who recorded a finding of fact which cannot be interfered with in the Constitutional jurisdiction of this Court. As regards the contention of the learned counsel for the petitioners, that affidavits could not have been relied upon without the deponents being subjected to cross---examination, it was submitted that the respondents had bled an application for summoning them but they were not allowed to do so by the Additional Settlement Commissioner.
7. It is not necessary to decide various questions of law raised by the learned counsel for the parties in these proceedings, for, I have come to the conclusion that the two orders of the Additional Settlement Commissioner are not sustainable and suffer from errors patent on the record and the matters will, therefore, have to be remanded to the Additional Settlement Commissioner for re-decision. The Additional Settlement Commissioner, in his impugned orders has held the agreements of association to be forged and fabricated and also void being without consideration. The petitioners in this respect, had before the Additional Settlement Commissioner, apart from the deeds of association, relied upon three other documents namely agreement, dated 14th of December, 1964, receipt for Rs. 11,000 dated 14th of December, 1964 and the rent note dated 3rd of June, 1968, allegedly executed by respondent Ghulam Muhammad. Through these documents, it was sought to be established that the respondents in the two writ petitions had, in fact, surrendered their rights in favour of the petitioners and received valuable consideration. The petitioners had also filed certified copies of the proceedings in ejectment petition filed by him against Ghulam Muhammad respondent before the Rent Controller, where, while making a statement, Ghulam Muhammad had admitted his signatures on the documents but stated that he could not remember whether at the time of signatures, the papers were blank or any writing was appearing thereon. Unfortunately, while deciding the question regarding the execution of the agreements of association, and the payment of consideration, the Additional Settlement Commissioner totally omitted to consider or discuss this important evidence. The respondent No. 2 was under a legal obligation to have decided these questions of fact only after taking into account all the material on the record which he failed to do. This omission on the part of the respondent No. 2, has rendered his orders to be without lawful authority.
8. Similarly while coming to the conclusion that no consideration was paid by the petitioners to the respondents for surrendering their rights in the shops in question, the Additional Settlement Commissioner has excluded the receipt Ex. R-2 on wholly erroneous grounds. The receipt Ex. R-2, according to section 17 of the Registration Act did not require compulsory registration and as such it could not be discarded on the basis that executant had not appeared before the Sub-Registrar.
Another infirmity in the order of the Additional Settlement Commissioner, is, that he has, while refusing to rely upon the documents produced by the petitioners, based his findings on two affidavits, one filed by Ashiq Hussain and the other by Muhammad Yaqub. No opportunity was allowed to the petitioners to cross-examine the two deponents and as such their affidavits could not be taken into consideration by the Additional Settlement Commissioner. The learned counsel for the respondents pointed out that an application was filed by the respondents for summoning Ashiq Hussain for the purpose of cross-examination but it was disallowed by the Additional Settlement Commissioner without any lawful basis. A similar grievance has been raised by the petitioners stating that they were not allowed to summon the marginal witnesses of the association deeds and their application in this behalf was rejected only on the ground that the Chief Settlement Commissioner had directed the Additional Settlement Commissioner to dispose of the matter by 31st of July, 1981. This administrative order could not furnish any basis for denying the petitioners their right to produce evidence.
9. Similarly the question regarding minority of Muhammad Shabbir respondent No.1 also appears to have been decided only on the basis of the evidence produced by the respondent without considering the material brought on the record by the petitioners. In NCH Form filed by the respondent which was signed, by him he was not shown as a minor. On the other hand, the transfer was sought by him on the basis of his position dating back from the year 1954. This aspect of the matter should also have teen considered by the Additional Settlement Commissioner.
10. The decision of the Additional Settlement Commissioner on the question of jurisdiction is also laconic and sketchy. He has failed to advert to the provisions of law applicable or the various arguments which are said to have been raised in this behalf by the parties. Similarly the other important questions relating to estoppel and the jurisdiction of Settlement Authorities to hold enquiry into the execution of the agreement, have neither been adverted to nor decided by respondent No. 2. In these circumstances, the order of the Additional Settlement Commissioner, is found to be not sustainable and following the law declared by the Supreme Court in Sher Muhammad Shah v. Abdul Aziz and others 1989 SCMR 178 after quashing the impugned order, the case has to be remanded to the respondent No. 2 for decision afresh.