This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against the order of the Deputy Settlement Commissioner (Plots), Lahore, dated 22-11-1975, whereby he ordered the parties to approach the Civil Court for getting the evacuee and non- evacuee shares of the disputed property partitioned and then come to the Court for, the transfer of the evacuee shares on the basis of their entitlement.
2. The dispute in this case relates to a plot bearing Khasras NO-S.'4776 and 4782, Bibi Pak Daman, Lahore. According to the Jamabandi Khasra No. 4776 measures 7 Kanals, 11 Marlas and 11 square feet and Khasra No. 4782 measures 2 kanals, 12 marlas and 75 sq. Ft. Respectively. The petitioners claimed to be in joint possession of the disputed plot since 1950. They filed BS Form No. 6658 dated 15--2-1971 for the transfer of: the disputed plot under Settlement Scheme No. VIII. The Deputy Settlement Commissioner (Plots), Farid Kot House, Lahore, by order dated 13-4-1971, transferred the same to the petitioners against transfer price of Rs. 12,649. Subsequently, an open plot measuring one kanal and 5 marlas bearing Khasras No. 4776 and 4782 was included in open auction and was purchased by one Kh. Zahoor-ud-Din, who was succeeded by Kh. Zahoor-ul---Hasan. This auction was confirmed by the Additional Settlement Commissioner on 2-5-1971. Respondent No. 2 filed two appeals against the said order, one was against the confirmation of the auction in favour of Kh.
Zahoor-ud-Din and the other was against the order of transfer dated 13-4-1971 in favour of the petitioners. Two appeals were also filed by one Malik Muhammad Yousuf, one against the State and the other against the present petitioners. These appeals were allowed by order dated 14-9- 1972 of the Additional Settlement Commissioner and the case was remanded to the Deputy Settlement Commissioner, Lahore. It was also observed therein that in case the Deputy Settlement Commissioner finds the evacuee area to be one kanal and 5 marlas, then the auction already made in favour of Kh. Zahoor-ul-Hasan can be maintained. It gave rise to revision petition filed by respondent No. 2 before the Settlement Commissioner which was accepted by the Additional Settlement Commissioner, with powers of the Chief Settlement Commissioner, Lahore, by order dated 15-11-1973. The auction was held to be illegal and was set aside. The order regarding remand in favour of the other party was maintained. The entitlement of respondent No.2 regarding the transfer of 1/3rd of the evacuee share under section 16(C) of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, was considered and rejected. The Deputy Settlement Commissioner in remand without determining the entitlement of the parties directed them to approach the Civil Court for the purpose of partition, vide the impugned order dated 22-11-1975.
3. The grievance of the petitioners is that the Deputy Settlement Commissioner ought to have determined the shares of the petitioners, inasmuch as, the Civil Court had no jurisdiction in the matter, in view of the provisions of section 25 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. It is next submitted that in the earlier round of litigation between the parties, the Settlement Commissioner found the petitioners entitled to the transfer of the evacuee share. The order of Settlement Commissioner on this score was not challenged by respondent No.2 and as such it attained finality.
4. Mr. Jahangir A. Jhoja, learned counsel for respondent No.2, submitted that in the present case, the evacuee and non-evacuee interest is admitted, but so far no partition has taken place and until and unless the land is partitioned and both interests are separated, the Settlement Authorities, cannot allot a portion of the land to the petitioners, as the jurisdiction to partition the land does not vest with the Settlement Authorities but it vests with the Civil Court. Reliance is placed on Abdul Ghani v. Settlement & Rehabilitation Commissioner, Hyderabad and Khairpur Divisions and 5 others (1971. Law Notes 222), wherein it was held that the Settlement Authorities did not possess any power to partition the property in dispute where it is seized by evacuee and non-evacuee and acquired under the provisions of Displaced. Persons (Compensation & Rehabilitation) Act, 1958. The question arose as to what course was open to the parties or the Settlement Authorities to divide the property. It was held in the absence of any authority under the Act, the remedy was either to recourse to private partition or to go to the Civil Court and the Settlement Authorities cannot partition the property. This judgment was upheld by the Supreme Court in Mst. Tayyabun Nisa and others v. Abdul Ghani and others (1989 SCMR 1685), wherein it was held with reference to sections 8(2) and 16(C) of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, that the power to partition a property jointly owned by the evacuee and non-evacuee cannot be spelt out from sections 8(2) and 16(C) as being available to the Settlement Authorities. This is a power which is possessed by Civil Courts which cannot be divested of this power in absence of specific provisions in Act XXVIII of 1958, conferring such powers upon the Settlement Authorities. This view was also followed in Muhammad Hussain and 3 others v. Additional District Judge and Ex-Officio Settlement & Rehabilitation Commissioner and another (P.L.D. 1972 Karachi 632). The view taken in the latter decision was also upheld by the Supreme Court in Mst. Sardar Begum v. Sub-Maj (Rtd)
Aziz Ahmad & 9 others (1983 S.C.M.R. 90), wherein it was held that the Settlement Authorities have no jurisdiction to partition.
5. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the material available on record. It is an admitted fact that the property in dispute is partly evacuee and partly non-evacuee. The total area of Khasra No. 4776 comes to 2 kanals 11 marlas and 119 sq. Ft. Out of which 1/4th is evacuee and the remaining is admittedly non- evacuee. A finding of fact has been recorded by the Deputy Settlement Commissioner in pursuance of the remand proceedings that the petitioners did file BS form for the transfer of the land in dispute. There was, therefore, no hurdle in transferring the evacuee portion of the land to the extent applied for by petitioners. This being so, the Deputy Settlement Commissioner should have in the first instance determined the entitlement of the parties, with a direction to them to approach the Civil Court for demareation/partition of their respective shares. In the absence of this determination, the Civil Court was not competent to partition the property between the parties. The question as to which portion would fall to the share of the petitioners and which to the non- evacuee would arise only when the shares of the parties are duly determined by the Settlement Authorities and not before. In the instant case, the Deputy Settlement Commissioner has kept the matter pending so far as entitlement of the parties is concerned but gave a direction to them to approach the Civil Court to seek the partition for which there was no legal basis. The petitioners would have no locus standi to approach the Civil Court unless and until a transfer order is made in their favour. The authorities cited by the learned counsel for the respondent No. 2 are clearly distinguishable and not attracted in the instant case, inasmuch as, in the precedent cases, the shares of the joint owners were duly determined arid the dispute was with regard to partition simpliciter. Here, the dispute regarding respective shares is yet to be adjudicated by the Deputy Settlement Commissioner. Clearly, the Deputy Settlement Commissioner has acted illegally in directing the parties to approach the Civil Court, in the first instance for determining the evacuee and Muslim shares through partition and then come to the Deputy Settlement Commissioner for determining their entitlement for transfer of the evacuee share.
6. The' result is that the order of the Deputy Settlement Commissioner is declared as without lawful authority and of no legal effect. The case is remanded to the Chief Settlement Commissioner for its entrustment to the Notified Officer for passing order for transfer of the evacuee share to -the petitioners on the basis of their entitlement and thereafter the parties be directed to approach the Civil Court for partition, if so required. The parties are directed to appear before the Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore, on 9-1-1989, for entrustment of the case to the Notified Officer. The parties are litigating for over fifteen years, the Notified Officer is, therefore, directed to dispose of the matter within thirty days of the first date of hearing. To this extent, the writ petition is accepted, but there shall be no order as to costs.
H.B.T./Z-105/L