ALI HUSSAIN QAZILBASH, J.---This appeal, by leave, arises from the judgment of a learned Single Judge of the High Court of Baluchistan dated 23-12-1987.
2. The facts given are that on the basis of NCH form House No.2-15/10 situate on Jamaluddin Afghani Road, Quetta was transferred to the appellant and PTO Machine No.808575 was issued to him on 17-10-1961 and on the payment of its price, PTD was also issued to him on 21-10-1961. In 1963 one Muhammad Naseem approached the Additional Settlement Commissioner challenging the transfer of the suit house to the appellant which resulted in the cancellation of the PTD issued to the appellant. This order was challenged by the appellant before the Settlement Commissioner but the same was dismissed on 23-8-1963. Thereafter the appellant made an application to the Additional Settlement Commissioner, Quetta for the transfer of the house in question on negotiation basis. The Additional Settlement Commissioner referred the matter to the Settlement Commissioner who vide order dated 7-9-1963 approved the transfer of the disputed house at the prevailing market price determined by the Additional Settlement Commissioner, subject to the condition that no other person was interested in agitating the matter for auction. Pursuant to the above, the Additional Settlement Commissioner transferred the house to the appellant vide order dated 6-1-1964 at the price of Rs.4,850.
3. About eight years after the transfer one Mst. Farrukh Taj moved the Chief Settlement Commissioner against the transfer made in favour of the appellant. The appellant as well as Mst.
Farrukh Taj appeared before the Chief Settlement Commissioner, whereafter the Chief Settlement Commissioner in exercise of suo motu powers cancelled the transfer in favour of the appellant and remanded the case to the Deputy Settlement Commissioner for decision afresh. The Deputy Settlement Commissioner after hearing the parties cancelled the transfer of the property from the name of the appellant on 15-5-1973 on the ground that the appellant was not in possession of the property. The house was ordered to be available for transfer. The appellant then challenged the orders of the Chief Settlement Commissioner and that of the Deputy Settlement Commissioner, Quetta through a constitution petition which was allowed on 12-6-1974.
4. Armed with the order of the High Court the appellant filed an ejectment application against Mst.
Farrukh Taj before the Rent Controller, Quetta. Before the Rent Controller Muhammad Azam respondent No.1 who is close relation of Mst. Farrukh Taj made an application for being impleaded as a party. This application was allowed and so was the application for ejectment of Mst. Farrukh Taj etc. Vide order dated 29-9-1983. The eviction order was, however, set aside by the High Court on appeal by Mst. Farrukh Taj as per the judgment dated 8-6-1975. The sole reason which prevailed with the learned Judge was that following transfer on the basis of order dated 12-6-1974 it was necessary for the appellant to have obtained fresh PTO and PTD before filing the ejectment application. Thereafter the appellant made a miscellaneous application before the Member, Board of Revenue for issuance of fresh PTO and PTD. On notice issued by the Member, Board of Revenue in respect of above application both Mst. Farrukh Taj and Muhammad Azam made an appearance through their counsel but later on chose not to contest the proceedings. The Member, Board of Revenue then vide his order dated 1-2-1986 directed the issuance of PTO in favour of the appellant since the entire amount had been paid.
5. Earlier than the above order of Member, Board of Revenue, Muhammad Azam had on 25-4-1975 filed a suit for declaration and permanent injunction against the appellant in the Court of Civil Judge 1st Class, Quetta which was entrusted to the Additional District Judge-11, Quetta. While seeking declaration against the transfer of the disputed house in favour of the appellant Muhammad Azam also sought a direction in the nature of mandatory injunction to Member, Board of Revenue for issuance of transfer order in his favour. In the suit filed by Muhammad Azam his stance was that the house has illegally been transferred to the appellant and that he was in possession of the suit property and recorded as a tenant under the Custodian Department and taking advantage of his absence from Quetta in 1969/70 the appellant got the house transferred in his name.
6. The suit was contested, two preliminary issues with regard to the jurisdiction of the Civil Court and competency of suit were framed and after recording the evidence the trial Court dismissed the suit of Muhammad Azam respondent No.1 vide judgment and decree dated 7-7-1976. On appeal by respondent No.1, however, the appellate Court set aside the judgment of the trial Court and remanded the case to it. On remand the trial Court framed two other issues with regard to the validity of transfer of the house to the appellant and respondent No.1's entitlement to the decree prayed for. The trial Court after recording the evidence decreed the suit of respondent No.1 directing respondent No.2 to transfer the suit house to respondent No.1 vide his judgment dated 30- 12-1986. Feeling aggrieved the appellant filed an appeal in the High Court which was dismissed as per the impugned judgment.
7. Leave in this case was granted to examine the propriety and legality of the order passed by the trial as well as the appellate Courts in this case.
8. The learned counsel for the parties heard. The submissions made by the learned counsel for the appellant were that after the order of cancellation of transfer made in favour of the appellant earlier, the suit house was transferred to him on negotiation basis as per the orders of the Settlement Commissioner dated 7-9-1963 and that of the Additional Settlement Commissioner dated 6-1-1964. Though the above order was set aside by the Chief Settlement Commissioner on the application of Mst. Farrukh Taj, yet the transfer of the house in favour of the appellant was restored by the High Court vide order dated 12-6-1974. Admittedly the order of transfer dated 12-6- 1974 was not challenged further, it had therefore attained finality and could not be challenged in any forum. He further submitted that assuming without conceding that Muhammad Azam respondent was in possession of the suit house at the crucial period i.e. Before 20-12-1958 yet his failure to submit any form as required under the law for the transfer of disputed house has disentitled him to ask the Settlement Authorities for its transfer and further that because of the bar of section 25 of the Displaced Persons Act, the Civil Court had no jurisdiction either to adjudicate upon the right of appellant or to issue directions to the Settlement Department to transfer the suit house to the respondent. Reliance in support of above contention was placed by him in the case of Ghulam Rasool and others v. Jannat Bibi 1990 SCM R 744; Munir Ahmed etc. v. Noor Muhammad 1982 SCM R 1038; Sardar Muhammad v. Barkat Ali 1986 SCM R 770; Mukhtar Bibi v. Atta Muhammad 1985 SCMR 1506; Mirza Muhammad Yaqoob v. 'Chief Settlement Commissioner, Lahore and another PLD 1965 SC 254; Jamal Din and others v. Mst.Pari Jan and 4 others 1984 SCM R 403.
9. As against the above the learned counsel for the respondents vehemently contended that admittedly the disputed house has been transferred to the appellant by the Settlement Authorities on negotiation basis. Since the Settlement law does not recognise transfer on negotiation basis to any person nor any such provision exists, obviously the transfer made in favour of the appellant was ab initio illegal and void. Since the repeal of Settlement laws, the only Court, therefore, which was competent to be moved to set aside an illegal transfer was the Civil Court. He further submitted that sufficient evidence has been brought on the record to establish that the respondent was in possession of the suit house right from 1947, therefore under the law he alone was entitled to secure its transfer. Reliance was placed by him in the case of Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi PLD 1965 SC 698; Hamid Hussain v. Government of West Pakistan 1974 SCM R 356 and Mst. Jehan Ara Begum v. Bashir Ahmed and others 1975 SCM R 401.
11. After hearing and perusing lengthy arguments advanced by the (earned counsel for the parties, two points emerged to be considered in this case. The first is about the locus standi of the respondent to challenge the transfer of the suit house in the name of the appellant and demanding its transfer in his name, and the second is the bar under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 ousting the jurisdiction of the Civil Courts.
11. Admittedly the house in dispute stands transferred to the appellant on negotiation basis as per orders of the High Court (passed on Constitution petition filed by the appellant) dated 12-6-1974.
The order of the Settlement Commissioner dated 7-9-1963 and that of the Additional Settlement Commissioner dated 6-1-1964 were restored. The contention of the respondent that the orders of the High Court would not stand in his way because the same were passed in his absence would not prevail because Mst. Farrukh Taj who is sister-in-law of respondent No.1 and was alleged to be in possession of the suit house was very much represented before the High Court where she appeared as respondent No.3. Since neither the order of the High Court dated 12-6-1974 was ever challenged by Mst. Farrukh Taj, nor she or for the matter of that respondent No.1 had ever applied for all these years on the requisite form seeking transfer of the suit house before the Settlement authorities, so naturally the order dated 12-6-1974 has attained finality and therefore, respondent No.1 has no locus standi to challenge the transfer of the suit house in favour of the appellant.
12. As for the bar under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the jurisdiction of Civil Courts is completely ousted regarding the determination of the status of the property acquired under the above-said Act and the determination of the rights of the parties seeking transfer of such properties. Thus the only remedy available to the respondent was that either he should have submitted forms as required under the Displaced Persons (Compensation and Rehabilitation) Act before the relevant Settlement Authorities seeking for the transfer of the suit house or should have challenged the order of the High Court dated 12-6-1974 in the higher forum and thus got that order set aside. Since he had failed to avail either of the opportunities he, therefore, cannot ask for a direction through a Civil Court to the Member, Board of Revenue respondent No.2 to consider his case for the transfer of the suit house.
13. The authorities cited at the Bar by the learned counsel for the appellant are fully applicable to the case in hand whereas the authorities relied upon by the learned counsel for respondent No.1 are distinguishable in that no plea of mala fide on the part of the Settlement Department has been alleged by the respondent.
14. In view of the above, the appeal is accepted and the order of the learned Single Judge dated 23-12-1987 is set aside with costs.