SAYED ZAHID HUSSAIN, J.--- Property No. SE-II-31-S-16, Shaheed Gang Road, Lahore was transferred to Jamal Din petitioner and PTO dated 16.4.1960 was issued. After conclusion of the litigation in appeal and revision with certain contestants PTD 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 PTO and the PTD 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 PTD, 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 NLR 1991 Civil 94 (Muhammad A.I Hassan, etc. Vs. Dy. Settlement Commissioner, etc.).
3. On the other hand, learned counsel for the 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 mis-representation 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 PLD 1985 SC 1 (Province of Punjab, etc. Vs. Mufti Abdul Ghani).
4. After the transfer of the property in the name of the petitioner, he had been issued PTD 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 Dy.
Settlement Commissioner(U)/DA(R.P.), Lahore proceeded in the matter and .Prepared the report referred to above on 24/30.9.1997 which was mainly based on the observations made by the Addl.
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. PTD, the property absolutely vests in the transferee a d the Settlement Authorities become functus officio in the matter subject 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 misc. Application. In PLD 1975 Karachi 971 (A.I Muhammad Vs. Haji Hussain and 2 others), it was a case whereafter the issuance of PTD, the matter was sought to be reopened through a misc. Application. It was observed as follows by the Division Bench:- "Haji Hussain merely made miscellaneous application for demarcation and as held by their Lordships of the Supreme Court in S. Anwar Hussain Sani Vs. 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 Addl. 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 Vs. Ibrahim and 13 others (PLD 1972 Karachi 610). 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- A450 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, Sh. Fazal-ur-Rehman Vs. Pakistan through The Secretary, Ministry of Works and Rehabilitation, Islamabad and others", 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 No. 2 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, mis-representation 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.
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 Vs. Fazal Muhammad and others (1987 SCMR 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), whereafter PTD 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 PTD 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 Laws (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 Hon'ble Supreme Court upheld the order of the High Court whereby the order of the Department was set aside. In Khawaja Bashir Ahmad Vs. The Addl. Settlement Commissioner, Rawalpindi and others (1991 SCMR 1604) question as to the effect of the issuance of the PTD 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 PTD 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 proceeding 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."
"Fateh Muhammad and Fazal Din accepted themselves to be tenant under the petitioner, therefore, it is surprising how did they change their mind and re-started 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.