AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 5-4- 1983 passed by a Division Bench of the High Court of Sindh in L.P.A. No.182 of 1971, filed by the appellant, dismissing the same and maintaining the judgment dated 5-10-1971 passed by a learned Single Judge of the said High Court in Writ Petition No.230 of 1966, filed by the appellant against the cancellation of the transfer in respect of House No. A/622, Tando Wali Muhammad, Hyderabad, hereinafter referred to as the house. Leave was granted to consider the questions, whether transfer in favour of the appellant in respect of the house could be cancelled on the ground of non-payment of transfer price within one week in presence of para 32 of the Settlement Scheme No.1, hereinafter referred to as the Scheme, which provided a contrary mode of payment, namely, by instalments; and whether the transfer could be cancelled from the name of the appellant or could the house be transferred in favour of respondent No.4 without complying with the procedure provided in para. 35 of the Scheme.
2. The facts to be noted are that late Ismail, hereinafter referred to as the deceased transferee, who is now represented by the appellants as his legal representatives after his death, hereinafter referred to as the appellants, was transferred the house against NCH Form inasmuch as Appendix- 9 dated 9-11-1959 in the sum of Rs.4,140 was issued in favour of the deceased transferee. It appears that on 12-1-1963 the deceased transferee was called upon through a notice by the Settlement Department to pay the transfer price within a week of the receipt of the notice, failing which it was stated that the case would be consigned to the record. Upon the expiry of about a week of the issuance of the above notice, the transfer in favour of the deceased transferee was cancelled on 7- 2-1963 and the house was transferred to respondent No.4 on 18-2-1963, who later on surrendered his right in the house through an agreement of association in favour of respondent No.5. It appears that in spite of the above cancellation order, the Settlement Department accepted the adjustment of the part of the transfer price from the deceased transferee on 27-2-1963 through compensation book, but on 15-1-1965 the deceased transferee was informed by the Deputy Settlement Commissioner of the area concerned that transfer of the house in his favour was already cancelled on 7-2-1963 and that the same was transferred to respondent No.4 on 18-2-1963. It was the case of the deceased transferee that he came to know about the cancellation of the transfer upon receipt of the above letter from the Deputy Settlement Commissioner. Thereupon, he preferred an appeal before the Additional Settlement Commissioner against the above order of cancellation dated 7- 2-1963. Though the above appeal was quite belated, but the learned Additional Settlement Commissioner allowed the same by his order dated 9-3-1965 on the condition that if the balance of the transfer price would not be paid by the deceased transferee within one week, transfer in his favour would be treated as cancelled and the transfer in favour of respondent No.4 shall stand restored. The operative portion of the order reads as follows:- "I am in agreement with the learned counsel for the respondent that the appeal is barred by time and the transfer of the said house in his favour does not suffer from any legal defect. However, since the appellant is also a displaced person and had applied in NCH Form in time and his application dated 25-1-1963 for allowing two months' time, had not been disposed of, I am of the view that his case also merits sympathetic consideration. I, therefore, take a lenient view and allow the appeal on compassionate grounds and cancel the transfer documents of the said house in favour of the respondent. The appellant's transfer documents are hereby restored and he is directed to pay the balance of the transfer price within a week failing, which the transfer in his favour would be treated as cancelled and the transfer in favour of the respondent restored."
3. It appears that as the deceased transferee did not pay the balance of the transfer price within the above period of one week but deposited on 1-4-1965, the Deputy Settlement Commissioner intimated the deceased transferee that the house stood cancelled from his name on account of non-payment of the balance of transfer price as was directed by the Additional Settlement Commissioner in his above-quoted order dated 9-3-1965. Thereupon, the deceased transferee assailed the above order of the Deputy Settlement Commissioner through an appeal unsuccessfully before the Additional Settlement Commissioner and then through a revision before the Settlement Commissioner. After that, he filed the aforesaid Constitution petition, which was dismissed by the learned Single Judge in chambers by his aforesaid order dated 5-10-1971. The Letters Patent Appeal filed against the above judgment also failed through the judgment under appeal. The operative portion of the judgment reads as follows:- "It is not disputed before us that the order of Additional Settlement Commissioner dated 9-3-1965 was not challenged by the appellant any further and therefore, the appellant cannot now take the plea that the order was bad in law or passed without jurisdiction. The subsequent cancellation of the transfer in favour of the appellant proceeded entirely on the basis of the order dated 9-3-1965, and it is not disputed before us that he transfer price as directed in. The order dated 9-3-1965, was not deposited by the appellant. In these circumstances, the appellant cannot make any grievance with regard to cancellation of the transfer of the property in his favour. The learned Single Judge found that the appellant was aware of the order dated 9-3-1965 but failed to pay the transfer price as directed. This finding of the learned Single Judge is unexceptionable.
We agree with the learned Single Judge that no case for interference is made out, even otherwise the conduct of the appellant in his case was highly negligent. The appeal is accordingly dismissed but there will be no order as to costs."
Against the above judgment, the appellants filed a petition for leave, which was granted to consider the above questions.
4. In support of the above appeal, Mr. S.M. Abbas, learned A.O.R. Appearing for the appellants, has vehemently urged that the original order dated 12-1-1963 demanding the payment of the price within a week and also the order of the Additional Settlement Commissioner dated 9-3-1965 granting one week's time, were void being contrary to paras 29, 32, 34 and 35 of the Scheme. His further submission was that, in any case, the appellant had deposited the balance of the price within a week after coming to know about the above Additional Settlement Commissioner---s order dated 9-3-1965 and, therefore, there was no justification to treat the transfer of the house in favour of the appellant as cancelled.
On the other hand, M/s. Nasrullah Awan and RA. Qureshi, learned counsel for the respondents, have urged that the appellants cannot press into service the provisions of the above paras as admittedly the transfer was cancelled after the expiry of more than three years from the date of transfer and, therefore, even the period during which the appellants could pay the price, namely, 12 months mentioned in para 32 of the Scheme, had expired. Their further submission was that, in any case, the appellants having failed to file any appeal against the above order of the Additional Settlement Commissioner dated 9-3-1965, cannot agitate the above question.
5. Adverting to the above first submission of Mr. S.M. Abbas that the original order dated 12-1-1963 demanding the payment of the price within a week and also the order of the Additional Settlement Commissioner dated 9-3-1965 granting one week's time, were void being contrary to paras 29, 32, 34 and 35 of the Scheme, it may be observed that it is true that under sub-para (3) of para 29 of the Scheme, the Deputy Settlement Commissioner was required to fix the amount of instalment to be paid in cash if full price was not adjusted against the compensation book. It is also true that under para 32, the transfer price, settlement fee and public dues which were to be paid by a non- claimant displaced person or local, could be paid either through adjustment in compensation books of associating claimants or in cash in 12 equal monthly instalments, whereas para. 35 provided the procedure for ejectment for default in payment of two consecutive instalments.
However, in our view, the above paras cannot be pressed into service by the appellants as admittedly in spite of the expiry of more than three years, the appellant had not paid the price of the house to the Settlement Department. If the transfer in favour of the appellants would have been cancelled within a period of twelve months which was the period available under para 32 of the Scheme to the appellant for payment of the price in instalments as a non-- claimant, they could have legitimate grievance to agitate, which is not the case as pointed out hereinabove. In this regard, reference may be made to the case of Irfanullah Khan and another v. The Chief Settlement Commissioner, Lahore and another (PLD 1967 SC 428), in which this Court inter alia held that the transferees by their conduct having exhibited no anxiety whatsoever to make good the payments which were due from them and which they expressly admitted to be due, are estopped from setting up plea that one of them, being claimant, should have been allowed to pay in a more relaxed form. Keeping in view the above ratio decidendi, it cannot be urged that the conclusion arrived at by the learned Single Judge in chamber and the learned Judges of the Division Bench that the appellants cannot make grievance of the above order dated 9-3-1965 passed by the Additional Settlement Commissioner setting aside the cancellation order and providing one week's time to the appellants to pay the balance price after having failed to file any appeal, is not warranted.
6. As regards the above second submission of Mr. S.M. Abbas that, in any case, the appellant had deposited the balance of the price within a week after coming to know about the above Additional Settlement Commissioner's order dated 9-3-1965 and, therefore, there was no justification to treat the transfer of the house in favour of the appellant as cancelled, it may be observed that the learned Single Judge in chambers found that the appellant was aware of the aforesaid order dated 9.3-1965, which finding has been concurred with by the learned Judges of the Division Bench and, therefore, the appellant's above contention is not tenable in view of the above concurrent finding of fact. The appeal has, therefore, no merits and hence it is dismissed, but, there will be no order as to costs.