1. ' NAIMUDDIN, J.--Muhammad Shafi, the appellant claims to be a displaced person being a refugee from village Malookanawala in the occupied part of Jammu and Kashmir State. He is in possession of a portion of House No,9/361, Gujrat City, which was allotted to him on 31-10-1955. He applied for its transfer on KNCH Form which remained pending. Meanwhile in 1960, Sardar Noor Ahmad the respondent No,1 also applied on KNCH Form for transfer of the house, a portion whereof according to the Deputy Settlement Commissioner he most probably occupied sometime in 1960. On coming to know the transfer of the house to Sardar Noor Ahmad, Muhammad Shafi filed an appeal with the Additional Settlement Commissioner, Rawalpindi, who dismissed the same, as being time-barred by the order dated 24-7-1964. In revision against the said order before the Additional District Judge with the powers of Settlement Commissioner, Gujrat, Muhammad Shafi, however, partly succeeded as the learned Additional District Judge by the order dated 8-2-1965, set aside the orders of the Deputy Settlement Commissioner as well as the Additional Settlement Commissioner and remanded the case to the Deputy Settlement Commissioner with the direction for making a fresh inquiry for determining the entitlement of the respective applicants. He also directed the Deputy Settlement Commissioner to enquire if Muhammad Shafi had already been transferred any other property, if so with what effect upon his claim to the house and also to enquire whether any expenses had been incurred by Sardar Noor Ahmad.
2. ' On remand the Deputy Settlement Commissioner vide his order dated 23-2-1965, held that he had no jurisdiction to open the case of transfer of the property as PTD had already been issued in respect of the same. Again as appeal was preferred from this order with the Additional Settlement Commissioner who accepted the same holding that the previous transfer orders passed by the Deputy Settlement Commissioner and confirmed by the Additional Settlement Commissioner were set aside and the very basis of the issuance of PTD had disappeared and accordingly remanded the case to the Deputy Settlement Commissioner for disposal in the light of the directions given by the Settlement Commissioner, Gujrat by the order dated 8-2-1965.
3. ' After hearing both the parties and considering the evidence produced by them he came to the conclusion that "all the official records go to prove that Sardar Noor Ahmad was not in physical possession of the property on 20-12-1958. Hence legally he was not eligible to file any Form for the transfer of the property." He further held that Muhammad Shafi being the regular allottee with prior possession had preferential right over Sardar Noor Ahmad who was in unauthorised occupation of the same. Regarding the transfer of other property to Muhammad Shafi he found that he did not obtain any other property on C.H. Form except a shop to which he was entitled in addition to a house. He added that Muhammad Shafi had also purchased other property in open auction or through association which did not debar him under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, from claiming the house in dispute. Regarding the money spent on repairs the matter was left for determination by some engineer of local body etc. And compensation was ordered to be determined on that basis. Before him, however, for the first time, a new point was raised that Muhammad Shafi was a local and not a refugee from the territory occupied by India. He also received evidence on this point produced by both the parties and basing his finding on the certificate of nationality (Exh.R/2) issued in favour of Muhammad Shafi and the list of elected members of Azad Jammu and Kashmir State Council (Exh.P/B) and the printed copy of the minutes of the opening session of the State Council of Azad Jammu and Kashmir Government (Exh.P/A.) which shows that Muhammad Shafi took part in the election on behalf of the refugees from occupied Jammu and Kashmir and also the Electoral Roll of theState Assembly where his name is mentioned as voter, came to the conclusion that he was a refugee from the territory of Jammu and Kashmir occupied by India. In the face of the aforesaid reliable documentary evidence the Deputy Settlement Commissioner did not accept the oral evidence produced by Sardar Noor Ahmad or the certificate issued by the Deputy Commissioner, Mirpur to the effect that Muhammad Shafi was a resident of Azad Jammu and Kashmir and not a refugee for cogent reasons stated in the order. He, therefore, ordered transfer of the house to Muhammad Shafi on usual terms. This time Sardar Noor Ahmad filed an appeal with the Additional Settlement and Rehabilitation Commissioner but failed.
4. ' On revision, however, the finding of the Deputy Settlement Commissioner on the status of Muhammad Shafi was upset as the learned Settlement and Rehabilitation Commissioner was of the view that the appellant hailed from Vitala, which was part of Azad Jammu and Kashmir and observed that Muhammad Shafi had attempted to show himself, in his KNCH Form, as hailing from Deva Vitala, which formed part of Occupied Jammu and Kashmir by subsequently adding the word "Deva" before the word "Vitala" because the two words written in the form were in different inks.
5. ' Muhammad Shafi challenged the order of Settlement Commissioner in writ petition filed in Lahore High Court but failed because High Court did not interfere with the finding of fact given by the Settlement Commissioner that was a local and P.T.D. Had already been issued. Leave was granted to consider the effect of the Azad Jammu and Kashmir Legislation and Representation Act, 1960 (Act XIII of 1960) and the definition of the word "refugee" given therein and the Gazette notification wherein the names of the elected Members of the Council of Azad Jammu and Kashmir have been notified in pursuance of the election held under the aforesaid Act wherein Muhammad Shafi is shown as elected from the Constituency "Refugee from Jammu Province".
6. ' We have heard Ch. Khalilur Rehman, for the appellant and MrAbdul Waheed Butt for the respondents.
7. ' After hearing both the counsel we allow leave and convert this petition into appeal and allow the same with no order as to costs.
8. The main reason which weighed with the Settlement and Rehabilitation Commissioner, Rawalpindi, respondent No,2 was that Muhammad Shafi was a local and not a refugee from the occupied territory but this finding is against the overwhelming and reliable documentary evidence, namely,
(1) the allotment order dated 3-10-1085, which shows him a refugee from Jammu, (2) the Gazette Extraordinary issued by the Government of the Azad Jammu and Kashmir State dated 12-12-1961 which shows him at serial No,3 as having been elected to State Council from the Constituency of refugees from Jammu Province, securing 67 votes, (3) the certificate of nationality issued in his favour (Exh.R/2), (4) printed copy of the minutes of the opening session of the State Council of Azad Jammu and Kashmir which shows that he took part in the election on behalf of the refugees of Occupied Jammu and Kashmir. The finding that the word "Deva" was added before the word "Vitala" subsequently is based on no conclusive evidence. It is rather based on conjecture for the two words "Deva Vitala" are written in the same handwriting. Certificate issued by the Deputy Commissioner, Mirpur (Exh.R/1) which was not relied on by the Deputy Settlement Commissioner for cogent reason has been relied on by the Settlement Commissioner but is not of much value in the face of overwhelming other reliable documentary evidence. We think that if Muhammad Shafi was not a refugee from occupied territory of Jammu he would not have been allowed to contest the election to the State Council by rival candidates without objection to that effect. The High Court also erred in not fully considering the overwhelming evidence which was available on record and not giving due weight to it. It also erred in holding that once the P.T.D. Was issued the Settlement Authorities were functus officio. In the present case the petitioner's form was pending when the PTD was issued. Therefore, no PTD could be issued to Sardar Noor Ahmad without first disposing of the form of Muhammad Shafi. Reliance is placed on Muhammad Hafcez and another v. Khan Saeed- ud-Din Khan and another (1973 SCMR 8), wherein Waheeduddin Ahmad, J, who wrote the opinion of this Court observed as follows: "In support of his contention, the learned Advocate-on-Record, relied on SAnwar Hussain Sani v.
9. Sarfraz Ahmad and others (PLD 1971 SC 669) and Mst. Hajiani Fatima and others v. Ibrahim and others (PLD 1972 Kar. 610). The contention of the learned counsel has not impressed us because when the P.T.D. Was issued to the appellants, the appeal of the respondent No,2 was pending for hearing and it was dismissed on the 30th May, 1962. The respondent No,2 filed the revision petition on the 18th June, 1962 well within time and, therefore, P.T.D. Was issued subject to the result of the revision petition. The definition of the final order in P.T.D. Rules also shows that it is subject to the appeal and revision filed by a party. In these circumstances, it cannot be held that the P.T.D. Issued in favour of the appellants was immune from attack and was not subject to the appeal and revision filed by respondent No,2. The facts of the present case clearly show that the P.T.D. Was issued during the pendency of the appeal and, therefore, permanent transfer in favour of the appellants was pendente lite."
10. ' In Muhammad Ismail v. Settlement Commissioner (1973 SCMR 407), it was contended that the High Court had failed to consider that the issuance of the P.T.D. Deprived the Settlement Authorities of any further jurisdiction as the property thereafter went out of the compensation pool, but this contention was repelled on the ground that the order for the issuance of the permanent transfer deed was still subject to appeal and revision in accordance with the provisions of the Act, 1958. In Muhammad Rashid Khan v. Saeed Akhtar (1987 SCMR 441) and Inayat Bibi v. Umar Din (1978 SCMR 163), the view was reiterated.
11. We, therefore, set aside the orders of Settlement Commissioner and the High Court and restore that of the Deputy Settlement Commissioner dated 24-11-1965, and direct that it shall be implemented.
12. The parties shall bear their own costs.