CH. MUHAMMAD ARIF, J.---Briefly stated the facts leading to instant appeal by leave of this Court against the judgment, dated 10-12-1995 of the Lahore High Court, Lahore allowing Writ Petition No,543-R of 1976 of respondent No,1-(i) and (ii) by removing from the field orders of the Deputy Settlement Commissioner and Settlement Commissioner respectively, dated 7-7-1972 and 2-4- 1976 are that the private parties were litigating for the transfer of evacuee House/Property bearing No,S-VI-3-S-1, situated in Bhagwan Street, Old Anarkali, Lahore, On the commencement of settlement operations, the contest was between Mst. Zainab Bibi, Mst. Naseem Akhtar widow of Mr. M. Muhammad Amin, Mr. Muhammad Yaqoob and Mr. M. Muhammad Amin who had respectively applied for the transfer of the house on the basis of their respective possession vide C.H. 6469, C.H.
2599, CH 471 and C.H.
969. The property in dispute was earmarked in A.B.C. Portions with reference to a site plan prepared by a Rehabilitation Inspector on 25-1-1960 which was agreed to by the then Deputy Settlement Commissioner on 26-1-1960. After recording the statements of all the occupants, the house in question was divided into these portions which had separate stair cases but a main gate. Only three of the claimants were transferred the disputed property. Portion 'Awas transferred to Mst.
Naseem Akhtar, 'Bto Zainab Bibi and 'Cto M. Muhammad Yaqoob. It may be pointed out that the present appellants were in occupation of portion 'Cand adjacent rooms. The appeal of the appellants against order, dated 26-1-1960 was accepted by the Additional Settlement Commissioner on 6-8-1960 holding that "....Major portion of 'Cis in possession of Muhammad Amin in pursuance of valid order, therefore, this portion is transferred to him " .In appeal No,1955/B of 1960 titled Mst. Zainab Bibi daughter of Ahmad Ullah v. Mst. Nasim Akhtar etc, the then Additional Settlement Commissioner (Judicial), Lahore declined to interfere in the order, dated 26-1-1960 on 24-5-1960. However, the appeal of Sh. Muhammad Amin, predecessor-in-interest of the present appellants bearing No,952 of 1960 , was allowed by the Additional Settlement Commissioner on 6- 8-1960, operative part whereof reads thus:-- "This property consists of three self-contained independent portions according to the learned D.S.C. Which have been transferred to Muhammad Yaqub, Nasim Akhtar and Zainab Bibi as detailed above The above factual position would show that Mst. Zainab Bibi has no case as compared to appellant Muhammad Amin and respondents Muhammad Yaqub and Nasim Akhtar as they are in possession of the property in pursuance of valid orders from the competent Authority whereas Zainab Bibi is an unauthorised occupant.
"Keeping in view the above entitlements of Muhammad Amin, Muhammad Yaqub and Nasim Akhtar I decide to transfer (to) the property them in exclusion to (sic) Mst. Zainab Bibi. A portion has been rightly transferred to Mst. Nasim Akhtar as this portion is in her occupation and her possession is in pursuance of a valid order. I decide to transfer portion B to Muhammad Yaqub who is in possession of it in pursuance of a valid order. Major portion of C portion is in possession of Muhammad Amin in pursuance of a valid order, therefore, this portion is transferred to him. The said order of the learned D.S.C. Is, therefore, amended and P. T.Os. Also be modified accordingly."
2. In 2-revisions brought by Sh. Muhammad Yaqoob and Mst. Zainabl Bibi respectively against (1)
Mst. Naseem Akhtar, Muhammad Amin and Zainab Bibi and (2) Muhammad Yaqoob, Muhammad Amin and Naseem Akhtar, the then Settlement Commissioner, Lahore eliminated the predecessor- in-title of the present appellants vide order, dated 2-8-1961. Penultimate paragraph of order, dated 2-8-1961 reads thus:-- "Mst. Zainab Bibi petitioner No,2 was transferred portion 'Bby the Deputy Settlement Commissioner.
The lower Court, however, eliminated her altogether. She is a claimant displaced person and must be given preference over non-claimant. I, therefore, accept her revision petition and transfer to her portion 'Cof this property. Muhammad Amin who is a non-claimant in this way is eliminated. He cannot deprive a claimant of her right."
3.. Last mentioned order was challenged in Review Petitions Nos.303 and 385 by (1) Sh. Muhammad Amin and (2) Muhammad Yaqoob. Malik Fateh Khan, Settlement and Rehabilitation Commissioner with powers of Chief Settlement and Rehabilitation Commissioner Pakistan vide order, dated 3-10- 1961 allowed the revision petition of the predecessor-in-interest of the present appellant, set aside the order of the Settlement Commissioner, dated 2-8-1961 and restored that of the Additional settlement Commissioner transferring portion 'Cto Sh. Muhammad Amin.
4. Mst. Naseem Akhtar obtained P.T.D. No,5902, dated 3-5-1969, copy whereof is available at page 3 of the supplementary/additional paper book-II filed on behalf of the private-respondents. The following entry appears in PTD No,5902 at the said page:-- "1. Particulars of transfer orders:--
(a) Passed by Number and date Operative part of the order with name (s) parentage, etc. Of transferee (s)
1. Original OrderI--- - -
2. Second OrderII--- - -
3. Third orderIII. Mr . Zaheer- ud-Din Ansari, Addl. S.C Lahore6-8-60 By this order the appeal tiled by Sh.
Muhammad Amin against the orders of D.S.C.II, dated 26-1-1960 was ejected.
4. IV- - - The afore-quoted entry is manifestly incorrect in that the appeal filed by Sh. Muhammad Amin against the order of the Deputy Settlement Commissioner-II, dated. 26-1-1960 was allowed by Mr. Zaheer-ud-Din Ansari, Additional Settlement Commissioner. It appears that within about 2-weeks of the issuance of .P.T.D. No,5902, Mst. Naseem Akhtar sold the disputed portion to Ala-ud-Din and Muhammad Aslam.
5. The appellants pointed out the mistaken entries in the P.T.D. Of Mst. Naseem Akhtar and applied for demarcation of their portion of the house viz., portion 'C'. After hearing Mst. Naseem Akhtar as also the vendees from the her namely, Ala-ud-Din and Muhammad Aslam, all of whom contended for noninterference in the matter of issuance of P.T.D. In her favour, the then Deputy Settlement Commissioner ordered for corrections in the P.T.D. Issued to Msi. Naseem Akhtar, schedule of property of the house at page 125 of the file and all other relevant record under his authentication and signatures. He also recorded that correction in the site plan is in blue ink. This happened on 7- 7-1972. Order dated 7-7-1972 was challenged in revision by Mst. Naseem Akhtar respondent No,3 herein and the then Settlement Commissioner, Lahore on 2-4-4976 dismissed the same with the following observations.
"1 have kept in view the urge of the learned counsel for the parties and have carefully gone through the written arguments and record available before me. I have also inspected the spot and the order of the Deputy Settlement Commissioner impugned along with the plan on which he has made the demarcation portions 'A', 'Band 'Cand am of the opinion that the demarcation made by the Deputy Settlement Commissioner is fair and needs no interference on the ground (1) that the portion being claimed by Mst. Nasim Akhtar has always been a part and parcel of the portion 'Coccupied by Muhammad Amin. (2) She never claimed this portion through her C.H. Form. (3)
According to the record she has been given the portion in her possession and now portion in possession of Zainab Bibi. The result is that the revision filed by Mst. Nasim Akhtar fails and is dismissed. The order be conveyed to the parties."
6. Orders dated 7-7-172 and 2-4-1976 passed respectively by Deputy Settlement Commissioner and Settlement Commissioner were successfully challenged by Ala-ud-Din and Muhammad Aslam sons of Jamal Din, vendees from Mst, Nasim Akhtar, through the impugned judgment dated 10-12-1995. The learned Judge in Chambers attended to the respective claims of the parties and came to the conclusion that there was force in the contention on behalf of the private-respondents (writ-petitioners) that the apportionment of the property in dispute came about with reference to the site plan. Mst. Naseem Akhtar has been shown as the transferee of portion- 'Aand P.T.D. For, this portion was issued to her. The late Muhammad Amin had accepted this apportionment and it was only after about a decade that he made a miscellaneous application seeking demarcation of all the 3 portions. The writ-petitioners have been asserting that the plan was deliberately removed by the appellants who had appended its copy to their written statement in W.P. No,1303-R of 1961. The stand taken by appellants before the learned Judge in Chambers was that they had inadvertently admitted the existence of the plan while submitting their written statement to Writ Petition No,1303- R of 1961 appending the copy of the plan as Annexure 'Dthereto. After holding that the Deputy Settlement Commissioner could not go ahead with re-determination of the actual accommodation in relation to the respective claimants " nor could have adjustment in the same after the issue of P.T.D. Dated 3-5-1969 in favour of Mst. Nasim Akhtar", it was ruled as below: "8. The above finding is sufficient for disposal of the writ petition and the question of jurisdiction need not to be finally decided. Suffice it to say that by and large the earlier law declared by the Supreme Court and reflected in PLD 1971 SC 669, 1973 SCM R 624 and 1974 SCM R 8 holds the field although in later judgments like PLD 1983 Supreme Court 337 and 1983 SCM R 90 some flexibility in the principle of law was laid down by holding that absence of jurisdiction after PTD was not absolute and in some exceptional cases, the Settlement Authorities would retain the jurisdiction for purposes of demarcation and laying down the extent of transfer. The case of Muhammad Din and others v. Ghulam Muhammad Naseem Sindu and others (PLD 1991 Supreme Court 1) referred by the learned counsel for the respondent No,2 is the enlargement of the second view and majority of the learned Judges held that the High Court should not have interfered in the order of the Settlement Authorities. In the facts of that case the Settlement Authorities, after the issue of P.T.D. Had considered some area attached to the house as available property and the holder of P.T.D. Was successful in challenging this order in the High Court. With respect, the present case is distinguishable. However, as stated above, in view of my findings on the question of correctness of plan, etc., the question of jurisdiction of Settlement Authorities, is not that important and need not be finally determined."
7. Paras. 3 and 4 of Leave Grant Order dated 19-5-1995 read thus: "3. Sh. Abdul Manan, Advocate, the learned counsel for the petitioners, contended that two rooms in question in occupation of Muhammad Amin were part and parcel of the portion C transferred to Muhammad Amin and his legal representatives had been in possession thereof since beginning, and the hierarchy of Settlement Officers having given a finding of fact in favour of said Muhammad Amin, the High Court in exercise of its Constitutional jurisdiction was not justified inquiring into facts and interfering with the finding of facts and interfering with the finding of fact given by the Settlement Department,
4. In the circumstances appearing on the record, the contentions raised by the learned counsel require consideration. We, therefore grant leave to appeal. Status quo to be maintained. The office is directed to fix the appellant an early date. Office is also directed to send for the settlement record in respect of house in dispute bearing No,S-VI-3S1, Bhagwan Street, Old Anarkali, Lahore."
8. It appears that the bone of contention between the resent parties is the entitlement or otherwise of either one of them to that part of the property in dispute which was earmarked as portion 'Cand in which some adjustments were made by the officials of the Settlement Department in the exercise of their jurisdiction under the Displaced Persons (Compensation and Rehabilitation) Act (No,XXVII of 1958.
9. Mr. Sh. Abdul Mannan, learned counsel appearing on behalf of the appellants, has reiterated the plea that the entries in the P.T.D. Of Mst. Naseem Akhtar were wrong and, therefore, the respondent- authorities were possessed of the requisite jurisdiction to make orders dated 7-7-1972 and 2-4- 1976 respectively passed by the Deputy Settlement Commissioner-II and the Settlement Commissioner. According to him, the Settlement Authorities had corrected the P.T.D. After due verification from the record and such efforts on the part of the respondent-authorities were immune from interference therewith by the High Coun. Mst. Naseem Akhtar had never claimed any portion of the property in dispute which was in possession of the appellants in her C.H Form Her statement before the then Deputy Settlement Commissioner at the time of the disposal of the property bears testimony to this fact. The appellants do not stand to benefit from the disappearance of the original site plan from the record therefore, the private-respondents herein, including Mst. Naseem Akhtar, were rightly not allowed by the Settlement Authorities to thrive on the manifestly incorrect entries in P.T.D. No,5902. Mst. Naseem Akhtar had asked for transfer of one room and one bath in her possession both, in her C.H. Form and statement before the Deputy Settlement Commissioner concerned. He has referred to Syed Ali Shah v. Abdul Saghir Khan Sherwani and others (PLD 1990 SC 504) to contend that the powers of the revisional authority in the hierarchy of Settlement Department could not be interfered with by the High Court in the exercise of its Constitutional Jurisdiction. Contrarily Mr. Sh. Maqbool Ahmed, learned counsel appearing on behalf of respondent. No,1-(i) and (ii) has supported the impugned judgment, dated 10-12-1995 and contended that the Settlement Authorities were not competent to re-determine the portion of the property in dispute which was shown to have been transferred to Mst. Naseem Akhtar from whom they had purschased the same, in the garb of 'demarcation'.
10. We have considered the arguments addressed at the bar. It is common ground between the parties that the orders passed by the then Deputy Settlement Commissioner transferring the disputed house after apportioning the same in portions 'A', 'Band 'Cwere not challenged by Mst.
Naseem Akhtar/respondent No,3. She did not challenge the order, dated 3-10-1961, passed by the- then Settlement Commissioner/Chief Settlement Commissioner in the second revision of the predecessor-in-title of the appellants, either. Learned counsel for the vendees from Mst. Naseem Akhtar was not in a position to controvert the assertion made by the learned counsel for the appellants that the entries in P.T.D. No,5902 were wrong and that it was within days of the issuance of the said P.T.D. In her favour that she sold the property transferred to her, in favour of the respondent No,1-(i) and (ii) on 3-5-1969 i.e, within 28 days of the issuance of P.T.D. On 3-5-1969. A perusal of orders, dated 7-7-1972 and 2-4-1976 passed respectively by the then Deputy Settlement Commissioner and Settlement Commissioner, Lahore Division allowing appellant's application and dismissing Mst. Naseem Akhtar's Revision Petition shows that they proceeded on solid grounds. The then Deputy Settlement Commissioner-II had in fact opined that "...a clerical mistake has been committed in the P.T.D. Issued to Mst. Naseem Akhtar to the effect that an entry has been made therein indicating that the appeal filed by Muhammad Amin before the Additional Settlement Commission, Lahore, was rejected on 6-8-1960, whereas actually it had been accepted and order of the D.S.C. Was modified to the extent that Portion 'Awas transferred to Mst. Nasim Akhtar as this portion was in her occupation and her possession was in pursuance of a valid order. Description of this portion has also been given in the order, dated 3-10-1961 of the Chief Settlement Commissioner. Major portion of 'Cportion was in possession of Muhammad Amin in pursuance of a valid order and, therefore, this portion i.e Portion 'Cwas transferred to him. I, therefore, order for making the correction accordingly in the P.T.D issued to Mst. Nasim Akhtar, schedule of property plan of the house at page 125 of the tile, and all the other relevant record, uncle; my authentiation and signatures. Correction in the said plan has been made in blue ink." (Underlining for emphasis).
Even in the revisional order passed by the then Settlement Commissioner, it was specifically observed that the order of Deputy Settlement Commissioner dividing the whole property into three portions i.e, 'A', 'Band 'C'.. Does not give specification of three portions. Demarcation was however made on the plan but the plan is not available on the record,. The Additional Settlement Commissioner (Judicial) has very clearly defined portion 'Aas comprising the area of the ground floor of which Muhammad Din was allottee claimant of one room on the ground floor. Nasim Akhtar has informed in her form claiming one room and a Barsati on the first floor. According to the urge of Muhammad Amin that portion 'Acomprises of one room on the ground floor, a room and Barsati on the upper storey. She. However, succeeded in getting wrongly shown 1-1/2 room and kitchen of portion Cto be a pan of her portion 'A', which actually in pursuance of a valid allotment order was and is in possession of Muhammad Amin respondent. He has further urged this 1/1-2 room and kitchen had never been included in portion 'Aby any order of any officer. These facts are according to the urge of Muhammad Amin borne out from the form submitted by her." (Underlining for emphasis). We find that in the absence of any objection to the resolution of the dispute by the Settlement Authorities on appellants application for demarcation and the dismissal of Mst.
Naseem Akhtar's revision against the said order by the Settlement Commissioner, Lahore Division, the correct reflection of the portion transferred to both, the predecessor the appellants and Mst.
Naseem Akhtar, cannot but be held to be in accord with the facts floating on the surface.
11. Moreover, it was not the case of the private respondents that the entries in PTD No,5902 favouring Mst. Naseem Akhar in relation to Entry No,3 (reproduced in para. 4 above) were correct. A perusal of the Memo. Of Revision filed by the private respondents herein to impugn the order of the then Deputy Settlement Commissioner-II, dated 7-7-1972 before the then Settlement Commissioner, Lahore Division shows that they were relying upon the alleged demarcation which look place".. As back as in the year 1960" and that "no fresh demarcation to benefit illegally any party can be effected. In the instant case a certified copy of the demarcation held was produced and the learned lower Court has failed to discuss the same in the impugned order..... .. The D.S.C. Could not review the order of his predecessor, moreso for the reason that Permanent Transfer Deed had already been issued to the appellants". We find that the specification of portions 'A', 'Band 'Coriginally have been given effect to by the-then Deputy Settlement Commissioner-II and Settlement Commissioner vide their respective orders, dated 7-7-1972 and 2-4-1976. These orders have not been shown to be suffering from any jurisdictional error and, in that view of the matter, ought to have been maintained by the High Court.
12. Further, maintaining the 'Settlement Recordby removing any number of inaccuracies therein, having crept in for no fault of the litigants, cannot but be upheld. If the respondent-vendees and respondent-Mst. Naseem Akhtar had tricked the department into showing swelled portion 'Aby including therein a part of portion 'Belonging to the appellants, the same was a fit subject for being excised, by all concerned, ex debito justitiae,
13. Looked at from whatever angle, the judgment in appeal is liable to be set aside. We order accordingly, No costs.