ALI HUSSAIN QAZILBASH, J.---This appeal by leave arises from the judgment of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 16-6-1986.
2. The facts briefly are that the property in dispute was transferred by the Deputy Settlement Commissioner, Jhelum in favour of the appellant on 24-5-1961 and a P.T.O. Was issued to him on 3- 4-1962. As per the demand notice to deposit the transfer price amounting to Rs.40,626 the appellant deposited the same through a deed of association and a P.T.D. Was issued to him on 6- 4-1964. The property was in possession of respondent No.3 who was asked to deliver its possession but instead he submitted a complaint to the Settlement Commissioner Rawalpindi (notified officer) on 5-1-1976 alleging therein that the P.T.D. Issued to the appellant was not genuine. The possession of the said property was, however, delivered to the appellant by the said respondent as per a deed of agreement dated 12-4-1976. The appellant then raised a number of constructions over the suit property. In the meantime, the Deputy Settlement Commissioner proceeded with the application submitted by the respondent No.3 and on 10-2-1977 submitted a report to the Additional Settlement Commissioner that the PTO and PTD issued in the name of appellant were not genuine.
The Additional Settlement Commissioner on 25-4-1977 heard the appellant, held that the transfer being bogus was liable to be cancelled under the law and the Deputy Settlement Commissioner Jhelum was directed to proceed with the matter as required under the instructions/rules on the subject.
3. The above order was challenged by the appellant in a writ petition where respondent No.4 also submitted an application for impleading him as party to the petition which was allowed and similarly, respondents Nos.5 and 6 were also arrayed as respondents. The writ petition was ultimately allowed, the order of the Additional Settlement Commissioner set aside, and the case remanded back to the notified officer to look into the evidence and decide the rights of the parties in accordance with law.
4. Leave in This case was granted to examine the correctness and legality of the order of the learned Judge, dated 16-6-1986.
5. We have heard the learned counsel for the parties at considerable length and have gone through the record of the case. The learned Single Judge has examined the case thoroughly and according to him the remand of the case was necessary to the notified officer to determine:-- "(1) Whether Khasra No.1586 measuring 6 Kanals 2 Marlas, held by Muslim occupancy tenants owned by Suraj Parkash, evacuee was transferable as a building site under Displaced Persons (Compensation and Rehabilitation) Act, 1958, to Kh. Muhammad Bashir. (2) Whether Kh. Mehmood alongwith ownership rights had also transferred his share in occupancy tenancy to Suraj Parkash vide registered sale deed dated 20-11-1945 and its effects on the rights of the other two Muslim occupancy tenants. (3) Whether suit land which was shown as `maira' and also assessed to land revenue in the special Jamabandi was agricultural land and could be transferred as a building site and (4) whether transfer of property in dispute in the name of Kh. Bashir Ahmed was tainted with fraud i.e. The papers were ante-dated and smuggled into settlement file.
For the proper and satisfactory decision of the aforenoted points, the required material is not available on record nor has the Court below approached the issue in dispute from the aforesaid angle. It had simply confined its attention to the fact that the transfer documents were ungenuine and also spurious. It had not taken the trouble of looking into the revenue papers to see whether the property in dispute could at all be transferred as building site when it was shown as agricultural land in the special Jamabandi and rights of Muslim occupancy tenants were also involved. To my mind, the dispute between the parties has not been correctly and satisfactorily resolved and some of the basic issues touching the very jurisdiction of the settlement authorities to transfer property did not receive adequate attention. In case, as was urged on behalf of the respondents, the property in dispute was held by Muslim occupancy tenants, it could not be transferred at all.
Therefore, it is not the issue of fraud alone, but the question of transferability of the property in dispute as also rights of Muslim occupancy tenants were involved. It may be noticed that if it was found that transfer documents are forged and had not been issued but papers were smuggled into the settlement file as reported by Deputy Settlement Commissioner to Additional Settlement Commissioner, it can then be safely assumed that property in dispute had not all been disposed of and therefore, could be treated as available property."
6. The remand ordered by the learned Single Judge has been vehemently decried by the learned counsel for the appellant. He contended that the property stood transferred to him in 1964 and PTD had already been issued in his favour. He got its possession and raised a number of constructions over the same with the permission of the Municipal Committee and for 11 long years nobody questioned his ownership and it was only in 1975 when an application was made by respondent No.3 to the Settlement Commissioner (notified officer) questioning the validity of the transfer. He further submitted that Evacuee Laws have been repeated through Act XIV of 1975 and since this case was not pending before any authority, the notified officer had no jurisdiction to take cognizance of and adjudicate upon the matter and similarly the learned Judge has acted in excess of his jurisdiction in remanding the case to the notified officer. As against the above the learned counsel for the respondents vehemently contended that since the whole transaction was based on fraud and misrepresentation the learned Judge was fully, justified in. Remanding the case for proper enquiry to the notified officer.
7. As per his case, undoubtedly the property was transferred to the appellant in 1964 who after depositing the transfer price secured the P.T.D. The transfer thus attained finality. Evacuee laws were repealed by Act XIV of 1975 which came into force on 28th of January, 1975. Subsection (2) of section 2 lays down:- "(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to another such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."
7. On 28-1-1975 the present case was neither pending before any of the settlement authorities nor remanded by the High Court or the Supreme Court. Therefore, the Settlement Commissioner (notified officer) had no jurisdiction, whatsoever, to reopen the transaction which was past and closed. Similarly, the learned Judge also could not remand the case to the same authority for any decision. Reliance in this respect is placed on the case of Raja Hassan Akhtar and others v. Akbar Khan and others (1981 SCMR 503).
8. The appeal is thus allowed. The order of the High Court and that of the Notified Officer Rawalpindi dated 3-5-1977 are set aside with no order as to costs. The aggrieved persons may move the Civil Court to seek their redress, if so advised.