Property NOSE-11-31-S-16 Shaheed Gang Road, Lahore was transferred to Jamal Din petitioner and P.T.O., dated 16-4-1960 was issued. After conclusion of the litigation in appeal and revision with certain contestants P.T.D. Was issued on 24-4-1962. Respondent No.5, Abdul Rehman executed rent deeds from time to time admitting and accepting the petitioner as owner and landlord of the premises, one such deed is, dated 15-4-1971, another of dated 3-8-1971 and some of latter period.
Subsequently, Abdul Rehman respondent approached the defunct Settlement Department for site inspection that the premises in his possession were not transferred to Jamal Din, the same be considered as available and be transferred to him. Admittedly, this was a move after the repeal of the Laws.No exact date is ascertainable as nothing has been placed on the record to this effect.
The matter was taken up by D.S.C.(U)/DA(R.P.), Lahore who prepared a report, dated 24-9-1997 that the shop in possession of Abdul Rehman has not been transferred to Jamal Din and was still owned by the Settlement Department and was to be disposed of under R. P. Scheme. The said report is stated to have been agreed by the Chief Settlement Commissioner Punjab. The same is challenged through this petition under Article 199 of the Constitution.
2. . It is contended by the learned counsel for the petitioner that the P.T.O. And the P.T.D. Having been issued in favour of the petitioner long before even the repeal of the Evacuee Laws, the Settlement authority/Administrator Residual Property had no jurisdiction in the matter. It is further contended that the title having vested in the petitioner after the issuance of the P.T.D., the effect of the same could not be nullified in the garb of application for inspection of the premises. It is further contended that respondent No.5 was admittedly a tenant under the petitioner who had admitted him the owner of the property, against whom, ejectment proceedings have been taken by the petitioner, the initiation of proceedings by him before the respondents were merely a counter-blast to the aforesaid ejectment proceedings. Reliance is placed upon Muhammad A.I Hassan etc. v.
Deputy Settlement Commissioner etc. 1999 CLC No te 66 at p.50.
3. On the other hand, learned counsel for respondent No.5 contends that the portion in possession of respondent. No. 5 had not been transferred to the petitioner which has been built by him and that the execution of the rent deeds were result of misrepresentation and concealment of true facts and that the property was still available for transfer. According to him, it is the Settlement Authority which has jurisdiction in the matter and that this Court cannot interfere with the same.
Reliance is placed upon Province of Punjab etc. v. Mufti Abdul Ghani PLD 1985 SC 1.
4. After the transfer of the property in the name of the petitioner, he had been issued P.T.D. Which was never challenged in proper proceedings by anyone. Belatedly some application was made by respondent No.5 for inspection of the premises alleging that the same has not been transferred to the petitioner and is stated to have submitted R.P. Form for its transfer. It is then that the Deputy Settlement Commissioner (U)/DA(R.P.), Lahore proceeded in the matter and prepared the report referred to above on 24/30-9-1971 which was mainly based on the observations made by the Additional District Judge, Lahore in the ejectment matter. Admittedly, Abdul Rehman respondent had executed rent deed and was tenant of Jamal Din and had occupied the premises as such for a long time. He suddenly took a turn with the plea that Jamal Din was not the owner of the said premises. This move was motivated by his desire to become owner of the premises by denying title of Jamal Din. His conduct did not permit him to do so. It is the same premises for which he had executed rent deeds and paying rent to Jamal Din. Being a tenant, he could not deny his title. It was merely an attempt to avoid or a counter-blast to his dispossession through the ejectment proceedings.
5. It is established law that with the issuance of title documents i.e. P.T.D., the property absolutely vests in the transferee and the Settlement Authorities become functus office in the subject-matter, however, fraud or forgery. In the present case, the Department at no stage had ever attributed any fraud or forgery to the petitioner. It was only on the move of the respondent that the matter was reopened' on his miscellaneous application. In A.I Muhammad v. Haji Hussain and 2 others PLD 1975 Kar. 971, it was a case whereafter the issuance of P.T.D., the matter was sought to be reopened through a miscellaneous application. It was observed as follows by the Division Bench:----- "Haji Hussain merely made a miscellaneous application for demarcation and as held by their Lordships of the Supreme Court in S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others PLD 1971 SC 669, such procedure is not available to increase the area, or add to, the property transferred to a person under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by cancelling transfer of a Property to another person. It may here be added that the view we have taken in this judgment, that no power was available to the Additional Settlement Commissioner or any other Settlement Authority to deal with the property transferred to the appellant, has also been adopted in a Karachi decision, Mst. Hajiani Fatima Bai and 6 others v. Ibrahim and 13 others PLD 1972 Kar. 61,0.
Before concluding, we will note that Haji Hussain would appear to have made the application for demarcation after he had purchased the adjoining shop bearing Custodian No.II-A-450 and, therefore, having obtained 3/4th portion of the aforesaid building, he decided to obtain the remaining 1/4th portion also through the circuitous way of making an application for demarcation."
1987 SCMR 1036, where the dispute was between two contestants for the same property and, respondent No.2 (Cantonment Board, Rawalpindi) therein had filed a suit for declaration thereabout, it was held by their Lordships at page 1041 that:-- "The perusal of the record shows that bungalow in question admittedly stood transferred to the predecessor-in-interest of the appellant under the Earmarking Scheme about a week prior to the issuance of letter (dated 29-12-1959) conveying only the approval of the sale of the suit house in the name of respondent No.2. Thus, bungalow was not at all available for disposal in any manner and since the transfer of the bungalow in question in the name of the appellant was not questioned by respondent Not in the manner provided for under the provisions of the Act, this transfer attained finality and its validity would obviously be not questioned in the Civil Court moreso when there was no allegation of fraud, misrepresentation or mala fides on the part of the Settlement Department and also when the nature of the property in question was not in dispute."
This was the law when the Evacuee Laws were in force. The official respondents cannot assume a better position than the functionaries existing under the then prevailing law nor can claim power which was not vested in them under the law.
6. It is commonly known that the Evacuee Laws were repealed w.e.f. 1-7-1974 by Evacuee Property and Displaced Persons Law (Repeal Act XIV, 1975) and only proceedings pending at that time were saved. In Bilqis Begum and others v. Fazal Muhammad and others 1987 SCM R 1441, a part of the composite building was transferred to one Jamshaid A.I Khan (predecessor-in-interest of the petitioners) and other to Naik Muhammad (predecessor-in-interest of the respondents), where after P.T.D. Was issued to Naik Muhammad. Rao Jamshaid A.I Khan challenged the entitlement of Naik Muhammad in which he succeeded before the Settlement Authority and P.T.D. Issued to Naik Muhammad was cancelled. On the writ petition filed by successors of Naik Muhammad, the said order of the Department was declared as illegal that after the repeal of the Law, there was no jurisdiction with the Department to proceed in the matter and that the saving provision of section 2(2) of the Evacuee Property and Displaced Persons Lease (Repeal Act, 1975) only covered the cases pending immediately before the repeal of the Law i.e. 1-7-1974. It was found that the application in the case was made on 20-3-1976, the same could not be entertained by the Department. The Honourable Supreme Court upheld the order of the High Court whereby the order of the Department was set aside. In Khawaja Bashir Ahmad v. The Additional Settlement Commissioner, Rawalpindi and others 1991 SCM R 1604, question as to the effect of the issuance of the P.T.D. Before the repeal of Laws and assumption of jurisdiction by the departmental functionaries after the repeal of the Laws had arisen, it was observed by their Lordships that the P.T.D. Had been issued to the transferee in the year, 1964 but the matter was reopened on an application in the year, 1975. It was observed at page 1607 as follows:-- "On 28-1-1975, the present case was neither pending before any of the settlement authorities nor remanded by the High Court or the Supreme Court, therefore, the Settlement Commissioner (Notified Officer) had no jurisdiction, whatsoever to reopen the transaction which was past and closed. "
1991 SCMR 84, an ejectment proceedings had been taken out by the successor-in-interest of the transferee of the shop and at the same time, the occupant had challenged his transfer and had applied for the transfer of shop for himself. On the strength of PTD issued in respect of the shop in favour of the transferee, he succeeded in the ejectment matter whereas in the matter pertaining to the transfer of property, it was observed by their Lordships that he did not file any petition claiming the two shops till 1984 and that he had attorned as a tenant. It was accordingly observed that:-- "the attempt of the petitioner from 1984/85 onwards to secure transfer of the shops was only a belated attempt to forestall the eviction decree passed against him."
1991 CLC Note 66 at p.50, after noting that the P.T.D. Had been issued before the repeal of the Laws and the Settlement Authorities had no jurisdiction to reopen the matter. It was also observed that:- - "Fateh Muhammad and Fazal.Din accepted themselves to be tenant under the petitioner, therefore, it is surprising how did they change their mind and restarted the feud with the transferee. I am clear in my mind that the Deputy Settlement Commissioner definitely abused his authority in resurrecting the dead causes."
7. The Deputy Settlement Commissioner/Deputy Administrator R.P. Thus, did not act in accordance with law in reopening of the matter on the move of respondent No.5 in the circumstances mentioned above. His report had thus, no legal sanctity in the matter nor the approval of the same by respondent No.1.
8. In view of the above, this petition is accepted. No order as to costs.