1. This Civil Revision in directed against the appellate judgment and decree, dated 7-8-1986, of the 1 Additional District Judge, South, Karachi confirming judgment and decree of the trial Court.
2. The facts leading to the filing of the above revision are that the Plaintiff/Respondent No.1 was transferred house bearing No.G/25 corresponding to Municipal No.R.C.5/99 and Custodian No.D.S.IV-189, situated at Virji Compound Barness Street, Karachi, measuring about 63 Sq. Yds., on the basis of possession since 1948 as non-claimant displaced person against his N.C.H. Form No.KYC/F/202/NCH under Settlement Scheme NO.VIIl. It is the case of the respondent No.1 that he made the full payment of the premises and cleared all other public dues and thereafter respondent No.5, issued a P.T.D., dated 4-11-1970 in his favour and verified a site plan on 27-6-1972 and showed an area of 63 sq. Yds. The respondent No.4, then revised the said site plan without jurisdiction vide his order, dated 30-8-1973 and reduced the area of the respondent No.1 from 63 sq.
3. Yards to 48 sq. Yards without refunding the proportionate reduced amount of the deducted area.
4. The respondent No.5 on 7-2-1975 intimated the respondent No.1 on his application that the petitioner had not been transferred the area of the plot which had been excluded from transfer for K.M.C. For widening of the road area. Again on 6-11-1975, the respondent No.5 without jurisdiction and without notice to the respondent No.1 transferred the above excluded portion from the plan of the respondent measuring 14.16 Sq. Yards to the petitioner after surveying and assessing afresh and assigning a new number on the plea that same is not affected under any road widening scheme. The respondent No.1 preferred revision against this order which was decided against him by respondent No.3 on 30-8-1983 and subsequent orders, dated 23-10-1983, 6-11-1975, 19-11-1976 and 30-12-1976 are without any legal authority and jurisdiction and after issuance of P.T.D. To thest respondent No.1 the respondents Nos.2 to 5 had not jurisdiction to cancel it and allot its portion to the petitioner. According to the respondent No.1 his area was cancelled without any notice to him.
5. Further according to the respondent No.1 after issuance of P.T.D. He served the statutory notice on the petitioner to pay him rent and it was only after this notice that collusively the portion was transferred to the petitioner.
6. The respondents 2 to 5 did not contest the suit. The respondent/K.M.C. Was later on substituted by the present respondent No.6. Both of them had denied the case of the respondent No.1. They even did not admit that the excluded portion was reserved for road widening area. The petitioner contested the suit. The petitioner pleaded that he is in occupation of the premises since his childhood and the respondent No.1 by fraudulent means got his portion included in the P.T.D. By producing a false site plan. The petitioner pleaded that when he came to know of this fraud he approached the Settlement Authorities and they after giving full opportunity of hearing of the respondent No.1 transferred an area of about 15 sq. Yards to him. The petitioner defended the actions of the Settlement Authorities to be legal, proper and with jurisdiction. The trial Court framed appropriate issues. The trial Court decided issue No.1 in the negative, issues Nos. 3, 4, 5 and 7 in the affirmative, issue No.6 in the negative. The trial Court found that the area of the premises No.G/25 was 63 sq. Yards. The trial Court decreed the suit. The petitioner went in appeal.
7. The appellate Court affirmed the judgment of the trial Court. The appellate Court found that P.T.D.
8. Was issued in 1976 as such the Settlement Authorities had no jurisdiction to issue fresh P.T.D. The respondent No.1 was not heard and no opportunity was provided to him while passing order, date.
9. 23-10-1973. He held that the order passed by the Settlement Authorities was illegal, void and bad in law. The petitioner being aggrieved has filed the present revision.
10. Mr. Syed Izhar Haider Rizvi, the learned counsel for the petitioner contended that it is not a case of amending P.T.D. But it is a case of rectification of mistake apparent on the face of record. His submission is that the Civil Court is competent to revise the findings of the Settlement Authorities.
11. According to him the Civil Court has no jurisdiction to re-open the matter.
12. On the other hand Mr. Abdul Wahab learned counsel for the respondent No.1 submitted that the findings of the Courts below are in accordance with the record.
13. Reverting to the first contention of the learned counsel for the petitioner that it is not a case of amending P.T.D. But it is a case of rectification of mistake apparent on the fact of the record. It is not in dispute that the first respondent file N.C.H. Form bearing No.KYC/F/202 for transfer of tenement of G/25 under Settlement Scheme No.VIII.
14. This tenement was transferred vide order, dated 3-10-1970. P.T.D. Was accordingly issued on 4-11- 1970 after payment of full transfer price and the other public dues. 1t is also not in dispute that on 22-6-1972 the first respondent filed a site plan showing the total area of 63 sq. Yards which was verified on the basis of joint plan on the entire plot wherein the area of tenement No.G/25 was also mentioned to be 63 sq. Yards.
15. It is also not in dispute that the petitioner filed an application, dated 6-7-1972 for transfer of accommodation in his possession. A perusal of order, dated 4-4-1973 (Exh.27) would show that the petitioner is living in room (own constructed) since year 1947 which is adjacent to tenement No.G/25. The said room still unsurveyed according to custodian record. The order would show that the Deputy Settlement Commissioner inspected the site on 22-11-1972 in the presence of the parties and found that the petitioner is in occupation of an area of 14.16 sq. Yards. He also found that it is an independent unit and is not part and parcel of tenement No.G/25 transferred to the first respondent.
16. The petitioner filed revision application under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The Additional Settlement Commissioner (Judicial)
17. Karachi held in his order, dated 30-8-1973 that the request for transfer of area in possession of the petitioner could not be considered as the same had been included in the widening of the existing road by K.M.C. Lie ordered that the area in possession of first respondent be excluded from the plan of the first respondent and the amount if any recovered for this area be refunded to-him.
18. The petitioner moved an application on 12-7-1975 before the Deputy Settlement Commissioner stating therein that his previous application was f pending since 1972 and praying that the premises in his possession he transferred to him, The Deputy Settlement Commissioner transferred an area bearing No. R.C.5/99to the petitioner vide order, dated 6-11-1975. The first respondent filed revision before the Settlement Commissioner, Sind on 20-10-1976. The Settlement Commissioner found that the Additional Settlement Commissioner by order, dated 3-10-1973 clarified that the area transferred to the first respondent was 48.55 sq. Yards and that of the petitioner was 14.16 sq.
19. Yards. He also found that the plan on these terms was prepared which was signed by both the parties. He also found that the application, dated 6-7-1972 presumably treated an application under Scheme No.VIII and it was rightly done so. He held that the first respondent was not entitled to challenge the transfer made in favour of first respondent.
20. I am of the view that in deciding the present case the Senior Civil Judge and the 1st Additional District Judge, South, Karachi appear to have entirely misunderstood the position of the area in dispute, to have ignored the custodian record dealing with the premises. A perusal of order of the Deputy Settlement Commissioner, dated 22-11-1972 shows that the premises m dispute was unsurveyed in the Custodian record. It ought to have been summoned for the purpose of verification whether the area remained unsurveyed in the Custodian. If so what was its effeca. They have acted with material irregularity in the disposal of the case and to have failed to consider whether the premises in suit were part of the area of the first respondent. A perusal of order, dated 30-8-73 would show that the first respondent was heard by the Additional Settlement Commissioner (Judicial). There is nothing on record to show as to whether the first respondent filed any proceeding against the order, dated 30-8-1973. These omissions and assumptions constitute, in my opinion material irregularity within the terms of section 115 of the Code of Civil Procedure and without expressing any opinion on the merits, I am satisfied that this suit was not properly tried and that retrial is necessary.
21. I allow the petition, set aside the judgment and decree of 1st Additional District Court and the Senior Civil Judge, and remand this suit to the Court of V1th Senior Civil Judge, Karachi (South) for retrial.
22. The parties are directed to appear before the trial Court on 4-2-1989. The parties are at liberty to adduce evidence apart from summoning the record of Custodian and relevant record from Settlement Authorities.
23. Any proceedings in execution now pending go with the decree and arc j; dismissed. Costs of this Court will be costs in the cause.
24. The trial Court is directed to dispose of the suit within four months from 4-2-1989.