1. The dispute in this petition relates to a shop No. 102/A, in Badin, which petitioner claims to be in his possession, and which was put to public auction by the Deputy Settlement Commissioner.
2. Hyderabad, on 15-2-1960. It was purchased by one Mohammad Hussain son of Imdad Hussain, who was subsequently granted a P. T. D. For the same. He then sold the said shop to the petitioner on 19- 7-1966, by a registered sale-deed. One other shop bearing No. 101/A, possessed by the 4W respondent was also auctioned on 15-2-1960, by the Deputy Settlement Commissioner, Hyderabad and was pur--chased by one Faziu-ur-Rehman, who again sold it to the 4th respondent by a separate registered sale deed. The two shops were according to the record of the auction proceedings treated as two separate business units and disposed of as such. As the shops are adjacent they have a common roof. There is stair case from inside the petitioner's shop leading to the roof, but there is another passage from outside also which leads to the stair-cane of the petitioner's shop a-- well as to the said roof. Admittedly there is a room on the roof which is over the portion of the shop of the 4th respondent but the petitioner claimed that he was having the possession of the roof including the said room upto 1966 when 4th respondent with an ulterior motive of compelling the petitioner to sell his whole property to him moved the 3rd respondent who sought a report from his Assistant in regard to the said room over the roof. In the result, the office of the 3rd respondent submitted a note on 27-8-1966, which is in the following terms :- There is a upper storey which is an Independent portion it consists one small room, a smell courtyard and other amenities of life, the room is situated over Shop No. A/101 while the others are on shop No. A/102, the stair-case goes behind the wall of shop No. A/103 as such it cannot be said that the upper storey is a part and parcel of only Shop No. A/101, if it is a part and parcel, it will of both shops.
3. Record shows that it has not been assigned any custodian number nor it has been assessed.
4. However it I s necessary that the site may be seen by your honour.
5. For orders Please show me the site.(Sd.)
6. 27-8-68Dealing Assistant.
7. The 3rd respondent then passed an order on 29-8-1966 which is as under :- Site Seen.
8. It is an independent unit having one room and amenities. The trans--ferees of the 2 shops however have no claim over it. Both have obtained P. T. De long tack. This portion be disposed of separately assigns No. A/108/1 and is assessed at Rs. 4 p. m.
9. This order according to the petitioner was passed without any notice to him and it is his case. That on 14-6-1967, the 3rd respondent transferred the room over the roof the 4th respondent on a LH form. This order was passed upon an affidavit of the 4th respondent to the effect that he was in possession of the said portion since: 1957 which had been verified on site inspection. The petition, therefore. Challaned the transfer by filing his appeal before the 22nd respondent, i.e., Additional Settlement Commissioner, Hyderabad. Who disposed of the same on 24-2-1969. He relied era the statement of fasts made by the office of the 4th respondent and passed an order in the following terms :- "Looking to the facts stated above, since the upper floor tenement does exist before 1957 as per the Certificate issued by the Chairman Town Committee Badin and it has separate entrance and nowhere connected with shop on the ground floor. I see no ground to accept the request of the appellant in transferring the disputed upper floor house in one unit. The provision of one unit does not apply to auction-purchaser. The appellant should be satisfied with the transfer on the ground floor shops. Thus the appeal merits no consideration the same stands disallowed."
10. The petitioner then tiled Revision application before the First respondent i.e., Settlement and Rehabilitation Commissioner, Sind, who accepted the same and found that the transfer of the disputed room and the roof, required re-examination and consequently set aside the transfer order passed in favour of the 4th respondent. This order is dated 26.6-1969. He remanded the ratter to the 3rd respondent for re deciding the matter relating to the rights and entitlement of the parties on merits after bearing them. It is the case of the petitioner that the 4th respondent did not challenge this order.
2. However the Deputy Settlement Commissioner on remand of the case heard the parties, inspected the site and also made local inquiry. He found that there was an upper storey over the two shops which was a residential tenement consisting of one his room, courtyard along with other amenities. The stair case leafing to the first floor was from the back of the shop beating No. 1.2/A which had an independent entrance. This tenement was not surveyed and was said to be on record of tee custodian but was assigned a new number for the first time on 16-ca-19x0, when it was transferred to the 4th respondent on the same date for a petty amount of Rs. 234. He found on the basis of the evidence recorded that the residence of tenement in question such in physical possession of one Fazlur-ur-Rehman Farooqi, a teacher at Badin, till the year 1965. In had been allotted to him by the Mukhtiar kar. He, therefore, concluded that the premises was not in possession of the 4th respondent prior to 20-12-1959 and therefore, was not recognized under the provisions of the Displaced Persons Compen--sation and Rehabilitation Act, 1968. The 4th respondent was, therefore, not entitled to the transfer of this tenement according to him. It was not even avail--able under the Settlement Scheme No. 8 at the time when the 4th respondent had filed his LH Form. He, therefore, came to the conclusion that the basis of calculating the evaluation price of the property was also incorrect and therefore, enhanced the same. He really held that the tenement not being a resumed property and being one which was nor available for fresh disposal under the Settlement Scheme No. 8 and further the possession of the 4th respondent being neither de jure not de facts, he was not entitled to the transfer, thereof, and consequently rejected his LH Form. With regard to the petitioner's claim he merely stated that he also had no claim over the first floor in question, and he finally held that this may be disposed of by public auction. This order is dated 30-9-1972. The 4th respondent filed an appeal against this order but the same was re-- jected by Additional Settlement Commissioner, respondent No. 2 on 30-3-1973, who upheld the order of the Deputy Settlement Commissioner referred to above. The 4th respondent, however.
11. Challenged this order dated 30-3-1973 by way of Revision before the Settlement and Rehabilitation Commissioner, Sind. Karachi, respondent No. 1, who allowed the same by order dated 21-7-73 stating that the disputed premises i.e., 'Mari', bearing No. A/102/1 had been transferred to Mohammad Khan the 4th respondent on his LH form and was issued a P. T. D. Dated 14th June, 1968 for Rs. 234. He held that the P. 1C. 1). Could not be cancelled on the ground shown by the Additional Settlement Commissioner in view of the case of S. Anwar Hussain Sani v. Sarfraz Ahmad and others PLD 1971 SC 669. He, therefore, accepted the revision and upheld the P. T. D. Issued in favour of the respondent No. 4.
12. The learned counsel for the petitioner has referred to the case of Mohammad Anwar Khan v Al, A.
13. Wasti. Settlement and Rehabilitation Commis--sioner, Peshawar and others 1975 SCMR 372 wherein their Lordships of the Supreme Court had considered the case of S. Anwar Hussain Sani v.
14. Sarfraz Ahmad ant! Others on which reliance was placed by respondent No. 1. Their Lord--ships bad been pleased to observe:- "The second limb of the argument, namely, that after the issuance of the P. T. D in the petitioner's favour the matter could not have been re-opened, conveniently overlooks the further well settled proposition that in the circumstances of the case, the question whether P. T. D. In favour of the petitioner was issued in proper exercise of the authority of Settlement Commissioner, in open to judicial scrutiny. There is abundant authority in support of the view that the deletion of rule 7 of the 1961 Rules, does not foreclose the jurisdiction of the Settlement Authorities or for that matter the High Court to uncover the cases of fraud or illegalities, even altar the issue of P. T. Ds. See for instance the Court's judgment in Civil Petition for Special Leave to Appeal No. K-104 of 1965 Mohammad Ismail v. Mst. Shamsurtnissa) and in .4nwar Hussain v. Sarfraz Ahmad. It is also well settled that the deletion of rules 6 and 7 of the 1961 Rules does not repeal Chapter VI of Act XXVIII of 1954, which provides for appeals and revisions. Indeed sonic of the judgments relied upon by the petitioner's learned counsel expressly excepted the cases of fraud, lack of jurisdiction as valid grounds for the cancellation of a P. T. D. Notwithstanding the deletion of rules 6 and 7 of the 1961 Rules."
15. The position that emanates, therefore, is that the powers of this Court at least, to interfere in matters of transfer of property which involved fraud or other illegalities are not taken away although P. T. D. Might have been issued by the Settlement Authorities. Applying the above principle to the facts of this case it is clear that the Deputy Settlement Commissioner Hyderabad, after holding the elaborate inquiry into Vic question of possession and also inspecting the disputed premises found that there was an upper storey over the two shops which consists of a residential tenancy with a staircase leading to it from the back side of the shop bearing No. A/102. This was, therefore, an independent entrance but this residential tenement bas not been surveyed and assessed in the Custodian record He also found that this residential portion continued to be In the possession of one Fazlu --ur-Rehman, Farooqui, a school teacher, Badin, till 1965. This statement of tact was supported by the Chairman of the Sanitary Committee, Badin, who continued to be the Chairman of Town Committee up to 1966 The premises were also allotted to the said teacher Fazal Rehman Farooqui till he died, In any case, the only conclusion was that the tenement in dispute had never been in possession of the 4th respondent Mohammad Khan prior to 20th December, 1958. This possession is therefore, not recognised under the pro--vision of Displaced Persons (Compensation and Rehabilitation) Act, 1958, and therefore, could not form the basis of his entitlement to the transfer by way of the P. T. D. But the property was not even resumed and, therefore. Was not one which could be said to have been available under the Settlement Scheme No. 8 at the time, the 4th respondent filed his LH form which was admitted on 14-6-1968. Similar was the conclusion run by the Additional Settlement Commissioner, Hyderabad, in his order dated 13-3-1973 when he was approached by the 4th respondent. He specifically held that the 4th respondent had not claimed the house under Scheme No. 1 and as he had left matter subsequently he was obviously not in possession and was not entitled to the transfer of the property. The Settlement and Rehabilitation Commissioner, was, therefore, not right in saying that the PTD. Could not be cancelled on the ground shown by the Additional Settlement Commissioner. It is so apparent that the 4th respondent had obtained the transfer of this property by suppressing the true facts and I have no hesitation, therefore, to set aside the order of the Settlement and Rehabilitation Commissioner in view of what has been stated and in which conclusion I am fortified by what their Lord--ships of the Supreme Court has observed in the case of Mohammed Anwar Khan v. M. A. Wasti.
16. As a result this petition is allowed and the disputed property will have to be put to auction as held by the 2nd and 3rd respondent. There shall be however, no orders as to costs.