' ABDUL KADIR SHAIKH, J.---Facts of this case briefly stated are that appellants claimed the transfer of Plot No, P.R.I./20/4 situated on Marston Road, Karachi, on the ground that they were allottees and had raised permanent construction thereon. They subsequently offered to pay average price plus 50% thereon. Their request was rejected by the Settlement Authorities, but on a Constitution Petition filed in the former High Court of West Pakistan, Karachi Bench, a learned Judge held by the judgment, dated 3rd September, 1965 that appellants were entitled to the transfer of the property and directed the Settlement Authorities to transfer the plot to them. In the meanwhile, however, the plot was put to auction and was transferred to the highest bidder, Shaikh Abdul Hafeez, predecessor-in-interest of respondents 2 to 6. However, in view of the judgment of the High Court the auction was set aside.
2. The aforesaid judgment of the High Court was subject-matter of Letters Patent Appeal by the parties and finally the Letters Patent Bench by the judgment, dated 6th April, 1967 while upholding the judgment of the learned Single Judge held that the question of transfer of the plot ought to have been left to be decided by the Settlement Authorities and accordingly the judgment of the learned Single Judge was modified in so far as the direction contained therein with regard to the transfer of the plot to the appellants and it was left to the Chief Settlement Commissioner to consider the entitlement of the appellants to the transfer of the plot in the light of the judgment.
3. The judgment of the Letters Patent Bench led to two appeals before this Court: one, by the appellants and the other by Shaikh Abdul Hafeez, being Civil Appeals Nos. K-37 and K-22 of 1970.
Both these were, however, dismissed by this Court by the consolidated judgment, dated 8th January, 1980.
4. Consequently, the case was taken up by the Settlement Commissioner and he eventually, after hearing the parties, transferred the plot in favour of the appellants by the order, dated 22nd February, 1981.
5. Shaikh Abdul Hafeez died in the meanwhile and his successors-ininterest, respondents 2 to 6 herein, then challenged the order of the Settlement Commissioner in a Constitution petition, being Constitution Petition No, 72-K of 1981 in Sindh High Court. The learned Judge of the High Court who heard the case took the view that since it has not been shown by the appellants that they had raised a permanent construction on the plot they were not entitled to its transfer and on this view of the case, he quashed the order of the Settlement Commissioner and allowed the petition by the impugned judgment, dated 1st October, 1984.
6. Leave to appeal was granted by this Court in order to examine the submission, inter alia, that the learned Judge in the High Court had failed to appreciate that respondents 2 to 6 who were the petitioners before him had no locus standi whatsoever to challenge the order of the Settlement Commissioner dated 22nd February, 1981, for, they had no right to the transfer of the plot, since, by the judgment of the learned Single Judge of the former High Court of West Pakistan, Karachi Bench, dated 3rd September, 1965 and even thereafter by the Letters Patent Bench of the same High Court and finally by the judgment of this Court, dated 8th January, 1981, the question of their entitlement stood foreclosed.
7. At the hearing today, it was contended on behalf of the appellants as under:
(1) That the auction in favour of Shaikh Abdul Hafeez (deceased) having been cancelled by the High Court in Civil Petition No, 771/62 and the appeals against the said part of the auction having been dismissed neither Shaikh Abdul Hafeez nor his predecessors-in-interest are entitled or could maintain a writ petition in the High Court.
(2) That the remand of the case by the Supreme Court in Civil Appeals Nos. K-36, 37-K and 22-K of 1970 was for determination of the title of the appellants in terms of Memorandum No, 10593'P1- Reh/60, dated 24th June, 1960, was confined to the limits set out by the Supreme Court as under: "Thus, the view taken in the High Court in the present case that as the instructions conveyed through Notification No, 10593-P1-Reh/60 dated 24-6.1960 have been issued by the Chief Settlement Commissioner with the approval of the Central Government and they are .To be considered to have been issued under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, as it stood at the material time, and that if M/s. Yousuf and Khalil are, as a matter of fact, in occupation of the premises they are entitled to its transfer if they had made the offer to purchase the property before it was finally put to auction, is unexceptionable and is hereby upheld. The Appeal No, 22-K of 1970, therefore, fails and is dismissed hereby leaving the parties to bear their own cost."
(3) That the appellants being in possession of the property were entitled to retain the property both on the basis of their possession and construction thereon on the basis of Memorandum, dated 24th June, 1960, above.
(4) That the learned Judge in the High Court in the impugned judgment could not change or alter the rights that had accrued to the appellants under the earlier judgment of the High Court.
(5) That the constructions made by the appellants on the plot met with the principles laid down by this Court in Mehmooda Tahseen's case (PLD 1965 SC 618), and they therefore had legal entitlement to the transfer of the property.
(6). That this Court having held that Memorandum No, 10593-P1-Reh/60, dated 24th June, 1960, to be in force, it was not open to the High Court or the Settlement Authorities to disregard this statement of law.
8. After having addressed arguments at length, both the learned counsel stated that since the aforesaid points raised before this Court have not received attention of the High Court, the appeal may be allowed and the impugned judgment of the High Court be set aside and the case may be remanded to the High Court for fresh decision in accordance with law on the points raised before this Court and/or any other that may be available to the parties according to law.
9. We feel that the joint request made by the learned counsel for the parties is just and proper course of disposal of this appeal and therefore allow the appeal and while setting aside the impugned judgment of the High Court remand the case to the High Court as prayed by the learned counsel for the parties.
' In the circumstances, the parties are left to bear their own costs.