ABDUL SHAKURUL SALAM, J.--Dispute relates to property No,8/586 situate in Mohallah Sarai Bhabhria, Sialkot.
2. In a Civil Suit No,156 of 1943 for possession by partition of 44/96 share of the house described in the plaint and demarcated in the site plan attached with the plaint filed on 5-3-1943, the learned Civil Judge Sialkot vide judgment dated 29-3-1944, granted a preliminary decree for possession of the share of the plaintiffs in the said suit. Muhammad Din as well as Diwan Chand evacuee and other Muslim owners were parties to this suit as defendants. Ultimately on deposit of Rs,4,496-8-6 the entire house came to be owned by Muhammad Din per order of the learned Civil Judge, Sialkot dated 11-11-1944. It was accepted before the learned single Judge that the property in dispute now is the same as covered by the Civil Court decree.
3. Occupant of the adjacent house-property No,8/587, Muhammad Shafi applied for transfer of the disputed house to the Settlement Authority in the year 1959. The Settlement Inspector submitted a report to the effect that "there is a vacant site adjacent to House No,8/584-85 and it appears that during disturbances due to fire or otherwise the site has been rendered without any structure; that the same has not been entered in the record of the Department; that this khola is in possession of Muhammad Shafi displaced person without any allotment permit." In these proceedings Muhammad Sarwar son of Muhammad Din, respondent No,1, produced the copy of the judgment of the Civil Court in support of the claim that the property was owned by his father. The Assistant Settlement and Rehabilitation Commissioner, Sialkot, after hearing the parties, vide order dated 16- 10-1959 refused to bring the property on the record of the Rehabilitation Department. Despite this order, the property was put to auction on 2-6-1965 and purchased by Amiruddin brother of the aforementioned Muhammad Shafi for a sum of Rs,4000. Amiruddin surrendered his rights in favour of his son Abdul Ghafoor who obtained PTD. On 19-8-1968, Muhammad Sarwar as an attorney of his father Muhammad Din filed an application before the Settlement Authorities that the property was not evacuee and was owned by his father since the decree of the Civil Court dated 11-11-1944, and that the auction of the property as evacuee was fraudulent altogether. On this application, the Settlement Inspector reported on 27-8-1968 that despite the order dated 16-10-1959 of the then Assistant Settlement and Rehabilitation Commissioner holding that the property in question was Muslim-owned property, it was auctioned on 2-5-1965, and was purchased by Amiruddin. He opined that in view of the decision of the Civil Court and order of the Assistant Settlement and Rehabilitation Commissioner dated 16-10-1959, the auction was void as the property in question, did not form part of the compensation pool. The matter having been brought to the notice of the Additional Settlement Commissioner, the Deputy Settlement Commissioner was asked to re- examine the matter. However, the applicant Muhammad Sarwar was informed vide memo dated 26-10-1971 to seek judicial remedy on which he filed a revision petition which was dismissed by an Additional Settlement Commissioner on 19-6-1966. He, therefore, filed Writ Petition No,1077-R of 1976.
It may be recalled that the auction-purchaser Amiruddin had associated with his son Abdul Ghafoor to whom PTD was issued. The latter in his turn sold the property through a registered sale- deed in favour of the initial applicant for transfer, aforementioned Muhammad Shafi's son Gulzar Ahmed on 3-1-1970.
4. The writ petition was taken up and the learned single Judge who after hearing Muhammad Sarwar, who claimed the property on the basis of the Civil Court decree of 1944 and the contesting respondent Gulzar Ahmad who claimed to have purchased the property from the associatee of the auction-purchaser came to the conclusion that the property vested in a Muslim vide judgment and decree of the learned Civil Judge, Sialkot dated 29-3-1944 and having never been brought on the Rehabilitation and Settlement record rather refused to be so brought vide the order of the Assistant Settlement and Rehabilitation Commissioner dated 16-10-1959, could not have been put to auction when it was purchased by Amiruddin on 2-6-1965. Since the property was not evacuee, it was not amenable to be dealt with or transferred by the Settlement authorities. He, therefore, accepted the writ petition vide order dated 8-12-1985.
5. Gulzar Ahmad seeks leave to appeal against the said order of the learned High Court.
6. Contention of the learned counsel for the petitioner is that the petitioner is bona fide purchaser for value from Abdul Ghafoor to whom PTD had been issued in pursuance of the association agreement entered into by him with the auction-purchaser.
7. The learned single Judge has found that the petitioner Gulzar Ahmad is nobody but the son of Muhammad Shafi who had earlier tried to get the property in 1959 and which had been denied by the Assistant Settlement and Rehabilitation Commissioner on 16-10-1959 on the ground that the property could not be brought on the record of the Rehabilitation Department as it vested in a Muslim in view of the decree of the Civil Court, and that he could not have been unaware that it was obtained in auction by his father's brother Amiruddin who had further given it over to his son Abdul Ghafoor from whom the petitioner is said to have purchased the property. Besides this, the crucial point is that the property having vested in a Muslim prior to partition under the judgment and decree of a Civil Court dated 29-3-1944 as affirmed by the order dated 11-11-1944 of the Civil Judge, Sialkot, it was not an evacuee property and was expressly not brought on the record of the Rehabilitation authorities by the Assistant Settlement and Rehabilitation Commissioner, Sialkot vide his order dated 19-10-1959. It could not therefore be to put on the auction list nor sold behind the back of the rightful owner. In the circumstances, the auction was void altogether and, therefore, no rights could flow from such an auction in favour of the petitioner as a vendee. The learned single Judge has dealt with the case thoroughly and come to a correct conclusion.
8. There is no justification whatsoever for interference in the said order and, therefore, the petition for leave to appeal is dismissed.