' The dispute in this case relates to property bearing No, T-770/B Kalan Basar, Rawalpindi which was transferred to Muhammad Bashir petitioner and his brother Muhammad Hanif by the Deputy Settlement Commissioner vide order 30th December, 1959. Subsequently, according to Ghulam Sarwar respondent No,1, by virtue of a deed of. Association the two transferees surrendered their rights in his favour. The Deputy Settlement Commissioner on 5th of July, 1966 approved the association. However, Muhammad Bashir petitioner herein on 12-1-1971 filed an application before the Deputy Settlement Commissioner for recall and setting aside of the approval of the deed of association on the ground that he had never associated with Ghulam Sarwar respondent No,1 and it was his brother Muhammad Hanif who had surrendered his 1/2 share in the shop. This application was rejected by the Deputy Settlement Commissioner.
2. Aggrieved by this order an appeal was filed by Muhammad Bashir petitioner which was accepted by Additional Settlement Commissioner on 8th June, 1970 who remanded the case for reconsideration to the Deputy Settlement Commissioner. In the post-remand proceedings the Deputy Settlement Commissioner on 16th November, 1970 came to the conclusion that only Muhammad Hanif had surrendered his 1/2 share in the shop to Ghulam Sarwar. However, an appeal was filed by Ghulam Sarwar which was allowed by Additional Settlement Commissioner on 21st January, 1973. This order was challenged by the petitioner by filing a revision which was accepted by the Settlement Commissioner on 10th of September, 1973 who set aside the order of the Additional Settlement Commissioner and restored that of the Deputy Settlement Commissioner holding that the association was only with respect to 1/2 share in the shop belonging to Muhammad Hanif brother of the petitioner. Thus, ended the litigation between the parties before the Settlement Authorities.
3. This revision petition arises out of a suit for declaration filed by respondent No,1 against the petitioner in the Civil Court wherein he prayed that it be declared that he was the sole and absolute owner of the shop in question and the order passed by the Settlement Commissioner dated 10th of September, 1973 in Settlement Revision No,146 of 1973 was illegal, without jurisdiction and without lawful authority and a nulity in the eyes of law. By way of consequential relief he also prayed for permanent injunction restraining the petitioner from interfering in his possession and ownership.
4. This suit was contested by the petitioner inter alia on the plea that Civil Court had no jurisdiction to try the same. The learned trial Court after framing necessary issues and recording of evidence, vide its judgment dated 21-12-1976 decreed the suit holding that the Deputy Settlement Commissioner after the deletion of Rule 7 from the Permanent Transfer Deeds Rules, 1961 on 27th of December, 1964 had no jurisdiction to cancel the association. This decree was appealed against by the petitioner but his appeal was dismissed by the Additional District Judge, Rawalpindi on 7-5- 1980. Hence this petition.
5. Mr. Bashir Ahmad Ansari, Advocate has explained the main reason which prevailed with the learned Additional District Judge for dismissing the appeal of the petitioner was that as the permanent transfer deed had been issued in favour of respondent No,1 on 3rd July, 1973, the Settlement Commissioner had no jurisdiction to accept the revision filed by the petitioner and therefore, acted illegally in doing so on 10th of September, 1973. The learned counsel contended that as T.O./P.T.D. Was issued during the pendency of the revision petition before the Settlement Commissioner, it had no sanctity.
6. The other ground urged by Mr. Ansari was that the jurisdiction of the Civil Court was in any case barred and as such the suit should have been dismissed on this ground alone. Reliance in this connection was placed upon Sh. Fazal-ur-Rehman v. Pakistan through the Secretary, Ministry of Works and Rehabilitation, Islamabad and others 1987 SCMR 1036. In the last it was maintained that as the order of remand by by the Additional Settlement Commissioner dated 8th June, 1970 was not challenged any further and respondent No,1 had participated in the post-remand proceedings, he could not object to the maintainability of the application filed by the petitioner or the power of the Settlement Authorities to adjudicate upon the same.
6. Mirza Anwar Baig, learned counsel appearing for respondent No,1, has on the other hand, defended the impugned orders and has relied upon a judgment of the Sindh High Court in Tahir Ali v. Federation of Pakistan etc. PLD 1987 Kar. 290 to contend that as respondent No,1 had paid entire price, the P.T.O. Issued in his favour is to be deemed to be the permanent transfer deed with the result that the order of the Deputy Settlement Commissioner refusing to set aside the association dated 13th February, 1970, could not have been appealed against by the petitioner as under the P.T.D. Rules of 1961. The learned counsel has also challenged the assumption of jurisdiction by the Deputy Settlement Commissioner on an application filed by the petitioner.
7. A perusal of the judgments of the Civil Judge as also the District Judge shows that the suit was decreed on two grounds; firstly, that after the deletion of Rule 7 from the P.T.D. Rules, 1961 in the year 1964, there was no jurisdiction left in the Deputy Settlement Commissioner to entertain any application for cancellation of the deed of association and secondly that as the P.T.D. (Ex. P.6) had been issued in favour of the respondent on 3rd of July, 1973, the Settlement Commissioner could not have interfered in revision. However, both these grounds are wholly baseless and absolutely untenable.
8. As regards the first, suffice it to say that by now it is well-settled that even a tribunal of limited jurisdiction has the authority and is competent to recall any order passed by it if it was obtained by fraud or misrepresentation. The authority, if any needed, can be found in the Chief Settlement Commissioner v. Raja Muhammad Fazil Khan and another PLD 1975 SC 331. That being so the application filed by the petitioner before the Deputy Settlement Commissioner was clearly competent.
10. So far as the second ground is concerned, it is unfortunate that both the Courts completely omitted to notice that permanent transfer deed/transfer order was issued at the time when the revision filed by the petitioner against the order of Additional Settlement Commissioner dated 31st of January, 1973 was pending before the Settlement Commissioner. This revision was decided on 10th of December, 1973 while T.O. Was issued on 3rd of September, 1973. There cannot be any dispute and indeed it has not even been contended by Mr. Anwar Baig that a P.T.D. Or T.O. Issued during the pendency of a revision is not immune from challenge. (See Muhammad Hafeez and another v. Khan Saeeduddin Khan and another 1973 SCM R 8, Muhammad Ismail and another v.
Settlement Commissioner and another 1973 SCM R 407). It is thus obvious that the two Courts below grossly erred in holding that the order passed by the Settlement Commissioner accepting the revision of the petitioner on 10th of September, 1973 was without jurisdiction.
11. There is also merit in the contention of the learned counsel for the petitioner that in the circumstances of the case, Civil Courts had no jurisdiction to try the suit which was filed on 25th of October, 1973 in view of sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The Supreme Court of Pakistan, in Sh. Fazal-ur-Rehman v. Pakistan through the Secretary, Ministry of Works and Rehabilitation, Islamabad and others 1987 SCM R 1036 has taken the view that if transfer of evacuee property attains finality before the Settlement authorities, its validity could not be questioned in Civil Courts.
12. As regards the contention of Mr. Anwar Baig, Advocate that the order passed by the Deputy Settlement Commissioner dismissing the application filed by the petitioner on 13th of February, 1970 was not appealable, a reference to section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 would show that any order passed by the Deputy Settlement Commissioner could be subject to appeal before the Additional Settlement Commissioner.
Moreover the order dated 8th June, 1970 whereby the Additional Settlement Commissioner accepted the appeal and remanded the case to the Deputy Settlement Commissioner was never challenged by the respondent any further. Even in the plaint there is no specific prayer that the order dated 8th June, 1970 be declared to be illegal and unlawful. The respondent having participated in post-remand proceedings for a period of about 3 years, had acquiesced in the same and was certainly not entitled to the discretionary relief of declaration and permanent injunction, prayed for.
13. There is no merit in this contention of Mr. Anwar Baig, that under Rule 5 of the Permanent Transfer Deed Rules a right of appeal vests only in the transferee and no other person. As already indicated the question of appeal is governed by section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Rule 5 merely states that if the transferee intended to file an appeal, no amendment in the record shall be made till the matter had been decided by the appellate forum. Even otherwise there can be no dispute that Muhammad Bashir petitioner was one of the original transferees. That being so even on the own showing of the learned counsel, Muhammad Bashir petitioner was entitled to file an appeal.
14. As a result of what has been stated above this petition succeeds, the judgments and decrees of both the Courts below' are set aside and the suit of the respondent is dismissed leaving the parties to bear their own costs.