' HAMID ALI MIRZA, J.---This civil petition for leave to appeal is directed against the judgment dated 20-10-2000 in Writ Petitions No,7-R1987 and 31-R-1991 passed by learned Judge in Chambers of Lahore High Court, Multan Bench, whereby the said Writ Petition No,7-R of 1987 filed by the petitioners was dismissed.
2. Brief facts of the case are that an evacuee property 'Kanshi Ram Sampooran Singh Oil Mills Unit No,46 Block-F Burewala' (hereinafter called the property in dispute) was allotted to Messrs. Taj Muhammad and Muhammad Hanif and as per orders dated 14-4-1960 and 26-9-1960 passed by Additional Settlement Commissioner, 3/4th share of the property in question was transferred to Messrs. Taj Muhammad and Muhammad Hanif while 1/4th share in the property in question held by Mr. Qamar Abbas was ordered to be put to auction as he did not apply for transfer of the same, consequently his 1/4th share was put to acution on 25-8-1960 which was purchased by one Muhammad Ramzan in consideration of Rs,20,500. Messrs Taj Muhammad and Muhammad Hanif preferred an appeal against an order dated 14-4-1960 before Settlement Commissioner Multan which appeal was dismissed on 26-6-1961. The price of the property in question pertaining to 3/4th share of Messrs Taj Muhammad and Muhammad Hanif was assessed by Additional Settlement Commissioner, whereby 3/4th machinery was assessed to Rs,34,125 while building share to the said extent was assessed to Rs,29,160 as per order dated 3-6-1964 passed by the Additional Settlement Commissioner, Multan. The said Muhammad Hanif leased out the said property to one Haji Abdul Majid and a lease deed was executed when lease money was said to be paid by the lessee towards the clearance of the Settlement dues 'for the transfer price of Messrs Taj Muhammad and Muhammad Hanif and as per lease agreement possession was delivered to lessee Abdul Majid.
However, petitioners came to know that the lessee Abdul Majid in connivance with Sh. Bakhtiar alias Tara collusively surrendered share of property in favour of Sh. Bakhtiar alias Tara and others and it was found that the said lessee Abdul Majid had made no payment to Settlement Authority and rather had tried to fabricate the papers in favour of Sh. Bakhtiar alias Tara and 'handed over the possession to him. The petitioners requested to allow to deposit price of the property but said request was rejected on 21-9-1986 by the Deputy Settlement Commissioner Vehari so also request of Abdul Majid for deposit of the price of property was rejected and the property was ordered to be put to public auction. In the circumstances successor of Abdul Majid filed Writ Petition No,31-R of 1991 stating therein that their predecessor had acquired right through surrender deed dated 2-10- 1963 executed by Messrs. Taj Muhammad and Muhammad Hanif to the extent of their 3/4th share and 1/4th share of Qamar Abbas which was put to auction and was purchased by the highest bidder Muhammad Ramzan from whom Abdul Majid has acquired his right and title. The said Abdul Majid then disposed of his rights in the property in question in favour of respondents. Abdul Majid (Tara Brothers) also applied to the Settlement Authorities for transfer of property on the basis of surrender deed executed by Messrs. Taj Muhammad and Muhammad Hanif in their favour but their request was not accepted so also request of petitioners the successor-in-interest of Messrs Muhammad Hanif and Taj Muhammad with regard to deposit of arrears etc. Was refused by the Deputy Settlement Commissioner Vehari as per order dated 21-9-1986.
3. The learned Judge in Chambers after hearing the learned counsel for the parties came to the conclusion that the original transferee Messrs Taj Muhammad and Muhammad Hanif in spite of the notices having been issued to them failed to deposit sale price of the property during a long period of 22 long years and said Abdul Majid had also not deposited full price of the property in question rather he surrendered his alleged rights in favour of Muhammad Bakhtiar alias Tara mentioning therein that he was unable to make payment of dues of property in dispute, therefore, Settlement Authorities because of default in the payment of price were justified to cancel the transfer documents of the property in question. So far the claim of Abdul Majid on basis of deed of association it was observed that as deed of association was not accepted by the Settlement Authorities it created no right in favour of said Abdul Majid, therefore, he could not have transferred or conveyed any right or title in the property in question in favour of said Muhammad Bakhtiar alias Tara, considering that the said deed of association with said Abdul Majid was denied by the predecessor-in-interest of petitioners.
4. We have heard the learned counsel for the petitioners and perused the record.
5. The contention of the learned counsel for the petitioners is that no notice of demand for payment of outstanding dues was given to the petitioners in terms of paragraph 24 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 read with paragraph 3 of Revised Scheme No,VIII consequently order dated 21-9-1986 passed by respondent No,1 Deputy Settlement Commissioner was not legal, considering also that the petitioners subsequently deposited an amount of Rs,63,505 in pursuant to the order of the Lahore High Court, Multan Bench, dated 5-7-1987. He has placed reliance upon Muhammad Ali v. Member Board of Revenue and others (1981 SCM R 852), (ii) Zarina Rauf Butt and others v. Malik Aziz Ahmad and others PLD 1982 SC 272, (iii) Muhammad Afzal v. Muhammad Yusuf and others (1984 SCM R 296) and (iv) Mst. Amina v. Abdul Qadir and othes 1984 SCM R 993.
6. Admittedly the property in question was transferred to the petitioners' predecessor-in-interest as per order dated 14-4-1960 and 26-9-1960 passed by Additional Settlement Commissioner (pages 35 to 37 of paper book). It appears at page 38 of the paper book that Taj Muhammad predecessor-in-interest of the petitioners had preferred an appeal before the Settlement and Rehabilitation Commissioner, Multan wherein he had challenged the holding of auction in respect of 1/4th share of Qamar Abbas in the property in question but the said appeal was rejected as per order dated 26-6-1961. At , page 39 of the paper book it would appear that Muhammad Hanif predecessor-in-interest of the petitioners had challenged evaluation price of the building and machinery assessed by the Settlement Authorities before the Additional Commissioner, Multan which matter was disposed of by the Additional Settlement Commissioner on 3-6-1964 where by value of 3/4th share of the property was reduced to Rs,63,285 from Rs,71,535. The present petitioner Muhammad Nasim Anwar also moved an application (page 42 of paper book) for bringing the L.Rs of his father Muhammad Hanif on record before the Deputy Settlement Commissioner Multan who passed an order on 21-7-1982 in the said respect. It would appear from the impugned order that notices for deposit of price of the property after reducing the same from Rs,71,535 to Rs,63, 285 were issued but the predecessor-in-interest of the petitioners did not deposit the sale price and it appeared that one Abdul Majid tendered an application for deposit of price through compensation books in absence of agreement of association with the predecessor-in-interest of the petitioners then said Abdul Majid surrendered his alleged rights in the property in favour of Sh. Bakhtiar alias Tara and others without obtaining any permission from the Settlement Authorities. It also appeared that Sh. Balchtiar alias Tara and others also paid an amount of Rs,8,000 as per challan dated 22-1- 1970 while Abdul Majid paid an amount of Rs,3,845 as per challan dated 18-6-1969 but the said transaction of association and surrender of rights in the property in question between the original transferee of the property and Abdul Majid and Messrs Bakhtiar alias Tara Brothers in whose favour rights in property were alleged to have been transferred was not proved before the Settlement Authorities. It was also observed in the impugned order that the so-called transfer of rights in favour of the above said persons were void and nullity as the original transferees the predecessor- in-interest of the petitioners had not acquired any right title in the property in question as they had failed to deposit the price and dues. It has also been observed in the impugned order that legal heirs of deceased Muhammad Hanif were summoned when the petitioner Muhammad Nasim Anwar appeared and subsequently disappeared all of sudden consequently proclamation was advertised in 'Daily Wafaq' Lahore dated 29-8-1986 but even then the said petitioner Muhammad Nasim Anwar did not turn up however, Tariq Hanif petitioner No,4 appeared while Muhammad Abbas and Tariq Mehmood successor to Muhammad Abbas appeared on behalf of Tara Brothers when respective counsel appeared and filed there written arguments. The concluding para. 6 at page 5 of the impugned order reads as follows:-- ' "I have very carefully gone through the written arguments submitted by both the parties. I have also examined the record. I am of the view that learned counsel for Mr. Muhammad Nasim Anwar has put up the case very correctly. He too has very rightly mentioned that after the expiry of statutory time and issuance of necessary notice the property can be resumed and transfer order can be cancelled. The case of Abdul Majid etc. Is not plausible as the story of association is not borne out from the file. However, it is correct that the concern in dispute was allotted to Muhammad Hanif and Taj Muhammad. Had they or their successors-in-interest have not committed breach of condition and had deposited the price they would have been declared as lawful owner of the property. The statutory time fixed for has expired long before. Morevoer, they have earned a lot out of false and illegal transaction and sale by contravening the provision of para. 37 of Settlement Scheme. As such Messrs Muhammad Bakhtiar alias Tara Brothers are in illegal possession. They have no locus standi on the property in dispute as any agreement or association made is not borne out from the file.
' In view of the facts enunciated above the claim of both the contesting parties is rejected and the property is included in the evacuee pool for its disposal through unrestricted public auction as soon as possible. The rent for the period be charged from the persons who had been in possession of the property. The Assistant Commissioner, Burewala is hereby directed to take over the possession of the said property."
7. There is no cavil with that the notice of demand is necessary to be given before the order with regard to transfer of property is cancelled as held by this Court in the above cited cases in view of para. 24 of Schedule to Displaced Persons (Compensation and Rehabilitation) Act, 1958. In the case of Amina (supra) this Court held that in case notice is returned unserved, it cannot be said that it has been served and the case clearly called for resort to substituted service envisaged under paragraph 2 of Scheme No,VIII. The admitted position in the case is that property in question was transferred to predecessor-in-interest of the petitioners in September, 1960 while evaluation of the building and machinery was made and Appendix which was issued for sum of Rs,71,535 for 3/4th share of the property was reduced to Rs,63,285 by the Additional Settlement Commissioner as per his order dated 3-6-1964 and all this was done at the instance of Muhammad Hanif predecessor- ininterest of the petitioners but he did not deposit the price even at reduced price of said property (industrial concern) till 5-7-1987 when the petitioners in the writ petition made request to deposit the same. The record of the Settlement Authorities would show that notice of demand was issued to the predecessor-in-interest of the petitioners from time to time but the amount of arrears of sale price was not deposited for long 26-27 years though substituted service through publication in 'Daily Wafaq, Lahore was made. The record produced will show that the petitioners Muhammad Nasim Anwar and Tariq Hanif were following the matter before the Settlement Authorities but they did not care to deposit the sale price of the property in question. The demand notices have been given as per Settlement Authorities record and service of demand notice through substituted service was also effected which being finding of fact required no interference by this Court. The mere fact that the petitioners after 27 long years have deposited an amount of sale price in the treasury when they filed writ petition in the High Court would not negate the admitted default with regard to non-payment of sale price by the predecessor-in-interest of the petitioners consequently the petitioners would be estopped from pleading that they should have been allowed to pay price of sale property in question after 27 years by extending the period. In the circumstance the respondent Settlement Authorities was justified in rejecting the request of the petitioners as they cannot be allowed to take premium of their own indolence. Reference may be made to the decision of this Court in the case of Ismail (deceased) through his L.Rs, v. The Settlement Commissioner. Karachi and others (1991 SCM R 1036 at 1040) para. 5, where this Court has observed as under:-- ' However, in our view, the above paras. Cannot be pressed into service by the appellants as admittedly in spite of the expiry of more than three years, the appellant had not paid the price, of the house to the Settlement Department. If the transfer in favour of the appellants would have been cancelled within a period of twelve months which was the period available under para. 32 of the Scheme to the appellant for payment of the price in instalments as a non-claimant, they could have legitimate grievance to agitate, which is not the case as pointed out hereinabove. In this regard, reference may be made to the case of another (PLD 1967 SC 428), in which this Court inter alia held that the transferee's by their conduct having exhibited no anxiety whatsoever to make good the payments which were due from them and which they expressly admitted to be due, are estopped from setting up plea that one of them, being claimant, should have been allowed to pay in a more relaxed form. Keeping in view the above ratio decidendi, it cannot be urged that the conclusion arrived at by the learned Single Judge in Chambers and the learned Judges of the Division Bench that the appellants cannot make grievance of the above order dated 9-3-1965 passed by the Additional Settlement Commissioner setting aside the cancellation order and providing one week's time to the appellants to pay the balance price after having failed to file any appeal, is not warranted.
6. As regards the above second submission of Mr. S.M. Abbas that, in my case, the appellant had deposited the balance of the price within a week after coming to know about the above Additional Settlement Commissioner's order dated 9-3-1965 and, therefore, there was no justification to treat the transfer of the house in favour of the appellant as cancelled, it may be observed that the learned Single Judge in Chambers found that the appellant was aware of the aforesaid Judges of the Division Bench and, therefore, the appellant's above contention is not tenable in view of the above concurrent finding of fact. The appeal has, therefore, no merits and hence it is dismissed,...."
' It would appear from the record that there were some initial negotiation between the predecessor-in-interest of the petitioners on one side and one Abdul Majid on the other in respect of the transfer of the property in question when the latter in his turn transferred his alleged right in the property in favour of Tara & Brothers which transaction could not be materialized having no sanction of law and predecessor of the petitioners also failed to deposit the sale price of the property in question within time.
8. The petitioners have failed to show that the finding of the respondent Deputy Settlement Commissioner and affirmed by the learned Judge in Chambers is not according to law or is based on misreading or non- reading of evidence on record, therefore, no exception could be taken to the said finding of fact in respect of service of damand notice upon the petitioners and their predecessor-in-interest, consequently the contention of learned counsel for petitioners has not merit and substance. The order passed by the Deputy Settlement Commissioner and affirmed by the learned Judge in Chambers is legal, proper, valid and is based on cogent reasons, therefore, warranted no interference consequently leave to appeal is refused and petition is dismissed.