' It is the case of the petitioner that he is owner of Houses Nos.1506, 1506-A and 1506-B, Ward No,6- M, Multan which was purchased by him from one Zafar Hussain Shah. Mehr Din, respondent No,2 is claimed to be in possession of the same as tenant under the erstwhile owner as also under the petitioner. The said Mehr Din submitted Form RSS-VIII on 12-10-1973 for Khasra No,1719 which was an evacuee property and was transferred the same and T.O. Issued on 26-11-1973 for the said Khasra Number. It was on 29-11-1974 when he made an application to the Deputy Settlement Commissioner for inclusion of Khasra No,1789 and correction of transfer order. The said application was contested by the petitioner that Khasra No,1789 comprising Houses Nos.1506, 1506-A and 1506- B was a Muslim property and belonged to him. On a report submitted by the Settlement Inspector, after spot inspection by him the prayer of Mehr Din respondent was declined by the Deputy Settlement Commissioner on 10-2-1975. Mehr Din respondent again made an application on 1-3- 1975 with similar prayer which had earlier been declined but this time the Deputy Settlement Commissioner ordered the correction of Khasra Number vide order, dated 12-4-1975. It is this order of respondent No,1 which has been challenged through this petition.
2. It is contended by the learned counsel for the petitioner that two properties i.e, Khasra Nos.1719 and 1789 were distinct and the respondent had been transferred only Property Khasra Number 1719, he could not lay hand on Property Khasra No,1789 which belongs to the petitioner. It is further contended that after the issuance of transfer order in respect of Khasra No,1719 the Deputy Settlement Commissioner had no lawful authority to make alteration in the transfer order. It is further contended that after the repeal of the law i.e, Displaced Persons (Compensation and Rehabilitation) Act, 1958) w e. f. 1-7-1974 no jurisdiction vested in the Deputy Settlement Commissioner in passing the impugned order which has adversely affected the rights and interest of the (sic) been made to 1983 CLC 851, Anwar Hussain v. Deputy Settlement Commissioner, Larkana and 4 others 1993 SCMR 21, Quetta Hindu Panchayat v. Mst. Dilshad Akhtar and 5 others, 1974 SCMR 8 Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another.
3. The learned counsel for respondent No,2 opposes this petition that the same suffers from laches inasmuch as order, dated 12-4-1975 was sought to be challenged through this petition which was filed on 28-6-1983. It is further contended that the petitioner had soon after the order of D.S.C.
(impugned herein), tiled a suit which was withdrawn later on, the writ petition was not competent on the same subject. It is further contended that the petitioner had applied for the property in his possession but by mistake it was described as Khasra No,1719 whereas it was indeed Khasra No,1789, such a correction in the description of property according to him could be made by the Deputy Settlement Commissioner. It is contended that the petitioner had failed in the ejectment proceedings launched against respondent No,2 also. Reliance is placed by him on 1982 SCMR 4, Habibullah v. Settlement Commissioner etc. 1987 SCMR 884, Muhammad Rafiq v. Agha Nisar Ahmad and others PLD 1980 Karachi 99, Muhammad Ramzan and 2 others v. Abdul Ghani and 4 others and 1985 SCMR 2000, Zulfiqar Ahmad v. Gulzar Khan and another, to contend that clerical mistake or error could be corrected by the authorities at any time.
4. The undisputed aspect of the case is that respondent No,2 had applied for the transfer of Khasra No,1719 which was an Evacuee Property and the same was transferred to him and T.O. Issued about the same on 26-11-1973. It was about a year thereafter that he made first application for the inclusion of Khasra No,1789 which was rejected by the Deputy Settlement Commissioner on 10-2- 1975 by taking the view that "since T.O has been issued no amendment in the Khasra can be carried out". It was a second application which was allowed by the Deputy Settlement Commissioner on 12-4-1975 and correction of number Khasra was ordered. It was not by any stretch of imagination a clerical mistake or error but its effect is inclusion of the property of petitioner (Khasra No,1789) of which the petitioner had been claiming ownership. Thus, the precedents which laid down that the rectification in the order due to clerical mistake could be made, have no relevance. In 1982 SCMR 4 correction in the P.T.O. To bring it in conformity with the order of transfer was upheld, but in the present case no such situation had arisen as respondent No,2 had applied for Khasra No,1719 and transfer order was issued for the same. There was no clerical or accidental mistake or error.
5. Admittedly in the present case application for the so-called correction of the T.O. Was made after the repeal of the law i.e, Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the order impugned was passed on 12-4-1975. It is established law that with the issuance of title documents i.e, T.O. Property absolutely vests in the transferee and the Settlement Authorities become functus officio. The case of the petitioner was that the property purchased and owned by him was a Muslim non-avacue property about which never any declaration as to its nature or status that it was evacuee property had been made by the competent Authority nor ever been dealt with by the Settlement Authorities. It was only on the initiative of respondent No,2 through a miscellaneous application that in the garb of correction of Khasra Number of his T.O. The property of the petitioner was included therein through the impugned order. This adversely affected the rights of the petitioner who claimed himself to be owner of Khasra No,1789 and was being deprivect of the same. In Ali Muhammad v. Haji and 2 others (PLD 1975 Karachi 971) it was observed by the learned Division Bench that "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. Arfraz Ahmad and 2 others (PLD 1971 SC 669) such procedure is not available to increase the area or add to . Property transferred to a person under Displaced Persons (Compensation and Rehabilitation)
Act, 1958 by cancelling transfer of property of another person. In Khawaja Bashir Ahmad v.
Additional Settlement Commissioner, Rawalpindi and others (1991 SCMR 1604) question as to the effect of the issuance of PTD before the repeal of law and assumption of jurisdiction by the Settlement Authority after the repeal of law arose and it was observed by their Lordships 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."
' As mentioned above it was on application, dated 1-3-1975 that the impugned order was passed by the Deputy Settlement Commissioner on 12-4-1975 on which date he had no jurisdiction to pass any such order which had the effect of adversely affecting the rights of the petitioner or making any addition in the transfer order by incorporating Khasra Number 1789. The order is wholly without jurisdiction and not sustainable in law.
6. The objections raised by the learned counsel for respondent No,2 that the petitioner suffers from laches is not tenable in the facts and circumstances of the case. It has been brought on record that the petitioner soon after the impugned order was passed by the D.S.C. Filed a declaratory suit challenging the order of D.S.C. Which was withdrawn by him on 28-11-1981. Apparently it was on account of objection raised by respondent No,2 as to the jurisdiction of the Civil Court. The petitioner also tookup the matter with the Deputy Settlement Commissioner concerned for the withdrawal of his order which matter remained pending with him when this petition was filed. It, therefore, cannot be successfully pleaded that the petitioner acquiesced with the order or the situation. The petition, therefore, cannot be thrown out on the ground of laches. The learned counsel for the contesting respondent has also submitted that the petition should be dismissed since questions of fact are involved in the case. Such an objection cannot be given effect to as the vires of order passed by the Deputy Settlement Commissioner could be determined, without dilating upon the other factual controversies. The order being without jurisdiction, it has to be declared as such.
8. In view of the above order, dated 12-4-1975 impugned herein is declared as without jurisdiction and of no legal effect. The petition is accepted accordingly. No order as to costs.