' Property bearing No.SE-26-R-11 Abbot Road, Lahore, having an area of 16 Kanals 1 Marla 121 Sq.Feet was evacuee in nature and comprised of main bungalow and servant quarters/outhouses. The petitioner as well as Muhammad Ahmad Khan, a claimant displaced person applied for its transfer by filing the requisite forms. The occupants of servant quarters also submitted their applications for the transfer of servant quarters/outhouses.
2. On 18th January, 1960, it was reported to the Deputy Settlement Commissioner by the Assistant Settlement Commissioner Circle-II, Lahore, that the occupants of the main bungalow can be divided into two categories, one of which comprised of the occupants of the servant quarters and the other of the persons residing in the main bungalow which were Ali Nawaz Khan petitioner and Muhammad Ahmad Khan. It was recommended that the bungalow may be transferred to Muhammad Ahmad Khan. On 20th January, 1960, the Deputy Settlement Commissioner passed the following order:-- "I agree with the above report. Bungalow alongwith servant quarters is transferred in favour of Muhammad Ahmad Khan the only claimant in the main building. Forms of Ali Zawaz and other about servant quarters are all rejected."
3. This order was challenged by the petitioner by filing an appeal before the Assistant Settlement Commissioner where the parties arrived at a compromise and filed an application for withdrawal of the appeal and permission to compromise. This application was allowed by the Assistant Settlement Commissioner on 12th March, 1960, who directed the parties to appear before the Deputy. Settlement Commissioner and present a written agreement. In pursuance to this direction, the petitioner and Muhammad Ahmad Khan submitted an application on 6th December, 1960 before the Deputy Settlement Commissioner alongwith an agreement by virtue of which they agreed to divide the bungalow into two portions among themselves. This agreement was accepted by the Deputy Settlement Commissioner on 17th March, 1960 when he directed that P.T.O.
Be issued to the parties under the rules. Subsequently, however, on 6th December, 1960, they presented another application alongwith the agreement showing the division of the property, in the detail which was also reflected in the plan submitted alongwith the application. This agreement of the parties was approved by the Deputy Settlement Commissioner.
4. It may also be mentioned at this stage that one of the occupants of the servant quarters/outhouses agitated against the transfer of the property to the petitioner and Muhammad Ahmad Khan, but he remained unsuccessful all through. He filed Writ Petition No. 602/R/62 in this Court which was dismissed on 4th May, 1962 and so was Letters Patent Appeal No.209/62 on 29th March, 1963.
5. Certain other occupants of the servant quarters/outhouses also filed a joint appeal against the order of the Deputy Settlement Commissioner dated 20th January 1960 but their appeal was dismissed on 10th March, 1960 by filing this constitutional petition.
7. Raja Muhammad Anwar, learned counsel for the petitioner contended that the entire property including the main bungalow and the servant quarters having an area of 17 Kanals 13 Marlas and 121 Sq.Feet stood transferred in favour of the petitioner and his co-transferee Muhammad Ahmad Khan, by the Settlement Authorities much before the repeal of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, and no part of this property was/is available for 'transfer' to any other person. It was emphasized by the learned counsel that the transfer in favour of the petitioner and Muhammad Ahmad Khan had attained finality on account of dismissal of Writ Petition No.1180/R/84 by a Division Bench of this Court on 19th May, 1965 and the Deputy Administrator Residual Properties while proceeding to transfer the servant quarters/outhouses to respondents Nos:2 to 23 has not only acted in excess of its authority but also in violation of the order of the Division Bench and has thus committed contempt of this Court. The learned counsel further pointed out that the impugned order was passed by the Deputy Administrator, without any notice to the petitioner.
8. Ch. Muhammad Farooq, Advocate, appearing on behalf of respondents Nos.2 to 23 submitted that the quarters transferred to these respondents was not part of the property which stood transferred to the petitioner and, therefore, he had no locus standi to challenge the same. Learned Counsel pointed out that the Deputy Settlement Commissioner had, on 20th June, 1980 transferred the property in favour of Muhammad Ahmad Khan, in pursuance to C.H. Form filed by him on the back of which he had clearly indicated that he was not desirous of having servant quarters transferred to him. On these premises, it was submitted that as Muhammad Ahmad Khan from whom the petitioner derived his title has not applied for the transfer of the quarters but on the other hand had indicated his unwillingness to have the same transferred to him, the petitioner could not claim to be the transferee of these quarters. As regard the judgment of the Division Bench, it was submitted that respondents Nos.2 to 23 were not parties to the previous proceedings and for this reason the judgment rendered therein was not binding on them.
9. Learned counsel appearing on behalf of respondent No.1, adopted the arguments of learned counsel for respondents Nos.2 to 23 and submitted that respondent No.1 was justified in transferring the quarters to the petitioner. From the record, particularly the judgment passed by a Division Bench of this Court in Writ Petition No. 1180/R/84 on 19th May, 1965 it becomes clear that the entire property measuring 17 Kanals 13 Marlas 121 Sq.Feet stood transferred to Muhammad Ahmad Khan petitioner. In this judgment, on more than one occasion it was clearly mentioned that the servant quarters also stood transferred to the transferees alongwith the main bungalow. While repelling the contention, that there was any excess area which could not have been transferred to the transferees, it was observed:- "We find that the main house is built on an area of 1 Kanal 16 Marlas and servant quarters on two Kanals. Because we have held that the servant quarters are a part and parcel of the main house, therefore, for purposes of calculating three times the area under construction, the land underneath both the main house and servant quarters has to be taken into consideration and these two items taken together come to 3 Kanals 16 Marlas."
' On these premises it was held:-- "that the total area of the Kothi, as per Revenue Record is 17 Kanals 3 Marlas and 121 Sq.Feet and, therefore, there is no area in excess of the formula of three times of the plinth area, which has been transferred to the respondents. The order of the Chief Settlement Commissioner has been substantially complied with and we do not find any force in this contention."
' Another argument which was noticed and repelled by the Division Bench was:- "It has been lastly contended that although respondent No.3 had been excluded by the Deputy Settlement Commissioner, thereafter he has been given a portion of the property by a mutual agreement between respondents No.2 and 3. It is maintained that since the property has been divided by this device and respondent No.3 has been given the area covered by the servant quarters as a separate tenement, the petitioners have preferential claim in this regard as against respondent No.3. We have already held above that a person in possession of a outhouse cannot claim transfer of the residential premises to which the outhouse is attached and, therefore, if respondents Nos. 2 and 3, both of whom have been held to be in possession of the main house prior to the 20th of December, 1958, have by agreement shared the property in a manner acceptable to both of them, it does not mean that any part of the Kothi has in any manner been transferred as a separate and independent tenement on the basis of possession of these outhouses. The transfer in favour of both the respondents is on the strength of their possession of the main house and, therefore, the petitioners cannot succeed on this ground also."
' In view of these clear findings, it is idle on the part of respondents to contend that the servant quarters were not transferred in the earlier round of litigation. The arguments of the learned counsel for the respondents, in this behalf, unfortunately fail, to take notice of the fact that this Court while dismissing the said writ petition was at pains to mention in detail the measurements of the various parts of the property transferred to the transferees.
10. Even otherwise, there is ample material on the record to show that no part of property No.SE-26- R-11 was available for transfer to respondents Nos. 2 to 23 and respondent No.1 acted clearly in excess of authority in proceeding to transfer the servant quarters to them. It is also important to notice that in para 3 of the written statement filed by respondents Nos. 2 to 23, it has specifically been stated that the outhouses which have been transferred to the petitioner, were on the eastern side of the property which was transferred to Muhammad Ahmad Khan. A perusal of the Permanent Transfer Deed issued to the petitioner, however, shows that by virtue of agreement dated 6th December, 1960, he was transferred the eastern portion of the property and suitable amendment to this effect was ordered to be made in the Permanent Transfer Deed. It is thus clear that the servant quarters/outhouses in possession of the respondents stood transferred to the petitioner and could not have been subsequently transferred to any of the respondents.
11. As regards the contention of the learned counsel for the respondents that as Muhammad Ahmad Khan had given up his claim to transfer of the servant quarters and further that as full price of the property transferred had not been recovered from the transferees, the transfer in favour of the petitioner was not lawful, suffice it to say that the legality of the transfer in favour of Muhammad Ahmad Khan and the subsequent association with the petitioner whereby half of the property was surrendered to him was upheld by the Division Bench of this Court, while dismissing Writ Petition No.1180/R/84 on 19th May, 1965. That judgment having become final had binding effect and could not have been brushed aside by any person or authority. Furthermore, the Settlement Department was admittedly a party to the earlier writ petition and any decision thereon was binding on it. In view of that judgment, the question of legality of transfer stands foreclosed and cannot be reopened. There is also considerable force in the contention of the learned counsel for the petitioner, that the impugned order in any case, could not have been passed without any notice to the petitioner.
12. For the reasons aforesaid, the impugned order dated 23rd June, 1980 passed by respondent No.1 is declared to be without lawful authority and of no legal effect.
13. ' The petition stands accepted with costs.