1. ' SHAFIUR RAHMAN, J.-- Leave to appeal was granted to examine whether a Chaubara constructed after the transfer of the shop to the first respondent could not be included in the P.T.D. As part of the evacuee property transferred to him and whether a P.T.D. Showing the transfer of the Chaubara without an antecedent order of entitlement passed by the competent authority, was in accord with the law.
2. ' Urban Property No,P-157, Ward No,2, Rail Bazar, Lyallpur (now Faisalabad) is the subject-matter of this litigation. It comprises four shops in front and a residential portion at the back. A shop each was in possession of Muhammad Khalil, respondent No,1, Ghulam Muhammad, Abdul Aziz and Allah Ditta respectively. The residential portion at the back was in possession of a local, S.Samual by name. When the occasion for determining the entitlement of the parties came, it was found that there were three claimants to it, namely, Muhammad Khalil, Aziz and Allah Ditta. Samual was excluded on account of being a local and Ghulam Muhammad on account of having not applied.
3. Those found entitled were asked by the Deputy Settlement Commissioner to work out a compromise formula for the transfer of this property. The compromise was duly effected between these three on 11-11-1959 whereunder Ghulam Muhammad was excluded. The shops were transferred to each of the three occupants. The shop of Ghulam Muhammad was jointly transferred to all these three. The residential portion was transferred to Allah Ditta. Muhammad Khalil and Ghulam Muhammad preferred Appeals. So did Samual subsequently. Ultimately, and finally, each of the occupants was allotted the property in his possession. Muhammad Khalil was transferred the shop in his possession and so were given Allah Ditta, Aziz and Ghulam Muhammad one shop each, the residential portion going to Samual. In course of time, the interest in allotted shops in occupation of Ghulam Muhammad and Aziz devolved by association and inheritance on Mst. Khadeeja Begum.
4. ' In 1966 or near about the appellant found that Muhammad Khalil was raising some construction over the roof of the shops transferred to Aziz and Ghulam Muhammad. She filed a Civil Suit. During the course of the recording of the evidence Muhammad Khalil respondent No,1, produced a P.T.O.
5. Which showed that a Chaubara alongwith the shop had been transferred to him. On this the appellant approached the Deputy Settlement Commissioner for deleting the Chaubara because it was not included in the transfer nor in respect of it any entitlement of Muhammad Khalil was established. Elaborate evidence of the parties was recorded in order to determine whether a Chaubara was in fact at all transferred to Muhammad Khalil. The Deputy Settlement Commissioner did not determine the controversy on merits but decided the question on the locus standi of the appellant and raised such objections as would appear from the following order made by him on 2- 7-1968:-- "I have considered her contention but I do not agree with her at this late stage. She is not an original transferee. Her status is that she stepped into the shoes of the transferee. She is a transferee through association. It was Ghulam Muhammad and Abdul Aziz, who should have objected for deletion of word `Chaubara' from the shops. P.T.Os. Were issued to all the transferees long ago in the year 1961 and the original transferees never felt aggrieved nor filed any application/complaint or appeal in the competent Settlement Court for the redress of their grievances. She can claim only that much right which were held by the original transferee at the time of association. As her entitlement is through association she should be content with the rights/encumberances left by the transferees, who before the execution of this agreement of association, never objected to the issue of the said P.T.O. In favour of Mistri Muhammad Khalil."
6. ' Mst. Khadeeja Begum filed an appeal with the Additional Settlement Commissioner and also prayed for a stay order. Her Appeal No,S-241 of 1968 was entertained by the Additional Settlement and Rehabilitation Commissioner and a stay order was issued on 26-7-1968. This order and the endorsement/communication at page 353 of the record is being reproduced hereunder in extenso, as it has not been taken note of by any of the Authorities dealing with the case and its legal implications have not been examined:-- "In the Court of Syed Hameed Hussain, ' Addl: Settlement & Rehab: Commissioner ' Sargodha Division, Sargodha.
7. ' Appeal No,S-241 of 1968.
8. Khadija Begum wife of Haji Akhtar Ali resident of Lyallpur--Appellant versus Muhammad Khalil son of Haji Khuda Bakhsh Resident of P.157 W.2. Lyp.-- Respondent Reg: Property No,P-157 Wd. 2 Lyallpur.
9. ' Entertain. Documents not to be issued till the decision of the appeal. Sd/- Addl: Settlement & Rehab: Commissioner ' 26-7-1968. Sargodha Division, Sargodha.
10. Endorsement No ASC-SRD/2433. Dated 30-7-1968. A copy is forwarded to the:--
(1) Deputy Settlement Commissioner, Lyallpur for information.
(2) Mst. Khadija Begum wife of Haji Akhtar Ali for information. Sd/- Reader to Addl. Settlement & Rehab: Commissioner, Sargodha Division, Sargodha."
11. ' Notwithstanding this order, P.T.D. In respect of the Chaubara was issued to the respondent No,1 on 31-7-1968:taking mote of the order of the Deputy Settlement Commissioner passed on 2-7-1968, but not taking note of the pendency of the appeal before the Additional Settlement Commissioner and the interim order passed thereon. 'The Additional Settlement Commissioner accepted the appeal on 31-10-1968 and ordered the deletion of the Chaubara by holding as hereunder:-- "I have examined the record and after hearing the arguments advanced by the learned counsel for the parties I am of the view that anything wrong done at any time is to be rectified by the department if it is inconsistent with the law and instructions. In this case, it appears from the perusal of the record that actually there was no Chaubara which has been transferred to the respondent. The record of the case shows that it was a self-construction and as such any construction which is not evacuee cannot be incorporated in the Provisional Transfer Order. The portions or portion of the property which are evacuee are only to be brought on the I.T.O. In this case it stands proved from the record beyond any shadow of doubt that there was no Chaubara at the site and it was constructed by the respondent at his own cost. As such, the addition of the word Chaubara which was not evacuee and was constructed by the respondent himself should not have been added in the P.T.O. The appeal is disposed of in the terms indicated above."
12. ' The Settlement Commissioner in Revision also affirmed the conclusion of the Additional Settlement Commissioner by observing as hereunder:-- 'By seeing through the aforesaid arguments of both the parties and from a perusal of the record of the case I am of the view that the conclusion drawn by the Addl. Settlement Commissioner in his orders as impugned was nowhere unjustified. The fact of the present petitioner having been transferred only a shop is abundantly clear from the orders dated 27-4-1960 of the Addl.
13. Settlement Commissioner wherein the present petitioner is shown in occupation of the shop which had been transferred to him. As for the mention of his living in a Chaubara constructed on his shop, it would not denote the said Chaubara to have been included in the transfer of the property in his favour nor its existence as an evacuee property. Since the transfer of the property was confined as for the petitioner to the shop alone, P.T.O. In his favour would only show the description of the property as a shop and not one with Chaubara on top. The respondent as a successor-in-interest of the previous transferees could not as well be estopped from pursuing her rights in the property.
14. Question of any delay or the occasion being very late, could not as well stand in her way viz. a viz, her rights in the property."
15. ' Muhammad Khalil, the respondent No,1 invoked the Constitutional jurisdiction of the High Court where he succeeded. The ground which prevailed with the learned Judge in the High Court will appear from the following findings recorded in the judgment:-- "The appeal against the order of the Deputy Settlement Commissioner dated 2-7-1968 was for refusing to amend the transfer order passed as far back as 1961. The later order had, in any case, become final, and, in pursuance thereof, Permanent Transfer Deed had to be issued and was, accordingly, issued. Therefore, no exception can be taken to the issuance of the Permanent Transfer Deed. That had ousted the jurisdiction of the settlement authorities as laid down in the abovenoted cases by the Supreme Court. Rejection of a miscellaneous application by a Deputy Settlement Commissioner cannot confer, on appeal to the Additional Settlement Commissioner, a jurisdiction on the latter to upset final order passed half a dozen years ago, and, ignore Permanent Transfer Order, non-evacuee property cannot be shown and as the Additional Settlement Commissioner had held in the impugned order that the Chaubara in dispute was constructed by the petitioner and, therefore, that was not an evacuee property, it need only he said that even if it be so held how can the respondent No,1 lay claim to it because in that event, it could not be transferred to the respondent No,1 either, as the latter was only transferred the evacuee property."
16. ' Mr. M.Nawaz Kasuri, Advocate, the learned counsel for the appellant did contend that the P.T.D.
17. Was issued while the proceedings in appeal were pending and also while a stay order had been passed by the Appellate Court, but he was unable to produce material in support of it. On the contrary, in his first Constitution Petition he had mentioned that while his application for copy of the order of Deputy Settlement Commissioner was pending and before the appeal had been filed the P.T.D. Was issued. It was his contention that the P.T.D. Had in any case to conform to the entitlement order of the competent authority and not any and every P.T.D. Was immune from scrutiny by the Settlement Authorities.
18. ' Mr. Abdul Wahab-al-Khairi, Advocate, the learned counsel for the respondent on the other hand relied mainly on the fact that there was evidence to show that Chaubara existed.Since 1947 and that P.T.D. Had issued and thereafter the Settlement Authorities had become functus officio. He has relied on the statement made by Ghulam Muhammad the original occupant, a transferee of one of the shops to make out the case for Muhammad Khalil.
19. ' The legal implications of such an order as was passed by the Additional Settlement Commissioner on 26-7-1968 reproduced in extenso have been considered by a Full Bench of the Lahore High Court in the case of Karam Ali and others v. Raja and others (PLD 1949 Lah. 100). It enunciates the general proposition of law as well as the interpretation of the specific provision of Order XLI, Rule 5, C.P.C. In the following words:-- "On a purely grammatical construction of this rule, therefore, it must be held that the jurisdiction of the Court to take further proceedings or execution proceedings under a decree appealed from is excluded the moment an order staying such proceedings is recorded, and that this exclusion does not depend on anything other than the making of the order. It is true that the execution of a decree is a matter resting entirely with the executing Court and not with the Appellate Court, but this position is correct only where there is no direction under rule 5 which clearly gives to the Appellate Court the power to make an order affecting execution. When such order is made, the jurisdiction of the executing Court in respect of the matters covered by that order is superseded and remains suspended as long as that order exists. Such order is an order in the lis, by which the parties and the executing Court are both bound and any order by the executing Court inconsistent with that order is a nullity because ex hypothesi the order relates in the language of the constitutional law to a field that has already been occupied by the superior Court. In several respects the appeal revives and resurrects the suit and in a number of cases the appeal itself has been held for certain purposes to be continuation of the suit. It arrests res judicata and keeps alive lis pendens though it does not kill the decree or make ineffective any proceedings taken under the decree in the absence of an order of the Appellate Court to the contrary. In fact, rule 5 recognises the existence and the validity of the decree unless it is reversed on appeal and allows further or execution proceedings to be taken under it, but all this is subject to the power of the Appellate Court to order stay. It gives to the Appellate Court limited and conditional powers of disallowing further proceedings under the decree but such powers, when exercised, have the effect of taking away from the lower Court powers to the extent that they have been exercised by the Appellate Court."
20. ' This principle of civil law has been recognized as applicable in Settlement proceedings as well. In the case of Sher Muhammad v. Settlement and Rehabilitation Commissioner, Peshawar and 3 others (1974 SCMR 506) and Abdul Rashid Khan and 2 others v. Mst. Nasim Akhtar (1974 SCMR 509) it was held that P.T.D. Was not immune from scrutiny if it was not in accord with the orders passed in pending proceedings.
21. In view of the pending appeal it was fully within the competence of the Additional Settlement Commissioner and the Settlement Commissioner to enquire into the facts of the case and to record a finding of fact in the matter. Their finding of fact is not ordinarily liable to interference in the Constitutional jurisdiction.
22. Every P.T.O. And P.T.D. Has as its foundation an entitlement order passed by a competent authority.
23. Whenever grievance is being made with regard to the P.T.O. Or P.T.D. By reference to the entitlement order, then it is for the Settlement Authorities and none else to see that there is no incongruity or inconsistency between the two. In the case in hand, the case before the Settlement Authorities showed that Khalil had applied only for the transfer of a shop and had been allowed the transfer of a shop only in October, 1958 of which rent after deducting rebate was assessed at 9.50 per month.
24. There was evidence to show that from March, 1951 till 1955 he had been prosecuted a number of times for constructing unauthorisedly a Chaubara on his shop. He had been convicted. The construction was ordered to be demolished. Evidently the Settlement Authorities did not take note of such a Chaubara and the rights arising thereunder. The entitlement order passed by the Settlement Authorities in favour of respondent No,1 or the other occupants of the shop did not show that the interest of Khalil extended to any other property. In this background the Settlement Authorities could justifiably hold that the unauthorised Chaubara, even if in existence, could not be made the basis for claiming of division of the property and no such division had been made so as to curtail the rights of the other occupants of the shop in respect of the roof over their shop. This finding recorded by the Settlement Authorities which is just and proper and is in accord with the material on record and consistent with the law, was not liable to interference in the Constitutional jurisdiction merely on the ground that P.T.D. Had issued and it enjoyed immunity as such.
25. ' The appeal is accepted with costs. The judgment of the High Court is set aside and that of the Settlement Commissioner restored.