The relevant facts for the decision of this appeal are that predecessor-in---interest of the appellants filed application under . Section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act before the Chief Settlement Commissioner on 12-9-1967. The same was sent to the Settlement Commissioner, Rawalpindi, who dismissed the application vide order dated 25-5- 1968, which has been assailed through the present appeal. The appeal was admitted to hearing and notice was issued to the respondents, who have entered appearance and contested the appeal.
2. The learned counsel for the appellants argued that the original appellant filed the above appeal, which was admitted and status quo was ordered on 18-1-1971 and C.M. 1311/91 was moved on 25-3- 1991 for impleading the present appellants as party. It is added that Malik Ghulam Hussain, the original respondent No. 1, proceeded to raise construction on the site in violation of the order of status quo issued by this Court, therefore, the heirs of the said respondent should not be heard in appeal. It is argued that the Settlement Commissioner failed to appreciate that the application before him was only for making a reference to the concerned authority as to whether the property in dispute is evacuee trust property or not? The status of the property was to be decided by the authority, which is now Chairman, Evacuee Trust Property. It is added that in this behalf special responsibilities are cast on the Courts to save the property. The learned counsel in this behalf referred to Master Chiragh Din v. Abdul Hakim and another (PLD 1974 Lah. 370), Evacuee Trust Property Board v. Rahim Khan and 3 others (1989 SCMR 1605), Divisional Evacuee Trust Property Committee, Hyderabad v. Deputy Commissioner and another (1989 SCMR 1610), District Evacuee Trust Committee v. Mashraf Khan and 3 others (1989 SCMR 1636) and District Evacuee Trust Committee v. Muhammad Umar and others (1990 SCMR 25). It is argued that since the Settlement Commissioner lacked jurisdiction, therefore, he should have sent back application to the Chief Settlement Commissioner for decision. The same could not be dismissed.
The next limb of the argument is that Evacuee Trust Property Board, which is a respondent, has moved C.M. For its transposition as appellant. The same may be granted. It is added that the Appellate Court is fully competent to grant any relief in view of the provisions of Order XLI, Rule 33, C.P.C. It is argued that since the property in dispute was evacuee trust property, therefore, no other Court had jurisdiction in the matter. The learned counsel in this behalf has referred, to Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi etc. (PLD 1965 SC 356) and Evacuee Trust Property Board v. Mst. Zakia Begum and others (1992 SCMR 1313). It is added that when an act is to be performed in a particular manner then it should be performed in the prescribed manner and not otherwise. The learned counsel in this behalf has referred to Nazir Ahmad v. King-Emperor (AIR 1936 PC 253(2)). It is argued that reference has since been made by the Department on 21-12-1994, therefore, the same may be allowed to be decided.
3. On the other hand, Mr. A.R. Shaukat, Advocate on behalf of L.Rs of respondent No. l argued that the appeal abated for the failure of the heirs of the appellant to be impleaded. It was added that the appellant died on 17-11-1971 while application for impleading present appellants, who are only some of his heirs, was made on 25-3-1991. It was submitted that no application for impleading Muhammad Shaft and Muhammad Rafiq, legal heirs of the appellant, has been made till today.` It is a case of gross negligence and provisions of section .5 of the Limitation Act are not applicable.
The learned counsel, in this behalf, has referred to Ghulam Haider v. Mst. Raj Bharri and others (PLD 1986 SC 169 = PLD 1973 Lah. 372), Sardar Noor Hussain v. Chief Settlement Commissioner etc. (PLD 1983 SC 62), Shah Muhammad and others v. Muhammad Bakhsh (PLD 1972 SC 321); Chanan Din v.
Gulzar Muhammad Khan and another (PLD 1970 Peshawar 94), Evacuee Trust Property Board, Lahore and another v. Syed Abdus Saleem and others (1990 SCMR 143) and Sheikh Shabbir Hussain v. Abdul Raoof and another (1977 SCMR 287).
On merits it was argued that the property was put to public auction. Ghulam Hussain, respondent No. 1, was the highest bidder, which was approved and P.T.O. Was issued/, in his name on 20-10- 1960 while PTD was on 7-1-1964. He thereafter proceeded to serve the original appellant with a notice dated 9-1-1961 under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter to be referred as Act of 1958). Thereafter he filed ejectment petition against him on 21-1-1964 and the Rent Controller proceeded to pass order under section 13(6) of the Rent Restriction Ordinance on 12-6-1965, which was ultimately confirmed by the Hon'ble Supreme Court. Then the ejectment petition was allowed by the Rent Controller vide order dated 28-7-1975, which was assailed through an appeal before the Appellate Authority. The same was dismissed on 20-4-1977, which was assailed through two S.A.Os. Nos.399/77 and 444/77, which were dismissed on 27-3-1978. Thereafter he in order to defeat the ejectment order proceeded to hand over the possession to Muhammad Sharif etc., who filed suit for declaration, which was dismissed on 4-4-1978 while the appeal was dismissed on 22-5-1980. Thereafter the landlord obtained the possession 9f the premises through Court on 25-5-1982. The appellant moved application before the D.S.C. For setting aside of the auction. The same was dismissed on 21-11- 1960, which was assailed through appeal before the Additional Settlement Commissioner, who accepted the same vide order dated 13-2-1961, which was assailed by auction-- purchaser through revision before the Settlement Commissioner, who accepted the same vide order dated 27-3-1961, which was challenged before Chief Settlement Commissioner but petition was dismissed vide order dated 30-6-1962. It was added that the case of the appellant throughout was that it is an evacuee property and he was entitled to its transfer. These orders were not challenged by him in any forum and became final. Thereafter the appellant opened another front against the transferee when he moved application under section 4(3) added by Ordinance XIII of 1964 on 28- 12-1964. He moved application before the Settlement Commissioner on 10-8-1965, which was dismissed on 11-12-1965. This order was not further challenged by him through an appeal in the High Court. He, however, moved yet another application under section 4(3) of the Act of 1958 on 12- 9-1967 before C.S.C. The same was made over to Settlement Commissioner, who dismissed the same on 25-5-1968. The present appeal is directed against this order. It was argued that the Chief Settlement Commissioner delegated his powers under section 4(3) of the Act of 1958 vide Notification dated 17-2-1965. The learned counsel in this behalf has referred to Divisional Evacuee Trust Committee, Karachi v. Muhammad Idris Qureshi and another (PLD 1978 Karachi 125).
It was argued that the orders passed by the Settlement Authorities were validated with the result that the cases decided were not to be reopened and transfer orders issued were valid. The learned counsel in this behalf has referred to section 3 of Ordinance XIII of 1964 promulgated on 28-12-1964, section 32 of the Evacuee Trust Properties (Management and Disposal) Act of 1975 and relied on Khalid Mahmood and others v. Ch. Ghulam Muhammad (1982 SCMR 557), Evacuee Trust Property Board v. Miraj Din and others (1982 SCMR 1007), Government of Pakistan v. Nizamuddin (1994 SCMR 1908), Mst. Mariam Bai v. Islamic Republic of Pakistan and 5 others (1993 SCMR 515), Divisional Evacuee Trust Committee v. Muhammad Idris Qureshi and another (1984 SCMR 851), Mst. Maryam Bibi v. Muhammad Ibrahim and another (1973 SCMR 49), Ch. Ghulam Muhammad v. Mian Habib- ur-Rehman and others (PLD 1982 Lahore 368), Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore etc. (PLD 1968 SC 101) and D.B. Judgment of this Court in S.A. No.18 of 1969. It was added that the Settlement Courts were competent to decide the status of property up to 28-12-1964 when Ordinance XIII of 1964 was promulgated. The learned counsel in this behalf has referred to Divisional Evacuee Trust Committee, Karachi (PLD 1978 Karachi 125) while appeal against this decision was dismissed by the Hon'ble Supreme Court and the judgment is reported as 1984 SCMR 851. On merits it was argued that there were two other Plots Nos.5/331 and 5/332, which also belonged to Hakam Devi and were put to auction along with the plot subject-matter of this appeal. There were ejectment proceedings and the Rent Controller made a reference to the Settlement Commissioner for determination of the status of the property, who vide order dated 19-10-1968 held that it was not an evacuee trust property while the appeal was dismissed by this Court on 3-4-1970. This order was not challenged any further and this way became final. It was added that C.M.3/70 for transposition of Evacuee Trust Property. Board, respondent No.2, as appellant was dismissed by a Division Bench of this Court on 14-9-1970. Again this order was not challenged in any forum. It also attained finality like many other orders. The learned counsel thereafter referred to application of Muhammad Hayat dated 20-10-1960, according to which, he has requested for cancellation of the auction in favour of respondent No.1.
The Settlement Commissioner, Rawalpindi while dismissing his appeal clearly held that at one point of time Muhammad Hayat has been seeking its transfer while according to the rent deeds available on the file of Deputy Custodian the property was clearly shown that of Hakam Devi and not trust property. It was argued that section-5 of the Limitation Act was not applicable to the case of abatement. In this behalf, reference was made to Chairman, Evacuee Trust Property, West Pakistan, Lahore v. Muhammad Din and another (PLD 1971 Lahore 217), Chairman, District Evacuee Trust Committee, Rawalpindi v. Sharif Ahmad and others (PLD 1991 SC 246), Zafarullah Khan and another v. Mst. Hussain Bibi (PLD k968 SC 61), Ahmad Din v. Mst. Rasul Bibi (PLD 1.968 SC 213) and Mst. Sakina Bibi v. Sher Khan and others (1982 CLC 1190). The next argument was that a tenant has no locus standi to challenge the title of his landlord. The learned counsel in this behalf has referred to the judgments in the cases of Master Chiragh Din v. Abdul Hakim and another (PLD 1974 Lahore 370), Abdul Ghaffar v. Secretary, Divisional Evacuee Trust Committee and 13 others (PLD 1976 Karachi 701), Ghulam Jilani v. Syed Aftab Ahmed (1982 CLC 1743) and judgments of the Hon'ble Supreme Court in C.A. No.199/86 and C. P. No.482/70 as well as of this Court in W.P. No. 180-R/82 and S.A. No.1/69. It was argued that the orders passed by the Settlement Commissioner under section 4(3) are legal and binding. The same attained finality because these were not further challenged.
In this behalf, reliance is placed on Evacuee Trust Property Board v. Allah Rakha and others (1993 CLC 1766) and Ghulam Mohi-ud-din v. Chief Settlement Commissioner, Lahore and 2 others (PLD 1964 SC 829). It was added that even if an order is void yet it-' cannot be ignored to the convenience of a party. The same has to be set aside in the manner and forum provided. The learned counsel in this behalf has referred to The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), Nawab Syed Raunaq A.I etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236), S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another (1978 SCMR 367) and Riasat A.I and 2 others v.
Mahmood Ahmad (1993 CLC 120). It was argued that no reference is competent after decision by the Settlement Commissioner and the present appeal was barred by limitation. In this behalf, reliance is placed on the judgment of Hon'ble Supreme Court in the case of Zafarullah Khan and another (supra).
4. Malik Azam Rasul, Advocate for respondent No.2 argued that his client has moved a reference which is pending before the Chairman, therefore, this appeal may be accepted and he be allowed to decide reference.
5. The learned counsel for the appellant while summing up the arguments submitted that the property was held to be evacuee trust property.
6. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and precedents. I would first of all deal with the status of the plot in dispute. I would hold that the same was evacuee property and not evacuee trust property for the following reasons that: Firstly, the original appellant Muhammad Hayat was lessee of Hakam Devi and after coming to know of the auction he in the first instance requested for the transfer of the property in his name; Secondly, this issue was thrashed threadbare and it was concluded by the Settlement Commissioner vide order dated 27-3-1961 that it was not evacuee trust property; Thirdly, there was reference in respect of other two Plots Nos.5/331 and 5/332. The decision was again that the same were evacuee properties and not evacuee trust properties. This decision was upheld by this Court in Settlement Appeal dismissed on 3-4-1970. The appellant in para. 3 at page 3 of the Memorandum of Appeal has admitted the position of three plots was exactly the same; Fourthly, there was no indication in the lease deed executed by the original appellant in favour of one Hakam Devi that the property was that of Mandar. On the other hand, the property has been described as Plot No.5/333 Sabzi Mandi, Gujrat; Fifthly,the orders of Settlement Commissioners dated 27-3-1961 and 16-12-1965 had attained finality.
7. Now coming to the appeal. Muhammad Hayat, appellant died on 17-11-1971 while the application to implead some of the heirs was made on 25-3-1991. This is not all. The heirs of Muhammad Shafi and Muhammad Rafiq sons of Muhammad Hayat appellant, were not impleaded as party at all.
There is no justification, whatsoever, for setting aside the abatement. The learned counsel for respondent No. l has rightly referred to the cases of Ghulam Haider, Sardar Noor Hussain, Syed Abdus Saleem and others and Sheikh Shabbir Hussain (supra).
8. Now coming to the argument of the learned counsel for the appellants that since respondent No.1 has proceeded to raise construction on the site in violation of the order of status quo, therefore, his heirs should not be heard in the appeal. The learned counsel was repeatedly asked to refer to the law in support of this fantastic proposition instead of his argument he would simply switch over to other points. The argument is absolutely without any merit.
9. The litigation on the settlement side ended with the order of Chief Settlement Commissioner dated 30-6-1962. The appellant thereafter proceeded to file application under section 4(3) of Act, 1958 before the Settlement Commissioner, which was dismissed vide order dated 11-12-1965. The objection now is - that this order is without jurisdiction because application under section 4(3) of the Act of 1958, could be decided by the Chief Settlement Commissioner,. On the other hand, learned counsel for respondent No. l has pointed out that the powers under section 4(3) were deleted by the Chief Settlement Commissioner to all the Settlement Commissioners. The learned counsel in this behalf has referred to the case of Divisional Evacuee Trust Committee, Karachi (supra). The relevant portion of the same reads as under:-- .... That being so, the reference made to the learned Additional District Judge/Settlement Commissioner on the basis of the report of the Director, Enforcement (Properties and Claims) was, truly, a reference under section 4(3) of the Act and was decided as such, competent as he was to exercise the jurisdiction under section 4(3) in view of the Notification No. 1048-Admn-Reh-65 dated 17-2-1965 whereby all Settlement Commissioners were delegated the powers of the Chief Settlement Commissioner under the section for determining the status of such disputed properties (see Note on page 101 of M.A. Latif's Book on the Displaced Persons (Compensation and Rehabilitation) Act, 1958, 169 Edition). , Therefore, the Settlement Commissioner exercised the jurisdiction vested in him and the order was not void. This order having not been challenged through an appeal as provided in subsection (4) of section 4 of Act, 1958, therefore, attained finality and the second petition for the same purpose was rightly dismissed by the Settlement Commissioner vide order dated 25-5-1968. The successive petitions on the same subject are against the purpose of Codified Law. The same could not be set aside directly, indirectly or impliedly, therefore, it is held that the order of the Settlement Commissioner dated 11-12-1965 was legal, valid and binding on the parties.
10. Now coming to the validation. It seems from section 3 of Ordinance XIII of 1964 that the Legislature wanted to validate thing done, action taken, order passed. The same reads as under:-- "3. Validation---Anything done, action taken, order passed, rule made or notification issued, or purporting to have been done, taken, passed, made or issued, under any of the aforesaid Acts, before the promulgation of this Ordinance, shall be deemed to have been done, taken, passed, made or issued under such Act as amended by this Ordinance, and shall have and shall be deemed always to have had effect accordingly."
Therefore, the order of the Settlement Authorities to treat the property as evacuee, its decision to dispose of the same by open auction and above all the orders of the Settlement Authorities including that of Chief Settlement Commissioner dated 30-6-1962 were valid. As such there was no scope for making a reference under section 4(3) of Ordinance XIII of 1964 as it was a past and closed transaction. This is not all. These actions were again protected under, section 32 of Act of 1975, which reads as under:-- "32. Savings.---Anything done, action taken, appointment made, order passed, rule or scheme made, notification or instruction issued, or purporting to have been done, taken, made, passed or issued by or under the provisions of either Act immediately before the commencement of this Act shall be deemed to have been done, taken, made, passed or issued under this Act and shall have effect accordingly."
This would validate the order of the Settlement Commissioner dated 11-12-1965. The learned counsel for the appellants laid great stress on the judgment of Hon'ble Supreme Court in the case of Devachand Muljimal (supra) but lost sight of the fact that this judgment was announced on 18- 11-1963 while Ordinance XIII was promulgated on 28-12-1964. This makes the difference between the precedent case relied by him and the case in hand.
11. The upshot of the above discussion is that this appeal is dismissed with costs both on merits as well as having abated.