' This writ petition is being disposed of alongwith W.P. No,453-R of 1981, inasmuch as these are connected matters and there is an order by this Court dated 4-6-1989, passed in W.P. No,453-R of 1981 that both the writ petitions shall be heard together. Somewhat similar questions of law and fact also arise in both these cases.
2. The facts forming the background of these writ petitions are: Khasra No,1210 measuring 3 Marlas 25 Sq. Ft. And Khasra No,1211 measuring 1 Kanal 5 Marlas 182 Sq. Ft. Are located in Mauza Bela Basti Ram, near Badami Bagh, within the urban limits of Lahore city. Half portion of both these Khasras was owned by one Gurdevi widow of Sohan Lal and the remaining half was owned by Siraj Din deceased, father of the petitioner. The portion of Siraj Din was mortgaged with one Ram Lal, but it was redeemed, and there is no dispute presently that the petitioner in his capacity as legal heir of Siraj Din is owner of half share in both these Khasra numbeRs, There is also no dispute that the evacuee share of these Khasras has not yet been identified and partitioned either in the record or at the spot.
' The evacuee share of Gurdevi was allotted to one Karim Bakhsh, a displaced person, against his urban units in 1971. He died sometime afterwards. Siraj Din, predecessor-in-interest of the petitioner, purchased the said allotted area from the legal heirs of Karim Bakhsh. This is vide sale deed dated 10-5-1978.
' Respondents 1 to 3 had already submitted a transfer form seeking transfer of the evacuee share of Gurdevi under the scheme framed for disposal of urban, immovable properties under the repealed Act. The case of the petitioner (Ghulam Murtaza) is that Muhammad Abdullah (respondent No,3) who was one of the applicants for such transfer, was his tenant and it was in that capacity that he was keeping it. This fact is not admitted by the respondents. Be that as it may, on 5-5-1979, the Deputy Administrator (Residual Properties) transferred the whole area of these two Khasra numbers to respondents 1 to 3. The petitioner felt disturbed and filed a revision petition which was dismissed by the Administrator (Residual Properties), respondent No,4, on 16-12-1982. It is in these circumstances that Ghulam Murtaza has filed the present writ petition.
3. The case of the petitioner is: (i) admittedly half of the area in the Khasra numbers in question is owned by him and there was no occasion whatsoever for transfer thereof to respondents 1 to 3; (ii) the remaining half has been purchased by Siraj Din father of the petitioner, from the legal heirs of Karim Bakhsh through a registered sale-deed dated 10-5-1978, and Karim Bakhsh, being an allottee of the evacuee portion of the two Khasra numbers against his verified urban units in 1971, was fully justified to sell the same.
4. Sh. Anwarul Haq, learned counsel appearing for respondents 1 to 3, and Mr. Hamid All Mirza, learned counsel appearing for respondents 4 and 5, have very fairly conceded that the order of transfer of the two Khasra numbers, as a whole in the names of respondents 1 to 3, was not justified.
It is admitted that the petitioner was owner to the extent of half.
5. In so far as the claim of the petitioner to the remaining half (overdue share) is concerned, suffice it to say that the same is not justified. The petitioner based his claim of ownership qua the evacuee portion in these two Khasras upon a sale-deed through which his father had purchased the same from Karim Bakhsh allottee. One has to see as to whether or not the allotment in the name of the predecessor-in-interest of the petitioner in 1971 was justified. It is admitted by the learned counsel for the petitioner before me,during the course of arguments, that in 1966 the Chief Settlement Commissioner had issued a notification declaring the area in the urban limits of Lahore city as building sites. Therefore, the question of allotment of the evacuee share of the disputed Khasra to Karim Bakhsh against his urban units, treating the same to be agricultural land, did not arise. In my view, this exercise was coram non judice.
6. The plea of the learned counsel for the petitioner that before the alltoment of the disputed Khasra numbers in the names of respondents 1 to 3 by respondent No,5, he should have been issued a notice and afforded an opportunity of being heard is nothing but a hypertechnical plea which, in the A circumstances of this case, cannot be entertained. Since the allotment in the name of Karim Bakhsh was a nullity, the petitioner did not succeed to any right therein through the sale- deed, referred to above and, therefore, he could not be termed to be a person likely to be adversely affected by transfer thereof, treating the same to be available for disposal under the Repealing Act.
7. In so far as the share of the petitioner in the two Khasras is concerned, as already mentioned, there is a concession forthcoming on behalf of the respondents and, in my view, the petitioner should feel satisfied therewith. He cannot be permitted to lay hands on property which really did not belong to him. It is another matter that his father was taken in by the representation made by Karim Bakhsh to the effect that the evacuee portion of the disputed Khasras was available for sale.
The petitioner, if so advised, may seek his remedy for the refund of the sale money paid to Karim Bakhsh by his father.
8. As regards W.P. No,453-R of 1981, the grievance of the petitioners therein is that they have been ordered to pay price of the two Khasra numbers in question treatng the same to be commercial plot. According to the learned counsel for the petitioners, there is material available on the record of this writ petition that the site in their possession was not commercial and, in fact, it was being used for residential purposes only; the petitioners having raised construction are residing therein. In my view this is a question which needs detailed inquiry and probe, which is not possible in Constitutional jurisdiction. The petitioners, as they claim having sufficient material in their possession to satisfy the competent authority that they should be charged for the price of the disputed site on the basis of its being residential one, should produce the same before the concerned respondent (in their writ petition).
9. There is another aspect of the case. Admittedly, the evacuee portion of the disputed Khasra numbers has neither been identified nor demarcated in the record of the departmental authorities, or even at the spot. This exercise has, per force, to be taken by the said authority. Needless to add that the portion which has been constructed by the petitioners (in W.P. 453-R of 1981) has to be kept in view at the time of demarcation of the share of the evacuee owner and treated to be in the Vanda of the evacuee owner. The remaining portion going to the Muslim owner, i,e, Ghulam Murtaza in W.P. No,5-R of 1983. Learned counsel for Ghulam Murtaza has no objection to this mode of partition, and in my view this is the only fair solution to the problem.
10. In view of the circumstances, stated above, I dispose of both the writ petitions with the following directions:-
(i) the matter shall gc back to the Notified Officer/Deputy Administrator (Residual Properties). The parties shall appear before him. The officer, to begin with, shall pay a visit to the spot, carry out necessary measurement/demarcation and define the evacuee half portion out of the two Khasra numbers now left with the petitioners in W.P. No,453-R of 1981. A sketch map of the position obtaining at the spot shall also be prepared and placed on the record of the case. The remaining portion would be considered to be the exclusive property of Ghulam Murtaza, the Muslim co-sharer in these two joint Khasra numbers; ' the petitioners in W.P. No, 453-R of 1981 shall be given an opportunity to lead evidence to show that the half portion of the two Khasra numbers, now to be treated to be transferred to them, shall be taken as residential in character and price thereof charged from them accordingly; and in view of the fact that the litigation is going on between the parties for a very long time, the entire exercise shall be completed, and after charging the price from the petitioners in W.P. No,453-R of 1981 transfer order/document shall be issued to them, within a period of two months, positively.
' There shall be no order as to costs.