SARDAR MOHAMMAD RAZA, J.---The official residence of Senior Superintendent of Police Hazara (now D.I.-G Hazara) admittedly was an evacuee property. The Permanent Transfer Deed was issued in the name of Police Department of S.S.P. Hazara on 27-1-1965. There was an excess area in the vicinity of this Bungalow on a portion whereof there were houses since 1947. The occupants of the houses lived for some times un-interferred but subsequently the police department started claiming title thereto. At this stage they, i,e,, Muhammad Aslam son of Kala Khan and 18 others filed a suit on 20-12-1976 for declaration to the effect that out of the whole area the police department as per PTD dated 27-1-1965 (Exh. P.W. 1/1) was the owner of only 1,93,148 Sft. and had no concern with the surplus area in possession of the plaintiffs measuring 21,252 Sft. They also sought permanent injunction to the effect that the police department shduld remain confined to 1,93,148 Sft. and should not disturb the petitioners by initiating any proceedings of ejectment or dispossession otherwise than in due process of law.
2. The department contested the suit claiming title to the entire area and claiming that the plaintiffs were tenants under the department paying rent thereto. Evidence pro and contra was recorded on the issues framed. The unfortunate litigation is pending between the parties for the last more than 21 years during which the case once went up to the honourable Supreme Court wherefrom it was remanded.
3. The last judgment delivered by the learned Senior Civil Judge Abbotabad in the case was of 26- 2-1991 whereby the plaintiffs were non-suited. The judgment, in appeal, was upheld by the learned District Judge, Abbottabad on 11-7-1993 against which the plaintiffs have filed the instant revision on 24-7-1993.
4. The fact that the entire property is an evacuee property, is not disputed. A PTD was issued by the department concerned in the name of Superintendent of Police Hazara on 17-1-1965 which is Exh.
P.W. 1/1 on record. When the Police department felt the existence of the plaintiffs to be adverse to their interest, they, after the institution of the present suit and in the year 1970 filed an application to the department covered for the amendment of the PTD dated 17-1-1965 through an application Exh.
P.W. 1/D-3. At this stage the department conferred for the first time mentioned some Khasra numbers and issued an amended PTD on 4-9-1979 Exh. D.W. 1/126 whereby the entire excess area was included in the ownership of the police department. The plaintiffs claimed that the department was not entitled to the area exceeding 1,93,148 Sft and that under the garb of amendment an area measuring 21,252 Sft. falling in the possession of the plaintiffs was also brought within the entitlement of the police department.
5. The learned lower Courts were unanimous in holding that the civil Court had no jurisdiction to alter the PTD and that the amended allotment vide Exh. D.W. 1/126 was a valid allotment and further that the plaintiffs had been paying rent to the police department and hence under Article 115 of Qanun-e-Shahadat (Section 116 of Old Evidence Act) they were estopped to challenge the title of their landlord. Major argument before me also were addressed on these points.
6. Learned counsel for the petitioner vehemently challenged that the Settlement and Rehabilitation Authorities had no jurisdiction to amend a Permanent Transfer Deed issued on 17-1-1995 and that too by making a drastic increase in the area. That no appeal under the law had been filed against original PTD dated 17-1-1965 which, by that time, had become final. He further went on to argue that in the year 1979 the very law governing the affairs i,e, the Displaced Persons Compensation and Rehabilitation Act, 1958 had stood repealed through Ordinance XV of 1974 which subsequently merged into Act XIV of 1975.
7. To what extent a change can be brought about in a PTD, we can seek guidance from numerous verdicts of the superior Courts. Rehmatullah v. Mohammad Mushtaq (1989 MLD 1298) is a case where it was held that the Deputy Settlement Commissioner has no jurisdiction to interfere with the transfer order and to re-open the matter under the garb of correcting the number of property transferred. In that case an increase in the price was declared void. Fazal Elahi v. Chairman Evacuee Trust (1987 CLC 1010) and Haji Rehmatullah v. Additional Settlement Commissioner (1987 CLC 1084) are the cases where it was held that once a property is permanently transferred with completion of all formalities, it goes out of the compensation pool and ceases to be an evacuee property. Even cancellation of transfer could not be ordered, for, the Settlement Authorities were considered to have become functus officio.
8. With the repeal of Displaced Persons Compensation and Rehabilitation Act, 1958 all the past transactions were considered a closed chapter except for the pending matters for which Notified Officers were appointed as such by Ordinance XV of 1974 subsequently merging into Act XVI of 1975. The jurisdiction of a Notified Officer is defined by the Honourable Supreme Court in Sufi Muhammad Din's case reported as 1991 SCMR 905 (c). There, an auction was confirmed and a PTD was issued to a party which was subsequently changed by the Notified Officer. The Supreme Court held that the Notified Officer could not change such PTD. Lahore High Court in Muhammad Bashir v.
Ghulam Sarwar (1991 MLD 2072) went to the extent of holding that where transfer of evacuee property attained finality, it could not be challenged even in the Civil Court. Once again the Supreme Court observed in Khawaja Bashir Ahmad's case (1991 SCMR 1604) that a transfer of property attaining finality before repeal of Evacuee Laws could not be disturbed by or before a Notified Officer who, it was held, had no jurisdiction to re-open the matter. So much so that even the High Court was held to have had no jurisdiction to remand the case to the Notified Officer.
Orders passed by both the forums were set aside.
9. With regard to the matter of correction in Muhammad Ramzan's case decided by Sindh High Court in PLD 1980 Karachi 99(b), it was held that correction of accidental or clerical mistakes were allowed only when the granting of extra right was not involved. In view of such numerous verdicts of the superior Courts, one is left with no choice but to hold that the Settlement Authorities as well as the Notified Officer has no authority to alter or amend a PTD which had become final under the law.
The corrections are permissible only when they aim at clerical or accidental mistakes and that too when the area is not altered. I hold that the increase of area in the instant case through amended PTD Exh. D.W. 1/126 was void, unlawful and without jurisdiction. The Police department shall be held entitled only to what has been allotted to it vide original PTD dated 17-1-1965 Exh. P.W. 1/1.
10.Another stance taken by the learned counsel for the petitioner was that under Settlement Scheme I para. 19 read with para. 1(3) of Chief Settlement Commissioner Memo. No .301-P1 /Reh : /60, dated 19-1-1960, the authorities had no power to transfer an excess area beyond an area measuring three times the plinth area of the house and that no hands could be laid by transferee on such excess land. The learned counsel relied upon Muhammad Bashir v. Settlement and Rehabilitation Commissioner (PLD 1983 SC 143) in addition to PLD 1980 SC 64, 1996 SCMR 558(b), 1982 SCMR 348, PLD 1991 SC 1. This argument would be answered at a later stage in this judgment when appropriate.
11. Next is the question of estoppel which in the instant case has been a pleasant intellectual as well as legal exercise. "Once a tenant always a tenant", is a caption repeated so often and with such convenience carrying an element of absoluteness, that real intricacies of the subject get shrouded in a mist of erroneous belief which never is or was of universal application. Principle of estoppel between a landlord and tenant is always relevant to the point of time when the tenancy was created. The status that existed at the time of such creation of tenancy cannot be denied by the parties, especially, the tenant. But, any development taking place at a subsequent stage bringing some void into the very entity of status of the landlord, can always be benefited from by the tenant.
There are occasions when subsequent to the creation of tenancy the title of landlord falls into jeopardy. Such subsequent development can be drawn premium from by the tenant despite the fact that he had been regularly paying rent to the landlord and despite the fact that he had been admitting the tenancy.
12. Privy Council observed in Kumar Krishan's case (AIR 1937 Privy Council 251) that section 116 (Old Evidence Act) is not exhaustive of all cases of estoppel between landlord and tenant. In that case there was a landlord who let the tenant in but subsequent trouble arose between the tenant and the reversioner. It was held that the landlord who initially entered into contract with the tenant was distinct from the person claiming to be reversioner. Any weakness in the status of reversioner could be challenged by the tenant despite the fact that the tenancy was claimed to have had flown from the original landlord. The principle was held to be applicable to a tenancy which continued as such from the beginning till end and it was held not applicable to a circumstances where the tenant pleaded that the title of the original landlord had since come to an end.
13. Similar principle was followed in Mohendra Nath Haldar's case (AIR 1994 Calcutta 305 (d), Shiba Prasad Singh's case (AIR 1947 Patna 45) and Sar Biland's case (1996 MLD 948). A landlord happened to be a transferee from Settlement Authorities but the P.T.O. issued in his favour subsequently turned out to be forged and illegal. It was held in Abdul Aziz v. Ghulam Sarwar (PLD 1978 Lahore 978) that it vested no status in the transferee of landlord and equally attracted no principle of estoppel. In Muhammad Yousaf v. Said Mir (PLD 1979 Peshawar 20) the tenant questioned the title of his landlord on grounds of tenancy having come to an end on happening of certain events subsequent to establishment of tenancy. If was held that the principle of estoppel was not attracted.
14. In the instant case the S.S.P. was not a claimant either at the initial stage. No rent was being paid by the petitioners at the initial stage. It was paid after the issuance of some P.T.D. the amendment whereof is now challenged by the petitioners. The status of the landlord has fallen into jeopardy and hence on getting knowledge of this legal phenomenon, the tenant can turn around and deny status of his landlord, no matter what conduct has he shown previously or what admissions he has made. Admission of fact is only relevant and not conclusive. It is never binding when it happens to be wrong in point of fact or made in ignorance of legal right. It becomes binding only when in consequence of such admission, the other party had altered its position. In the instant case the petitioners have been exhibiting a conduct and have been making admissions in ignorance of their legal right. Their conduct or admission never made the opposite party to alter its position. This principle was elaborately discussed in Ahmed Khan v. Rasool Shah (PLD 1975 SC 311 (e). Our own High Court in Sardar Muhammad v. Haider Zaman (PLD 1993 Peshawar 81 observed that erroneous admission was not enough to deny the relief to which a party was otherwise entitled. In brief, the status of the respondent whom the petitioners paid rent has become questionable and, thus, the petitioners could take complete benefit therefrom and could deny the title of their landlord from the date when such title became doubtful or when it so came to the knowledge of the petitioners.
They are not hit by the principle of estoppel.
15.I feel it is a stage where one should revert to the question which had remained unanswered at the close of para. 10 above. The petitioners are aggrieved to the effect as to why the excess area given to the S.S.P. Bungalow, has exceeded three times the plinth area of the Bungalow. As held earlier, the respondent is entitled to the area allotted to him vide P.T.D. Exh. P.W. 1/1. This P.T.D. has become final. The law pertaining to Rehabilitation also stands repealed and hence the authenticity of that document cannot now be brought into question before the Civil Court though the subsequent amendment thereof could be challenged being void and without jurisdiction. Whether the area given in excess of three times the plinth area is lawful or not, should be considered a closed chapter. Similarly what entitlement the petitioners have under such laws at the moment, is also not within the jurisdiction of the Civil Court. They can contest for such right before the competent Authority if any or before the Notified Officer, if at all.
16. Last we come, to the question of extent of entitlement of the S.S.P. strictly under the P.T.D. exhibit P.W. 1/1 issued at the first instance. The petitioner case is that as per P.T.D. the total area measured 1,93,148 Sft. Including the plinth area but this is practically controverted by the PTD Exh.P.W. 1/1 itself.
Had the total area been the same as alleged by the petitioners, it would have been narrated in terms of 'Bungalow No, 1697 Civil Lines, Abbottabad measuring 1,93,148 Sft". But, it is not the case in hand and the description of the Bungalow with details is given to the effect that "Bungalow No, 1697 Civil Lines, Abbottabad alongwith excess area measuring 1,93,148 Sft". This indicates beyond doubt and in plain reading thereof that it is the excess area that measures 1,93,148 Sft while Bungalow No, 1697 i,e, the constructed area is in addition thereto. The stance taken by the petitioners is not logical.
17. In this case we have a report dated 20--1-1981 Exh. CW 1/1 of the local Commissioner wherein he has measured the entire house which consists of a main structure and two out-houses (barracks) attached to the main structure and as old as original construction. If the area under the main structure as well as the out-houses is added to the aforesaid excess area, the total measurement comes as follows:- Main strucure of S.S.P.
Bungalow8294 Sft.
One out-house (barrack) 4636 Second out-house (barrack)5247 Excess area 193148 Total area 211325 The respondent S.S.P. house according to the P.T.D. Exh. P.W. 1/1 commands the total measurement as above. No area in excess thereof can be claimed by the S. S. P. /D . I . G' s . house.
18.Consequently both the impugned judgments dated 26-2-1991 and 11-7-1993 of the two Courts below are set aside, the revision petition is accepted and a decree in favour of the petitioners/plaintiff's is granted to the effect that total area of the defendants S.S.P./D.I.G's. house (consisting of main structure plus two out-houses and the excess area) comes to 2.11.325 Sft. Any area in excess thereof is not the property of aforesaid Bungalow and any increase shown through amended P.T.D. dated 4-9-1979 Exh. D.W. 1/126 is void unlawful and without jurisdiction. Counter- claim by the petitioners of allotment can also be not entertained by the civil Courts. If advised and if allowed under the law they may resort to the proper authority.