MUHAMMAD GUL, J.-A mosque known as Masjid Muhajrin was built unauthorizedly on evacuee plot bearing Khasra No. 1131, Amrit Road/Sanda Road, Krishan Nagar, Lahore. Later, the plot was transferred to its Managing Committee (petitioner herein) under the Religious Institutions Scheme, introduced under Act XXVIII of 1958. Opposite to the mosque, across 30 feet wide metalled road, there is another evacuee plot bearing Khasra No. 1134 measuring about 16 marlas which stands transferred to Mst. Zainab Bibi, respondent No. 1 herein under Scheme No. VI on 22-8-1960.
2. The dispute in the instant litigation is confined to about seven marlas comprised in Khasra No. 1134 and hereinafter called the site in dispute. The petitioner-committee had initially applied for the transfer of the entire Khasra No. 113 4 basing its claim on the premise that this was being used for the residence of the Imam and therefore was appurtenant to Khasra No. 1131 over which the Masjid had been constructed. But in the meantime, the entire Khasra No. 1134, had already been transferred to respondent No. 1 who incidentally was its allottee along with her son and the sole applicant for its transfer. Thereafter a new Scheme called the Religious Institutions Scheme was introduced on 16-5-1961 arid the petitioner-committee applied again on 15-6-1961 under new scheme for the transfer of the entire Khasra No. 1 134. The Settlement Authorities after contentious proceedings at various levels finally rejected the application of the petitioner- committee, because the entire Khasra No. 1134 already stood transferred to respondent No. 1. Petitioner-committee moved Writ Petition No. 887/R of 1362, which was dismissed. In the writ petition, the main ground urged by the petitioner-committee was that it had been waiting for introduction of the Religious Institutions Scheme, which was then in the of and mote beneficial and therefore, it did not apply under Scheme No. Vi. The learned Single .Fudge, however, held that the Religious Institution-, Scheme which was brought in force on 16-5-1961 could not operate retrospectively so as to undo the transfer in favour of respondent No. 1, under Scheme No .VI, which had since become final. It was also held that the petitioner-- committee had no locus standi to challenge the transfer in favour of respon--dent No. 1 because at the relevant time, the committee was not an applicant for the transfer of the Khasra No. 11 34 under Scheme No. VI. Letters Patent Appeal No. 323 of 1964, having been dismissed. Civil Petition for Special Leave to Appeal No. 20% of 1964 in this Court in which the main ground urged, was that on the date when the Religious Institutions Scheme came into force no PTD or P T O had issued in favour of respondent No. 1, and therefore, the entire Khasra No. 1134 still remained in the compensation pool to be available for transfer under any appropriate scheme. Further that the transfer in favour of respondent No. 1 offended against the requirement of Scheme No. VI, which invalidated the transfer ab initio. It was also urged that there being built two kothas with a kitchen for the Imam, the entire plot became appurtenant to the mosque, and therefore, became Waqf property being used for religious purposes. These contentions were repelled by this Court by the following observations :-- "We are unable, however, to accept any of these contentions. This property is an independent plot in no way connected with plot No. 1131, of which the mosque has been constructed, The respondent No. 3 applied for the transfer of this plot under Settlement Scheme No. VI on the 20th May 1960, after getting the delay making the application condoned by the Chief Settlement Commissioner. Lahore.
The transfer was made in her favour by a Plot 11 Committee consisting of two members, namely, the Deputy Settlement Commissioner and the Additional Settlement Commissioner. This order was not challenged by any person either in appeal or in revision within the period prescribed for the same. The order, therefore, inaccordance with the provisions of the Displaced Persons (Compensa- -petition and Rehabilitation) Act, 1958, became final. One Sana Ullah claiming to be a representative of the petitioner applied for the transfer of the said plot on the l 7th of October, 1960, after the transfer in favour of respondent No. 3. This application was filed, as the premises had already been transferred. He then made belated attempt to challenge the order of transfer in favour of respondent No. 3 by preferring an appeal on the 20th of January, 1962.------------------ ------------------------------- This appeal was, however, withdrawn and dismissed on the 24th of March 1962. It is clear from these facts, therefore, that these latter steps were taken only after the new scheme for the transfer of evacuee properties used as mosques or religious institutions had been formulated its May. 1971. But we are in agreement with the High Court that this scheme did not affect evacuee properties which had already teen lawfully transferred in accordance with the earlier schemes framed under the provisions of the Act of 1958. The finality that attached to the orders competently made by the Settlement Authorities under the Act could not be challenged by this indirect method. What the petitioner sought by these proceedings is really to have indirectly reopened the order of transfer in favour of the respondent No, 3 which had become final on the 27th of August 1960."
3. Undeterred by its failure in the first round of litigation for the transfer of entire Khasra No. 1134, the petitioner-committee acting through its President Sana Ullah Bhatti, who incidentally throughout represented the Committee in the first round of litigation, claims the transfer of the site in dispute under Scheme No. VI, over which stands the structure for the residence of Imam. Because of the decisions in the first round of litigation, the Settlement Authorities have rejected the Committee's claim for seven marlas in dispute, Its Writ Petition No. 725/R of 1971 was dismissed on merits and also on the ground that the matter stood concluded by the decision in the previous litigation. Its Letters Patent Appeal has similarly been dismissed.
4. In this petition for special leave the committee's president who appeared in petitionerhas filed written argument, in an endeavour to Circum--vent the decision in the round of litigation. The following points are canvassed.---
(i) The Imam's house, now described as "house-cum-maktab" was built on the area in dispute contemporaneously with the mosque in 1947. However, no application for the transfer of the Area in dispute was made because no scheme providing for the transfer of building sites for Religious Institutions had been introduced by then.
(ii) Even when Scheme No. VI was introduced, the petitioner-committee did not press its claim under that scheme, because it thought that the Religious Institutions Scheme which was then in the offing wasmore beneficial financially.
(iii) The transfer of the site in dispute to respondent No. 1 over which the petitioner-committee had built the house for the Imam was repugnant to the requirements of Scheme No. VI, and, therefore, void ab initio (Mehmooda Tehsin v. Chief Settlement Commissioner PLD 1965 SC 618 at page 622).
(iv) A fortiori transfer of the site in dispute to respondent No. 1 remained a dead letter issuance of P.
T. D. In her favour with regard to the entire Khasra No. 1134 and the decisions in the previous litigation between the parties, notwithstanding."
I do not find substance in any of the above grounds. The dispute with regard to the transfer of the entire Khasra No. 1134, comprehended the site in dispute which stands finally determined at the highest level in favour of respondent No. 1 in the previous round of litigation. To permit it to be re- opened would be an abuse of the process of Court. It will also offend against the principle of res judicata, which equally applies to proceedings in writ jurisdiction. To avoid the bar of res judicata, it is contended that the committee is now claiming transfer of the area in dispute "under a different title" in that the claim now is under Scheme No. VI while in the first round it was under the Religious Institutions Scheme. The argument is entirely fallacious. Until the site in dispute is actually transferred to committee it can claim no inherent title in the site: till then it is merely an applicant for its transfer and will be eligible for its transfer provided it fulfils certain conditions laid down in the relevant scheme.
5. Then, it is incorrect to say that in the previous round of litigation, the petitioner- committee did not claim the transfer of the site under Scheme No. VI. The committee's President in his application dated 15-10-1965 addressed to Deputy Settlement Commissioner (Plots) reproduced the order dated 27-11-1961 by Deputy Settlement Commissioner transferring the site in its favour. Along with the report of Inspector the order reads; Item No. 66, Khasra No. 1134, Area 0-16150.
The above-noted plot has been inspected by me. He has built 3 rooms, pucca, over it and covered with boundary walls. It is being used for house of Imam Masjid and teaching Holy Quran in the premises, -` It is transferable, about 7 marlas, under Scheme VI Rest to be auctioned. Report submitted for orders.
24-11-61(Sd.) Alam Khan.
D. S. E.
27-11-61"(Sd.) Muqarrab Khan.
It is followed by the following averment:- "This order was passed on my application dated 20-11-61 which had been submitted for deletion of the plot from auction list. It may be mentioned that much earlier I had applied for transfer of the plot under Scheme Thus it becomes manifest that the petitioner-committee in the first round of litigations claimed the transfer of the plot under both the Schemes, but pressed its clam under the Religious Institutions Scheme because it was "financially more beneficial". The petitioner having failed to secure the transfer under the Religious Institutions Scheme cannot now be permitted to revive its claim under Scheme No. VI, when the entire Khasra No. 1134 has been transferred to respondent No. 1 and in whose favour P. T. D. Has also issued as far back as 6-11-1965.
6. Reliance on the case of Mehmooda Tahsin for the purpose of the instant case is wholly illusory. It was inter alia held in that case, that paragraph 13 of the Schedule to the Act, "does not exclude cases of encroachment" or persons who did not have a house and were forced to occupy vacant sites and build pucca houses on them. It was only in respect of a person in unauthorized possession of a building site, that this Court held in the precedent case that he was "entitled to the transfer of land in (his) possession which (he) has built upon". In the instant case, the respondent No. 1 and her son secured allotment of the entire Khasra No. 1134 from Deputy Settlement Commissioner vide order dated 22-2-1952 (pp. 75-76 of the paper book). Therefore, the dictum in the precedent case would not extend to the instant case. It merely underlines the enabling character of the provision and says that even a person in unauthorized possession of building site will be eligible for transfer of the area built upon by him. It would be extravagently fanciful to read the precedent case so as to invalidate the completed transaction ex post facto in favour o respondent No. 1 as in the instant case. Lastly, under paragraph (13) of the Schedule to the Act which prescribes the priority of entitlement for the p transfer of building sites, respondent No. 1, as allottee of the Khasra No. 1134 has preferential right, as against the committee who was in unauthorized possession of the site in dispute.
7. Random references in the written arguments to the doctrine of "Istehsan" and Waqf by user for religious purposes" as known to Islamic jurisprudence are entirely out of place. Doctrine of "Istehsan" has never been applied in favour of persons in unauthorized possession of property and then there is no immemorial user of property for religious purposes; the possession of the petitioner-committee partakes of the character of a trespasser
8. I would, therefore, dismiss the petition, as being without merit and at the same time vexatious.