1. ' FAZAL ILAHI KHAN, J.---This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 21st January, 1991 in Writ Petition No,196-R of 1981.
2. 2, The dispute between the parties is with regard to property (bungalow) No, SE-26-R-II, Abbot Road, Lahore, an evacuee property, which was initially transferred to Muhammad Ahmed Khan, the claimant/displaced person. This property consists of the main bungalow and servant quarters/outhouses. The occupant of the servant quarters/outhouses had also applied for transfer of these quarters in their respective possession under the then prevailing law. However, the entire bungalow consists of the main bungalow and servant quarters/outhouses was transferred in favour of Muhammad Ahmed Khan by order dated 20-1-1960. The transfer order was challenged in appeal by Nawabzada Ali Nawaz Khan, the predecessor-in-interest of the respondents, who also claimed to be entitled to its transfer. During the pendency of the appeal both the parties arrived at a compromise, therefore, in term of the compromise the appeal was accepted by Additional Settlement Commissioner vide order dated 12th March, 1960 and the parties were allowed to present themselves to the Deputy Settlement Commissioner with a written agreement, and accordingly P.T.O. Was issued on 17-3-1960. The compromise deed of the even date whereby the property was divided in two parts was accepted. The Deputy Settlement Commissioner directed that P.T.O be issued to the parties accordingly. However, they submitted yet another agreement- deed dated 6-12-1960 with a site plan prepared by the Settlement Authorities, in presence of the parties. Which was accepted and acted upon as such.
3. Rana Nasib Khan one of the occupants of the servant quarters/outhouses challenged the transfer of the servant quarters/outhouses in question in favour of Muhammad Ahmed Khan but failed in his efforts ultimately his Writ Petition No, 602-R of 1962 was dismissed by the learned High Court on 4-51962 and his letter patent appeal against the same also dismissed on 29-3-1963 (LPA No,200 of 1962) Rana Nasib Khan v. Muhammad Ahmed Khan and Ali Nawaz Khan and others, Later on other occupants of the servant quarters/out houses filed a joint appeal against the order of Dy.
3. Settlement Commissioner dated 20-1-1960 whereby the main bungalow including the servant quarters/outhouses were transferred to the petitioner as stated above. Their appeal was, however, dismissed by Additional Settlement Commissioner on 10-3-1960 and their revision petition was also dismissed by the Settlement Commissioner vide order dated 17-4-1964. Still dissatisfied with the order of Settlement Commissioner they challenged the transfer of the servant quarters/outhouses in Writ Petition No,1180-R of 1964 which was dismissed on 19-5-1965 by the learned High Court. While dismissing the writ petitions it was held that the entire property has rightly been transferred to the petitioner and it was within the competence of his entitlement. The matter, thereafter rested there.
4. It was on repeal of Displaced Persons (Compensation and Rehabilitation) Act, 1974 that appellants Nos.1 to 22 claimed to be the occupants of the servant quarters/outhouses in question started fresh round of litigation. They filed application forms under the "Residuary Scheme". The Dy.
4. Administrator without any notice to the respondents, in the purported power under section 6 of the "Scheme for the Management and Disposal of Residual Urban Properties," transferred these servant quarters/outhouses in their favour vide order dated 23-5-1980. The above order of transfer of the servant quarters/outhouses was challenged by private respondent in Writ Petition No,196-R of 1981 which was allowed by the learned High Court by judgment dated 21-1-1991 and the impugned order dated 23rd June, 1980 passed by respondent No,2 (Dy. Administrator Residual Property) was declared to be without lawful authority and of no legal effect.
5. Leave to appeal was granted against the judgment of the learned High Court on 8-11-1992 to consider the following contentions raised by the learned counsel for the appellants:--
(i) That the petitioners 22 in number Were residing in quarters and the occupants of the bungalow expressly stated that since the quarters were occupied by refugees, he did not want their transfer.
(ii) That in the ensuing litigation about the bungalow the petitioners were not party to those proceedings.
(iii) That they were rightly transferred the quarters in their possession by the competent authority; and
(iv) That the Constitutional discretionary jurisdiction was not rightly exercised to render the petitioners homeless all over again."
6. Learned counsel for the appellants confined his arguments to aforementioned contentions while the learned counsel for the respondents supported the judgment of the learned High Court on the ground that the property in dispute i,e. Bungalow including the servant quarters/outhouses stood transferred to the respondents by order dated 20-1-1960 and in pursuance thereof P.T.O. And P.T.D.
5. Were issued in respondent No,1 favour therefore, the property was no more an available property within the meaning of section 6 of Scheme for the Management and Disposal of Available Urban Properties . That the extent and competency of such transfer had been dealt with and finally determined by the Settlement Authorities. That on the acceptance of the compromise the appeal of Ali Nawaz Khan was accepted and in term of the agreement a site plan was prepared by the Department in which the total area of the bungalow is shown (including servant quarters/outhouses) alongwith the respective shares of both the transferees with the area worked out therein and in terms thereof P.T.D. Issued to both the transferees. That the applications of the appellants herein for transfer of the servant quarters in their respective possession stood rejected.
6. That their appeal and revision were dismissed by the Settlement Authorities and their writ petition was also dismissed by the learned High Court. That the matter had already been agitated by the occupants of the servant quarters in Writ Petition No,602-R/62 and Writ Petition No,1180-R/64 as such it did not lie with the Deputy Administrator to question the allotment affirmed by the aforementioned judgment of the High Court which had attained finality. Learned counsel further argued that though petitioners were not necessary parties, after rejection of their applications for transfer of the property in their occupation and its transfer to respondents, still the appellants were parties to the earlier Writ Petition No,1180-R/64. It was further argued that there was long chain of litigation in which the Rent Controller passed orders of ejectment of the occupants of these servant quarters/outhouses and some of them were dispossessed in execution of such orders, therefore, it cannot be said that the property was an available property on repeal of the evacuee law.
7. ' The contention of the learned counsel for the appellants that the occupants of the bungalow having expressly stated that the quarters are occupied by the refugees and therefore he did not ask for transfer of these in his favour does not appeal to reason as this was never their case before the Settlement Authorities and in the High Court in the earlier rounds of protracted litigation between the parties. The learned counsel for the appellants in this regard referred to the application C.H. (House) Form filed by Muhammad Ahmed Khan on 9-6-1959 to show that such endorsement did appear in the form available on file. However from the very outset this entry appears to be a subsequent endeavour by the appellants, after their failure to get the property, for the reason that this writing has never seen the light of the day and was never relied upon or pointed out during those proceedings. May be as it is a detailed statement of Muhammad Ahmed Khan was recorded by the competent authority in support of his Application Form wherein he had specifically stressed his claim for the transfer of the entire bungalow including the servant quarteRs, It was in pursuance thereof that the recommendation was made by A.S.C. On 18-1-1960 for the transfer of the entire bungalow. It was reported that the bungalow occupied by the applicant could be divided into two categories. One category includes the servant quarters' residents and the other category consists of the persons residing in the main building - - - . The second category consists of 2 parties -- one, is Ali Nawaz Khan and other is Muhammad Ahmed Khan. On receipt of such report the Deputy Settlement Commissioner on 20-1-1960 passed the following order:- "I agree with the above report. The bungalow alongwith servant quarters is transferred in favour of Muhammad Ahmed Khan the only claimant in main building. Froms of Ali Nawaz Khan and others about servant quarters are all rejected."
8. ' Ali Nawaz Khan challenged the transfer orders in appeal and in appeal both the parties entered into a compromise whereby Ali Nawaz Khan and Muhammad Ahmed Khan both were held entitled to share the entire bungalow. Spot was inspected, measurement was taken and in presence of the Settlement Authority the area of each party was worked out as is evident from the site plan drawn by such authority in pursuance of the agreement in the retio 8 :
9. In this plan total area of the bungalow is given as under:-- ' Total area of bungalow -- 17 Kanals 3 Maral 121 Sq.Ft. Area of part No,1 -- 8 Kanal 1 Marla 12 Sq.Ft.
9. Area of part No,2 -- 9 Kanal 2 Marlas 12 Sq.Ft.
10. ' This set at naught the contention of the learned counsel with regard to his objection to the transfer of the disputed quarters, ' The matter did not end here as the servant quarters are shown in part No,2 the transfer deeds were accordingly issued in their favour of their respective shares.
11. ' It may also be pointed out that Rana Nasib Khan had independently challenged the transfer order in favour of the respondent through Appeal No,397 of 1960 regarding the property in question on which the Additional Settlement Commissioner, and Rehabilitation Commissioner, Lahore passed the following order:- "This is an appeal against the order of learned Additional Settlement Commissioner (I), Lahore, dated 20-1-1960, in accordance of which he has rejected application of the appellant in Form C,H.
12. In respect of quarters of Bungalow No,SE-26-R-II, Abbot Road, Lahore.
13. ' The appellant himself admits in the same application that it is a servant quarter. Now he has come forward with appeal that it is an annexe and should be transferred to him. I, however, am convinced that the occupant of a quarter can in no way extend his right over the main building and that it does not entitle him to ask for division of lawns etc. From the main building. I, therefore, reject the appeal."
14. ' Rana Nasib Khan challenged the order in Writ Petition No,602/R/62 which was dismissed on 4-5- 1962. L.P.A. No,208 against the same was also dismissed on 29-3-1963. The occupants of the servant quarters/outhouses challenged these orders passed by the Settlement authorities in Writ Petition No,1180/R/64 which was dismissed and the matter attained finality. Similarly Amir Hussain and others challenged the transfer order before the Additional Settlement Commissioner, challenging the transfer of whole of property No,SE.26.R.II Abbot Road, Lahore and it was alleged that they were in possession of 18 servant quarters since 1946. That the whole bungalow is residential premises but respondent changed its nature into a factory and workshop. In para. 6 of grounds of appeal specific objection to transfer was raised which is reproduced as under :-- "That it is only till recently that through office somehow or the other they came to know that this huge Kothi covering vast area of 17 Kanals 21 quarters and outhouses have been transferred to the respondent alone by dislodging 18 claimants displaced family with regular allotment and in sole occupation of 18 quarters,"
15. ' This appeal was dismissed by the Settlement Commissioner on 17-4-1964.
16. ' The contention of the learned counsel for the appellants that the appellants herein were not parties to the previous appeals and revisions and the writ petitions is contrary to the record as they are in one way or the other claimed to be the occupants of these 18/21 quarters in the premises in question and had been parties throughout in the previous litigation which is born out by the record.
17. The dispute having been finally settled the occupants of these quarters/outhouses were served with notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act by the respondents and their ejectment was sought in the Court of Controller of Rent. In majority of these cases, ejectment order passed against the occupants and such order were duly executed as is evident from the certified copies of such orders placed on file. We may also refer for further clarification that in Writ Petition No,1180-R/64 decided on 19-5-1965 (Amir Hussain and 10 others v.
18. Settlement Commissioner, Montgomari Road, Lahore and 2 others; namely, Muhammad Ahmed Khan and Ali Nawaz Khan), it was alleged that petitioners Nosl, 4, 7 and 11 were the claimants displaced persons and the rest of the petitioners were non-claimants displaced persons and all were in possession of property No,SE-26-R-II situated at Abbot Road, Qila Gujjar Singh, Lahore. It was further alleged therein that per order dated 20-1-1960 Deputy Settlement Commissioner transferred the entire property to respondent No,2. At the time of this decision the C.H. And N.C.H.
19. Forms of the petitioners were duly filed within time. In this petition it was further their case before the Chief Settlement Commissioner and the learned High Court that respondents/transferees were entitled to the transfer of 3 times of the original plinth area of the residential house only and the excess area will have to be demarcated and disposed of according to rules. Their Lordships making reference to the measurements made by the Patwari and other official of the Settlement Department (Annexures R-7 and R-8) held as under:-- "The main house was built on an area of 1 Kanal 16 Marlas and servant quarters were built on 2 Kanals. Because we have held that servant quarters are a part and parcel of the main house, therefore, for purpose of calculating 3 times the area under construction, the land underneath the main house and servant quarters has to be taken into consideration and these two items taken together come to 3 Kanals 16 Marlas. To this if we add the other construction such as latrine, tubewell, tank etc. The built up area as per detail given in Annexure R-7 of the superstructure, excluding temporary construction made by respondent No,2 after the year 1974 comes to 4 Kanals 93 Sq.Ft. The total area of Kothi as per revenue record is 17 Kanals 3 Marlas 121 Sq.Ft. And therefore, there is no area in excess of the formula of 3 times of the plinth area which has been transferred to the respondents."
20. From the above it is clear that the question had been expressly dealt with in all the forums and found that the entire bougalow including servant quarters/outhouses stood transferred in favour of respondent, per order dated 20-1-1960 which was maintained by the competent forum and the High Court in proceedings referred to above. Accordingly, the property was no more available property within the meaning of section 6 of the Scheme.
21. ' It is highly regrettable that the tendency has developed whereby the orders of the superior Courts are frustrated and the decree-holders, the beneficiaries of such orders, are put to further hardship and are deprived of the fruit of their success as in the instant case. Admittedly, as held above, the - entire bungalow including the quarters/outhouses stood transferred to the respondent and there was nothing left which could have been considered as residuary property for disposal under the Scheme. But strangely enough Deputy Administrator Residuary Property by passing the aforementioned final judgments/orders involved the respondent in unnecessary litigation. Such colourful exercise of power by these authorities, who frustrate the orders of superior Courts, need to be taken note of and dealt with strong hand in future.
22. ' We find no infirmity in the judgment of learned High Court. With the observation noted above appeal is dismissed with costs.