Facts giving rise to this Constitutional petition, briefly stated, are that an evacuee property bearing House No. 12, Street No. 33, Qila Lachman Sigh, Ravi Road, Lahore was transferred to one Shahab Din, predecessor-in-interest of respondents Nos. 2 to 6. By an agreement of association (Annex F), Shahab Din had allegedly surrendered half share of the property in dispute in favour of the petitioner on the condition that the latter shall pay price of half portion to the Settlement Department. The case of the petitioner is that the agreement in question was placed before the DSC who allowed it on 13-1-1965. Petitioner thereafter made an application Annex G) on 25-5-1965 before the DSC praying that "a P.T.O. For 1/2 portion o the house may kindly be issued in favour of the petitioner and necessary appendix may also be issued enabling the petitioner to pay the evaluation price." On this application, it was reported by the Record Keeper-II that the petitioner "states that he deposited the Deed of Association on 3-12-1964 but he has got no receipt for the same. However a photostat copy of the agreement deed is with him and requests that this may be substituted against the original one:"
Submitted for order pl.
"DSC passed the following order on 16-8-1965:-- "No photostat copy at this stage is admissible unless the submission of its original is proved. Inform the applicant:"
Copy of the report of the record-keeper and the order of the DSC thereon is Annexure H.
2. Petitioner moved another application (Annex J) before the DSC on 15-1.0-1968 praying therein that "1/2 of the house may be transferred to the petitioner in terms of the said agreement of association and in the light of respondent's statement in the file and appendix IX be issued to the petitioner separately for payment of the transfer price." In this application , plea taken by the petitioner was that the agreement was allowed by the DSC on 13-1-1965 but the original agreement was misplaced and was mixed with other record in the office and was not available in the rile.
However, on search made, it was later traced and made available and "the petitioner obtained a certified copy of the same on 11-1-1968.: It appears that the application (Annex J) was dismissed in the absence of the petitioner on 8-5-1969. His subsequent application also met the similar fate and vide memo dated 7-6-1969. (Annex N), he was informed "Your applications have been filed after necessary enquiry." It is alleged by the petitioner that he received the intimation (Annex N) m April, 1983 but the allegation does not appear to be correct because the petitioner is shown to have filed an appeal (annex K) on 26-6-1969 wherein he challenged the orders dated 8--5-1969 and 7-6- 1969. In this appeal filed before the Addi: Settlement Commissioner, petitioner, inter-alia, demanded inquiry into what was described by him as fraud and forgery committed by the respondents for obtaining the PTD in respect of the house in dispute. Fate of this appeal is allegedly not known to the petitioner. It is stated that the petitioner continued making application to the DSC and other authorities but nothing came out and he has now approached this Court through the present constitutional petition praying that the order dated 7--6-1969 be declared to be without lawful authority and "the respondent Settlement Department may be directed to re-examine and decide the issue afresh."
3. Case set up in the writ petition is that the agreement of association was placed on the file; it was allowed by the DSC on 13-1-1965 but the file was got misplaced by Mahboob Subhani respondent son of the original transferee who was an employee of the Settlement Department. It is further claimed by the petitioner that being disappointed with the proceedings before the Settlement Department, he had paid Rs. 5,000 to Ghulam Nabi, successor-in-interest of Shahab Din, the original transferee as price of his share in the house vide Annexure P.
4. Case of the respondents, on the other hand, is that the property in dispute was transferred to their predecessor Shahab Din. PTO was issued in his favour on 8-11-1962. He had paid entire price of the property by paying Rs. 1080 in cash on 17-10-1966 and the remaining amount through adjustment from compensation book No. CB 282357/LHR/11/9400/FA No.LHR.11.8410 of one Mst.
Maryam as also out of his own compensation book No. CB 222638/LHR.11--1738. Shahab Din died issueless on 16-11-1967. Respondents being his legal heirs moved an application before the DSC for being impleaded as successors of the transferee. This application after publication of notice in daily "Mashraq" and "Kohistan", Lahore was accepted by the DSC-11 on 15-8-1968. Thereafter, PTD was issued in favour of the respondents on 21-6-1969. According to the respondents, Shahab Din never entered into any agreement of association with the petitioner who approached the Settlement Authorities with a photo copy of a forged agreement of association which was not accepted by the DSC and his request for issuance of PTO for 1/2 portion of the house was not acceded to. Petitioner then moved further applications repeating the same request whereupon an inquiry was held in which Mr. Shamasuddin, DSC stated that he had never passed any order accepting the agreement of association. Petitioner's applications were accordingly rejected on 7- 6-1969 by the DSC concerned holding that the allegation made by the petitioner was baseless. It is further submitted by the respondents that having remained unsuccessful with the Settlement Department, Petitioner entered into an agreement with Ghulam Nabi on 25-1-1977 whereby Ghulam Nabi agreed to sell the house in dispute for consideration of Rs. 5,000. Petitioner also paid Rs. 500 as earnest money. Later on, he filed a suit for specific performance of the aforesaid agreement and during the course of hearing of that suit, he made a statement (R-1) that if Ghulam Nabi stated on oath on the Holy Quran that he had not received any further amount from the petitioner after the expiry of the period specified in the agreement or that the petitioner had not asked him within the specified time to get the sale---deed registered, his suit may be dismissed and in that event he would accept himself as a tenant. Ghulam Nabi made the requisite statement whereupon the learned Civil Judge dismissed the petitioner's suit vide order dated 26-5-1980 holding therein that the petitioner from that date onwards would be a tenant in the property in dispute on a monthly rent of Rs.
25. It was also directed by the learned Civil Judge that Ghulam Nabi defendant would pay back the earnest amount of Rs. 500. It is pointed out by the learned counsel for the respondents that the petitioner thereafter moved another application (R-2) before the Civil Judge making a complaint that Ghulam Nabi had not paid back the earnest amount. Ghulam Nabi appeared before the Civil Court and showed the receipt in respect of the deposit of the amount in question whereafter the petitioner's application was dismissed.
It is also stated by the respondents that after the petitioner had filed the suit against Ghulam Nabi on 9-4-1979, respondents had served him with a notice on 8-12-1979 demanding payment of rent.
In pursuance of that notice and also in view of the order of the Civil Court dated 26-5-1980, petitioner started paying rent to Ghulam Nabi and he continued paying it until the death of Ghulam Nabi in September, 1983. According to the respondents, petitioner paid the rent till June, 1983.
5. Basing himself on the aforementioned premises, learned counsel for the respondents argued that the Settlement Authorities had not accepted the petitioner's claim that he had entered into an agreement of association with Shahab Din, the original transferee and the agreement was allowed by the DSC. This finding, according to the learned counsel being one of fact and recorded after proper inquiry is not open to interference in writ jurisdiction and more so when it has been challenged after inordinate delay of 15 years. It was further contended by the learned counsel for the respondents that the petitioner in any case relinquished his claim based on the alleged agreement of association, when he entered into an agreement with Ghulam Nabi to purchase the house in dispute and then filed a suit for Specific Performance of that agreement. Not only that, he' had even agreed to be treated as a tenant under Ghulam Nabi and started paying rent to him. This conduct of the petitioner, it was contended, precluded him from pressing his claim on the basis of the alleged agreement of association.
6. Learned counsel for the petitioner vehemently contended that the inquiry held by the Settlement authorities was ex parte and therefore any finding recorded as a result thereof was of no consequence. His grievance was that the petitioner should have been allowed an opportunity to cross-examine Shamasuddin DSC who had denied having passed any order allowing the agreement of association. Learned counsel further maintained that the fact of the petitioner having entered into an agreement with Ghulam Nabi and other consequential actions taken by him could not operate as estoppel against him. Learned counsel for the petitioner as a last resort assailed even the validity of the transfer of the property in dispute to Shahab Din. He argued that Shahab Din had applied for half portion of the property in dispute and, therefore, he could not have been transferred the whole house.
7. I have considered the submissions made by the learned counsel for the parties and have perused the original file of the Settlement Department. Main stay of the petitioner's case is the agreement of association with Shahab Din, the transferee of the house which was allegedly allowed by the DSC on 13-1-1965. This contention was not accepted by the Settlement authorities for more than one reason. Original deed of association was not forth coming from the record.
Petitioner could not furnish any receipt to prove the submission of any such deed. Photo copy of the deed submitted by him did not bear any diary number. Matter was later placed before Mr. Shamasuddin who was the DSC concerned at the relevant time and he denied having passed any order on the Deed of Association. It was thus found by the Settlement authorities that the deed of association submitted by the petitioner was bogus. This evidently is a finding of fact which was recorded by competent authority after proper inquiry. It is, therefore, not open to interference in extra-ordinary writ jurisdiction. I find no merit in the submission of the learned counsel for the petitioner that the finding was of no consequence because the petitioner was not afforded opportunity to cross---examine Shamasuddin DSC. There was hardly any occasion, need or justification to allow such an opportunity to the petitioner. DSC was not formally examined as a witness. Matter was referred to him in routine to ascertain from him whether the order purportedly accepting the association deed bore his signatures and he categorically stated that the signature were not his. It may pertinently be observed that no motive was suggested against the officer even in the appeal filed soon after the inquiry.
8. Learned counsel for the petitioner has not denied that the petitioner had agreed to purchase the property m dispute from Ghulam Nabi, the predecessor---in-interest of the respondents. He m fact on Court's direction produced photocopy of the agreement dated 25-1-1977 which shows that the petitioner had agreed to purchase 3/5 share in the house from Ghulam Nabi. It has also not been denied that the petitioner filed the suit for Specific Performance of the said agreement which was ultimately dismissed and the petitioner accepted his status as a tenant of the premises and that he had also been paying rent to Ghulam Nabi upto June, 1983. This conduct of the petitioner clearly shows that he relinquished his claim based on the agreement of association. He cannot, therefore, be permitted to re-agitate that claim through this petition. Petitioner can also not challenge the transfer of the house and that, too, at this late stage. He has throughout based his case on the agreement of association, of course, accepting the transfer in favour of Shahab Din as valid and proper. He cannot now turn round and challenge its validity.
9. Apart from what has been said above, writ petition suffers from gross laches. Petitioner's request for the issuance of PTO on the basis of the agreement of association was disallowed in the first instance in 1965 and then m 1969. Petitioner claims to have filed an appeal which he alleges was never disposed of by any competent authority. This is just not believable that the appeal which is shown to have been filed through an Advocate has remained undisposed of for so long. It may well have been dismissed in default or even on merits and thereafter the petitioner instead of pursuing the matter any further chose to take recourse to a private deal with Ghulam Nabi. Be that as it may, petitioner having approached this Court after along delay of 15 years, his writ petition is liable to be dismissed on this short ground.
10. For all the reasons aforementioned, I find no merit in the writ petition which is hereby dismissed but with no order as to costs.
H.B.T./S-486/L