1. ' SAIDUZZAMAN SIDDIQUI, J.---The above appeal by the leave of this Court is filed against the judgment of a learned Judge in Chambers of Peshawar High Court (Circuit Bench Abbottabad) dated 23-12-1992, whereby Writ Petition No, 97 of 1991 filed by the appellants challenging the order of Additional Settlement Commissioner, Hazara, dated 8-5-1991, was dismissed. Leave was granted in the case amongst others, to consider the following contentions of the appellants:-- "Leave is granted, inter alia, on the ground; whether, the order of remand passed by the High Court dated 27-2-1988 has been properly complied with by the Additional Settlement Commissioner; whether the shops in occupation of the petitioners is available property within the meaning of scheme for management and disposal of available properties and the petitioners were entitled to the transfer of the shops under the scheme; whether the property marked "C" in the site plan has actually been transferred to Sardar Muhammad Anwar Khan and whether he was entitled to its transfer. And as to whether the P.T.O. Dated 28-1-1961 produced by Sardar Anwar Khan before the Additional Settlement Commissioner during arguments of the case was not a forged document, it had never seen light of the day before it was produced."
2. ' The relevant facts of the case are that Sardar Muhammad Anwar Khan (respondent No, 4 herein) applied for transfer of an evacuee house bearing No, 3123 belonging to evacuee Hira Singh and Mohan Singh, situated at Link Road, Abbottabad (hereinafter to be called as 'the suit property') under Settlement Scheme No, I, on C.H. Form. Respondent No, 4 was issued Appendix X dated 22-9- 1959 for the suit property which was followed by a Provisional Transfer Order (P.T.O.) dated 4-3- 1960. In the P.T.O. Issued to respondent No, 4, the schedule of the property transferred to him was shown as "House No, 3123, situated on Link Road, Abbottabad, Double Storey House, open compound allowed three times only of the covered area". One Mst. Fazeelat Jan, who claimed to be the 50% owner of the suit property, having purchased the same from its evacuee owner, sought declaration from the Custodian of Evacuee Properties that her share in the property was not affected. The Deputy Custodian of Evacuee Properties by order dated 14-12-1960 declared the said Mst. Fazeelat Jan owner of 50% share in the suit property. When the above order of Deputy Custodian came to the notice of Settlement and Rehabilitation Commissioner, Peshawar, he in exercise of his suo motu revisional power under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 "hereinafter to be referred to as `the Act' only", set aside the transfer of suit property in favour of respondent No, 4 and remanded the case to Additional Settlement Commissioner, Abbottabad, by order dated 15-5-1971 with these observations:-- "The case as a result is remitted to the learned Additional: Settlement Commissioner for partitioning the two shares in the first instance and then to consider the question of transfer of the one hold to be evacuee and a consequent part of the compensation pool. In this connection it might, however, to be impressed that with a view to eliminate the possibility of multiple litigation, the disposal of the property already effect might be chosen for its revival for the portion that is held to be evacuee. In the very context it will also need to be seen for consideration by the learned Additional Settlement Commissioner that re-construction of certain sets of property had taken place at the expense of the transferees and a dislocation of disposal of that from their names might not be very happy approach. With these observations, however, it may be pointed out that there is no intention to fetter the discretion of the learned Additional Settlement Commissioner for passage of an order which he will of course do by purely depending on the merits of the case."
3. ' The Additional Settlement Commissioner, Abbottabad, on receipt of the case on remand from the Court of Settlement Commissioner, partitioned the evacuee and non-evacuee share in the suit property by his order dated 7-5-1979 as under:-- "I inspected the spot in presence of the parties and consulted the record in detail. The matter is decided as follows and which is to the satisfaction of all concerned.
4. ' The Main Bungalow No, 3123 alongwith its compound as marked 'A' and lined in red ink in the site plan, is declared and partitioned as `Muslim Property' owned by Amir Afzal and Mst. Fazilat Jan etc. As per orders of Additional Custodian of E.P. Dated 14-12-1960, while the rest of 3123 marked 'B' in site plan originally transferred to Sardar Muhammad Anwar will be treated as 'Evacuee Property'.
5. Similarly Property Nos. 3124 to 313i viz. Remain as evacuee property since disposed of (No, 3131 is available for disposal). The owner may take over possession from Sardar Muhammad Anwar at their own accord. The variation in prices may be determined under law so far the Property No, 3123 to the extent to evacuee share is concerned to be charged from Sardar Muhammad Anwar.
6. Accordingly the price of the portion of Property No, 3123 declared partitioned as Muslim Property may be restored to Sardar Muhammad Anwar, if any."
7. ' The case of respondents before us is that respondent No, 4, separately applied for transfer of Shops Nos. 3123/A to 3123/H (8 shops) constructed on the open space of suit property, on the ground that these shops were constructed by him which was accepted and accordingly respondent No, 4 was issued Appendix X dated 16-1-1961 for 8 shops which was followed by a P.T.O.
8. 183216 dated 28-1-1961. However, the documents produced before us do not support the contention of the respondents. The order of Deputy Settlement Commissioner, Hazara, dated 20-4-1960, filed by the respondents, show that respondent No, 4 was held disentitled to the transfer of shops adjacent to the compound of suit property. Respondent No, 4 appealed against the above order of Deputy Settlement Commissioner dated 20-4-1960 before Additional Settlement and Rehabilitation Commissioner, Peshawar, which was disposed of on 16-5-1960 as follows:- "Counsel for the appellant and the representative of the Deputy Settlement Commissioner, Hazara, are present. The appellant does not want to proceed further with the case as he has submitted separate application for the transfer of the shop constructed by him and the application regarding the transfer of the property in dispute is pending with the D.S.C., Hazara. He is, therefore, allowed to withdraw the appeal and the case is filed."
9. ' The learned counsel for the respondents is unable to point out any order of Settlement Authority determining the entitlement of respondent No, 4 in respect of Shops Nos. 3123/A to 3123/H, which formed the basis for issuance of Appendix X dated 16-1-1961 and P.T.O. Dated 28-1-1961. In any case, in the order of remand dated 15-5-1971 passed by Settlement Commissioner and the partition order dated 7-5-1979 passed by Additional Settlement Commissioner, Abbottabad, subsequent thereto, there was no mention of the transfer of Shops Nos. 3123/A to 3123/H to respondent No, 4.
10. The Appendix dated 16-1-1961 and P.T.O. Dated 28-1-1961 also do not appear to have been produced in the proceedings before the High Court. In these circumstances, no satisfactory material is available before this Court to reach the conclusion that shops bearing Nos. 3123/A to 3123/H were separately transferred to respondent No, 4 under a valid order of Settlement Authorities. However, there is also no material before us to reach the conclusion that Shops Nos.
11. 3123/A to 3123/H became available for transfer at any stage of the proceedings. In these circumstances, we set aside the impugned judgment of the learned Judge in Chambers and remand the case to the notified Officer to determine whether Shops Nos. 3123/A to 3123/H Link Road, Abbottabad were transferred to respondent No, 4 at any time under a valid order of Settlement Authorities under the provisions of the Act. If it is found that Shops Nos. 3123/A to 3123/H were validly transferred to respondent No, 4, the transfer documents issued to respondents shall hold good.. In case it is found that these shops were not transferred under a valid order of Settlement Authorities to respondent No, 4, the same will be available for disposal in accordance with the law. There will be no order as to costs.