The brief facts leading to the filing of this revision application are that the predecessor of the applicant one Fateh Muhammad, who was allotted a portion on the first floor of House No,E/2841 Fort Area, Hyderabad, by the Settlement Authorities. The respondents were residing in a cell which, according to the applicant was7 a part and parcel of the portion allotted to him. The original orders of allotment do not appear to be available on the record. However, it appears that the predecessor-in-interest of the applicant Fateh Muhammad and that of the respondents Abrar Hussain preferred their claims to the aforesaid Cell (disputed property) by way of revision which was decided by the Additional Settlement Commissioner, Hyderabad vide order, dated 16-12-1961.
The relevant part of the order reads as follows:-- "Mr. Abrar Hussain is in occupation of the Cell which is situated right below the portion of the building which has been transferred to Mr. Fateh Muhammad. The Cell cannot be treated as independent units and transferred to the occupants thereof. I am, therefore, not inclined to transfer the Cell in occupation of Mr. Abrar Hussain to him. His revision is therefore, not allowed.
Mr. Fateh Muhammad is claimant displaced person and has been transferred a portion of the building above the cell. As the cell is part and parcel of the building I transfer it to Fateh Muhammad alongwith the house on his C.H. Form. He will pay extra-evaluation price of the cell provided it has already been included in the transfer price, which has been charged from him."
2. It appears that one Mr. Ghulam Haider Baloch, who was not a party to the revision application, but was an occupant of another part of the building applied for review of the above order, dated 19-12-1961. In the title of the aforesaid order, the date of the original order has been mentioned as 12-12-1961 and not 19-12-1961. This error which has given rise to considerable controversy subsequently. However, as candidly conceded by Mr. Qazi Munawar Ali only appears to be a typographical mistake. Any way by order, dated 28-2-1962, the Additional Settlement Commissioner, reviewing his earlier order, ordered as follows:-- "I exclude the Cell from the transfer order of Fateh Muhammad. The cell and the appurtenant to the building will be distributed according to the instructions of the Chief Settlement Commissioner."
3. It seems that no instructions were received from the Chief Settlement Commissioner and no fresh order for transfer of the cell was passed. In the meantime the applicant arrived at an understanding with Mr. Ghulam Haider Baloch at whose behest the order, dated 28-2-1962 was passed and a compromise application was submitted before the Additional Settlement Commissioner, who vide order dated 12-12-1966, orders as follows:-- "In view of the compromise arrived at between the parties, the same is hereby accepted, hence this application is disposed of in terms of the compromise arrived between the parties."
4. Subsequently a P.T.D. was issued to the applicant on 28-11-1974. Initially the cell was not included in the P.T.D. but upon an application submitted by the applicant, contending that in view of the compromise recorded on 21-12-1966, the original order stood restored, the P.T.D. was amended on 2-4-1976 so as to include the disputed cell as well. In 1977 the applicant, contending that the respondents were his statutory tenants filed proceedings for their ejectment before the Rent Controller. The respondent denied the landlord and tenant relationship. The Rent Controller as well as this Court found in favor of the applicant. In the meantime the respondent filed First Class Suit No,353 of 1981, seeking a declaration to the effect that the addition in the P.T.D. transferring the disputed cell to the applicant was fraudulent and without jurisdiction, that the cell was still available for transfer and, by way of consequential relief a direction to the defendant No,3 (Additional Deputy Commissioner), Hyderabad to transfer the same to the respondent. The respondent also preferred a petition for leave to appeal before the Honorable Supreme Court against the judgment of this Court in F.R.A. No,42 of 1984, which was dismissed by the Honorable Court with the observation that if the respondents' suit was decided in their favor they could always obtain repossession of the property.
5. The applicant in their written statement questioned the maintainability of the suit and the bona fides of the respondent alleging that the suit was only a counter-blast to the ejectment application filed by the respondent. The respondent asserted their title to the disputed property on the basis of the P.T.D. The fact that the order of the Additional Settlement Commissioner, dated 19-12-1961 allotting the disputed property to the respondent had been reviewed by a subsequent order, dated 28-2-1962 was not denied. However, the applicant asserted that the review application was only filed by Ghulam Haider Baloch (respondent No,5) and did not confer any rights upon the contesting respondent and the matter between the applicant and respondent No,5 having been compromised; the applicant could not claim any interest in the property. The allegation of concealment of facts was emphatically denied.
6. Ghulam Haider Baloch, the respondent No,5 who was not initially arrayed as party to the suit was joined upon an application made by him. He filed a written statement alleging that the cell (disputed property) was not independently transferable unit and was attached to his house and not that of the applicant. He contended that it had been duly transferred to him and such transfer had attained finality. Explaining the compromise with the applicant he contended that the same related to another cell. After recording evidence and hearing the parties the suit was dismissed by the trial Court. The respondent No,4 preferred an appeal against the judgment of the trial Court, dated 23-12-1993 and the VIth Additional District Judge, Hyderabad by his judgment, dated 31-8- 1994 partially allowed the same inasmuch as though the relief claim by the respondent No,4 were declined, it was held that the disputed property belonged to respondent No,5.
7. Aggrieved by the aforesaid order the applicant preferred this revision application. Interestingly it is contested only by the respondent No,4 and the respondent No,5 though served did not enter appearance. Mr. Kazi Munawar Ali, learned counsel for the applicant in the first place contended that the suit has been dismissed by the trial Court and no appeal or cross-objection against the decree having been preferred by the respondent No,5 there was no justification for the appellate Court to decide in his favor. He also questioned the findings of the appellate Court as to fraud and misrepresentation said to have been committed by the applicant in obtaining allotment of the disputed plot. Moreover, he argued that the respondent No,5 having compromised the dispute with the applicant and such compromise having been duly recorded by the Additional Settlement Commissioner, the aforesaid respondent was estopped from claiming title to the disputed property and the appellate Court acted with material irregularity in recording of finding in his favour. As regards respondent No,4 learned counsel contended that the claim of such respondent had been initially rejected by the Additional Settlement Commissioner vide order, dated 19-12-1961 against which no further appeal or legal proceedings were preferred, as such the aforesaid respondent could not take advantage of' review application preferred by another party.
8. Elaborating his submissions and explaining the factual background, Mr. Kazi Munawar Ali argued that the claim of the respondent No,4 to the disputed property was specifically rejected in the order, dated 19-12-1961 and such order having not been questioned further had attained finality in so far as the aforesaid respondent No,4 was concerned. Indeed the same was reviewed at the behest of the respondent No,5, but only to the extent that the disputed property was excluded from the allotment made in favor of the applicant but no rights were conferred either upon the respondent No,4 or the respondent No,5. Moreover, upon the matter having been compromised between the applicant and the respondent No,5 the dispute between the parties giving rise to the order, dated, 28-2-1962 stood resolved and accordingly the order, dated 19-12-1961 stood revived.
9. I regret I cannot subscribe to this contention. Under the order, dated 28-2-1962 the property was not allotted to any of the parties. It was only excluded from the entitlement of the applicant and was required to be allotted in accordance with law. Assuming that the order was lawfully made the contesting parties could not nullify the same by their volition. Moreover, while the applicant has contended that the order related to the disputed property, which admittedly is and has been in possession of the respondent No,4, the compromise application signed by the applicant and the respondent No,5 submitted before the Additional Settlement Commissioner on 26-9-1966 speaks of a cell in the joint possession of the applicant and the respondent No,5. The aforesaid compromise, therefore, is of no legal effect as far as the disputed property is concerned. In the alternative, however, Mr. Kazi Munawar Ali argued that the order, dated 28-2-1962 was without jurisdiction inasmuch as the power of review available to the Additional Settlement Commissioner had ceased to remain available as a consequence of Ordinance II of 1962, promulgated on 13th January, 1962, whereby subsections (2) and 4 of the Displaced Persons (Compensation and Rehabilitation) Act, were deleted. Learned counsel indeed appears to be correct. It is settled law that there is no inherent power of review vesting in statutory Tribunals and such power must be conferred by law After the omission of the provisions conferring review jurisdiction upon the Additional Settlement Commissioner, order passed was indeed without Jurisdiction and Coram non juice. Consequently, I am constrained to hold that even if aforesaid order was not brought to the notice of the Authority at the time of issuance of the P.T.D., it makes no difference whatsoever and hence, the latter cannot be set aside on the ground of having been obtained through fraud or misrepresentation.
10.Attacking finding of the appellate Court to the effect that the disputed property belonged to the respondent No,5, Mr. Kazi Munawar Ali argued that no evidence had been led by the aforesaid respondent at the trial to indicate that the disputed property was ever been allotted to him. He did not even prefer an appeal against the judgment of the trial Court, but the learned appellate Court by merely relying upon a judgment of this Court, dated 20-8-1974' dismissing. Constitutional Petition No,87 of 1967, proceeded to record the aforesaid finding. I have gone through this judgment which seems to indicate that part of the building was transferred to respondent No,5, however, there is nothing to indicate that the cell in question was also part of such allotment. In fact, the orders of the Additional Settlement Commissioner, dated 28-2-1962 and 22-12-1966 as well as the compromise application, dated 27-9-1966 unmistakably show that the respondent No,5 was never allotted or was in exclusive possession of the disputed property, learned counsel, therefore, appears quite right in asserting that the finding of the first Appellate Court to the above extent, were based on no evidence and required to be set aside.
11. With respect to the respondent No,4 Mr. Munawar Ali argued that the claim of the aforesaid respondent had been conclusively rejected by order, dated 19-12-1961 as the cell in question could not be treated as an independent will not be transferable as such to any person. This order had attained finality and the matter could not be reopened after issuance of a P.T.D. in favor of the applicant. Moreover, he contended that as far as the claim of the aforesaid respondents was concerned there was a concurrent finding of fact by the Court below, which could not be questioned by the said respondent in this revision application. Notwithstanding the above contentions I requested the aforesaid respondent (who was not represented by her counsel) and her son Nizam Ali, to point out what basis she was seeking transfer of the property in her favor and whether the order, dated 19-12-1961 suffer from any legal infirmity.
12. In the first instance Nizamuddin reiterated that the P.T.D. was granted in favor of the applicant only because the order in review, dated 28-2-1962 was fraudulently suppressed and it was not correct to say that the order, dated 19-12-1961 had been set aside. He contended that the findings of both the Courts below to the effect that what was reviewed was not the order, dated 19-12-1961 but some other order, dated 12-12-1961 to such effect the contention appears well-founded and in fact Mr. Munawar Ali candidly conceded that the order, dated 19-12-1961 was indeed reviewed and the date 12-12-1961 only appears to be a typing mistake. I am, therefore, clearly of the opinion that the findings of the Courts below to the effect that another order, dated 12-12-1961 had been reviewed were premised on conjecture and not supported by any evidence. Indeed if the order in review was legally sustainable the applicants could not lay any claim to the disputed property.
Nevertheless in view of my finding that it was coram non judice, erroneous findings of the Courts below are not of much help to the respondent. I invited the respondent No,4 to seek legal assistance and point out any infirmity in the order, dated 19-12-1961, She stated that she was unable to afford counsel. I even requested Advocates present in Court whether they would be able to render any voluntary assistance, but they expressed inability on the ground of unfamiliarity with the Settlement laws. In any case no infirmity could be found or was pointed out with regard to the order, dated 19-12-1961. It must, therefore, treated as a final order competently passed.
13. In any event even if I were to hold that the aforesaid order was competent reviewed, it would be of no help to the respondent. At best it could be assumed that the property continued to remain available for disposal till the repeal o the Displaced Persons (Compensation and Rehabilitation)
Act, 1958, therefore, the Evacuee Property Displaced Persons Laws (Repeal) Ordinance, 1974 by operation of section 3(1) of the Ordinance. The property stood transferred to the Provincial Government for disposal according to the scheme prepared by the Government. No such scheme made after 1974 enabling allotment in favor of the respondent No,4, was brought to my notice.
Consequently, in either case the respondent No,4 cannot claim a right or interest in the aforesaid property and as such their suit must fail.
14. In view of the above I would allow this application for revision, set aside the order of the Appellate Court and restore that of the Trial Court though for somewhat different reasons. There