Property No. B-1-S-II-32 and Property No.B-1-S-II-33 adjacent to each other situated on Railway Road, Nankana were owned by evacuees namely Devi Dayal and Ladha Ram respectively. The two properties will be hereinafter referred to as No.32 and No.33 respectively. Leaving aside the unnecessary details suffice it to state that Ali Muhammad. The predecessor-in-interest of writ petitions in Writ Petition No.65-R of 1999 was transferred Property No.3.3, whereas Property No.32 was purchased in auction by Ghulam Rasool who surrendered his rights in favour of Muhammad Tufail, writ petitioner in Writ Petition No.48-R of 1999. They do not dispute the respective transfers of each other, the dispute, however, is as to the extent of each of the property. In order to comprehend the real controversy it may be mentioned that Property No.33 which was an unregistered Chakki (Flour Mill) was transferred to Ch. Ali Muhammad on --9-2-1960, whereafter the price was calculated, measurement of the property i1 stated to have been undertaken and play, prepared. On payment of the price the Transfer Order (T.O.) was issued to him of 29-6-1974.
Mutation No.606 was thereafter sanctioned on 26-7-1983. The area mentioned therein is 2 Kanals, 3 Marlas and 2 Sarsahis The transfer was not challenged by any one So far as Property No.32 is concerned the same was, as stated above, purchased in open auction by Ghulam Rasool who surrendered his rights in favour of Muhammad Tufail PTD was issued on 26-3-1968 to him. Writ Petition No.4880 of 1992 was filed by Muhammad Tufail as Lahore-Harike Transport Company also started laying claim to the property. His writ petition was accepted by this Court on 2-12-1992.
Upholding the transfer of Ghulan Rasool/Muhammad Tufail. That order was challenged by filing petition for leave (C.P No.1226-L of 1992), which was, however dismissed on 11-4-1993. Muhammad Tufail then filed Writ Petition No.15926 of 1993 that area of Property No.32 was 5 Kanals. 17 Marlas. In that petition a Local Commission was appointed whose report was however, objected to by Ali Muhammad. The --matter had not yet concluded when the, petition was withdrawn on 7-5-1994, by Muhammad Tufail. After the dismissal of the petition, a review petition (R.A. No.63 of 1994), was filed by Muhammad Tufail before this Court in Writ Petition No.4880 of 1992 in which report was called for, whit. Report was submitted by the Notified Officer, but the said petition for review was withdrawn on 5-6-1995 and was, dismissed accordingly. It may be mentioned that in the report submitted by the Notified Officer. Sheikhupura, the area of property No.32 was stated to be 2 Kanals, 17 Marlas approximately. It may be mentioned here that Ali Muhammad also had to initiate civil litigation, in which he was successful. Muhammad Tufail again filed Writ Petition No.2380 of 1996 against Mutation No.606, referred to above, disputing correctness of the same as to the area mentioned and transferred to Ali Muhammad. In that writ petition the matter was remanded to the Notified Officer by consent of the parties in view of disputed questions of fact involved in the case. It is in this background that respondent No.1 has passed order, dated 25-2-1999, wherein he has come to the conclusion that "the total area of this Property No.BI-SII-32 was 2 Kanals, 17 Marlas and not 5 Kanals. Since this area is already with the petitioner (Muhammad Tufail), therefore, he has got no legal right to claim area in excess of that". He has observed that "Ali Muhammad was transferred Ladha Ram/Maljee Flour Chakki located in Property No.BI-SII--33 and full rights were transferred to him. The total area transferred to him is 2 Kanals, 3 Marlas and 8 Sarsahis, which is mentioned in Mutation No.606". He, however, came to the conclusion that "Ali Muhammad was entitled to only that land which comes under his Flour Chakki and it was worked out to be 2 Marlas, 3 Sarsahis. It should be noted that even the entire Property BI-SII-33 was not transferred to Ali Muhammad, in fact two other shops are also located in this property which have been transferred to two different persons other than Ali Muhammad". It was thus concluded by him that Ali Muhammad had failed to establish his rightful claim over 2 Kanals, 2 Marlas and 2 Sarsahis, which was ordered to be resumed in favour of the Provincial Government. He accordingly ordered the review of Mutation No.606. Both Muhammad Tufail and Ch. Ali Muhammad have felt aggrieved of this order and filed Writ Petition No.48-R of 1999 and Writ Petition No.65-R of 1999 respectively.
2. The principal contention of the learned counsel for Ch. Ali Muhammad is that since the full interest in Property No.33 had been transferred to him, he was transferee of whole of it, area whereof was 2 Kanals. 3 Marlas and 8 Sarsahis as per the plan drawn and prepared by the Department after measurement of the site. It is contended that Muhammad Tufail could not lay claim to the property transferred to Ali Muhammad as his 'property' (Property No. 32), measured 2 Kanals, 17 Marlas, which was already owned and possessed by him. The view taken by the Notified Officer, with reference to the report of the local commission, mentioned earlier has been criticized by him that the said report was of no effect, to which objections had been filed by Ch. Ali Muhammad, which had yet to be decided, but the petitioner was withdrawn. According to him, such a report had no binding effect in view of Haji Muhammad Sharif and others v. Ijazuddin Ahmad and others (1988 M LD 1457), Messrs Kausar & Co. v. Messrs Universal Insurance Co. (Pvt.)
Ltd. (1991 M LD 1774), Nabi Bakhsh v. Liaquat Ali (1988 CLC 1114) and Akbar Ali and others v. Province of Punjab and others (1990 CLC 718).
3. Ch. Qadir Bakhsh, Advocate, the learned counsel for Muhammad Tufail on the other hand contends that Ch. Ali Muhammad had only been transferred Flour Chakki and not the whole of Property No.33, therefore, he was entitled to only that area which was covered by the Flour Chakki and nothing beyond that. It is contended that the Notified Officer has correctly recorded his finding to that extent whereas he went wrong in taking the view that Property No.32 transferred to Muhammad Tufail was only 2 Kanals and 17 Marlas.
The learned counsel for the Department has also been heard, who supports the order passed by the Notified Officer.
4. Material on the record has been referred to by the learned counsel for the parties and perused with their assistance. As mentioned at the very opening of this order, the dispute between the parties is as to what was the area transferred to Ch. Ali Muhammad i.e. Property No.33 and Muhammad Tufail i.e. Property No.32. Insofar as the transfer of Ch. Ali Muhammad is concerned, the perusal of his application form and the later orders passed would clearly show that he had applied for Flour Chakki comprising Property No.33. The extent of the share therein transferred to him was "full" as per Transfer Order issued to him. It was the said Transfer Order, which was given effect to in the Revenue Record by sanctioning Mutation No.606. Not only that the transfer in favour of Ch. Ali Muhammad was not challenged by any one at all, it was not even disputed by the Department itself, as to what was the extent of the area. The quantum of the price determined and paid by him also supported that Property No.33 comprising Ladha Ram Malji Flour Chakki in "full" and as a whole had been transferred to him. The findings of the Notified Officer to the contrary are not supportable by any cogent material. He was impressed by the report of local commission but reliance thereupon was neither warranted nor apt inasmuch as the said report was subject to objections by Ch. Ali Muhammad, but without awaiting the decision of those objections the petition was withdrawn by Muhammad Tufail. Such a report of the commission thus had no legal efficacy.
Moreover, finality attached to the Transfer Order which had remained unchallenged for a long time, could not be eroded. On the basis of assumptions. The view thus taken by the Notified Officer in ordering the resumption of an area measuring 2 Kanals, 2 Marlas and 2, Sarsahis is not sustainable.
Writ Petition; No.65-R of 1999 thus merits acceptance.
5. Insofar as the claim of Muhammad Tufail beyond 2 Kanals, 17 Marlas is concerned, the same does not pose any difficulty whatsoever, because he was' transferred Property No. 32 measuring 2 Kanals, 17 Marlas only 'as associate of Ghulam Rasool. This is borne out from the very opening sentence of the judgment of this Court, dated 2-12-1992 (W.P. No.4880 of'' 1992). The said judgment having been maintained by the Hon'ble Supreme Court of Pakistan as well, no addition or deletion can either be made nor is permissible. The PTD issued to him also relates to Property No.32 owned by Devi Dayal evacuee in "full". There is no doubt that both properties, Nos 32 and No.33 are independent and distinct, thus neither the transferee of Property No.32 can lay claim beyond what Property No.32 was, nor the transferee of property No.33 can' be denuded of his rights in that property. Indeed after issuance of Transfer documents and repeal of Settlement Laws the matter could not be reopened and the parties should have been content with what had been transferred to them. Muhammad Tufail thus has rightly been found to confine himself to an area measuring 2 Kanals, 17 Marlas. His writ petition i.e. Writ Petition No.48-R of 1999 thus merits dismissal.
6. There are few other writ petitions concerning the same property. Writ Petition: No.220-R of 1999 has been filed by Abdul Majeed and another for a direction that land measuring 2 Kanals, 2 Marlas, which in pursuance of the order passed by the Notified Officer qua Property No.33 had become available, the same be ordered to be transferred to them. Since the cause of the petitioners was dependent upon the fate of the order passed by the Notified Officer in particular Property No.33 and that part of the order of the Notified Officer has not been sustained, this petition has lost its ground, which is dismissed accordingly.
7. In Writ Petition No. 196-R of 2000 Muhammad Nazir seeks a direction that the matter of transfer of Property No.32 in favour of Muhammad Tufail be ordered to be enquired into by the Chief Settlement Commissioner being a fraudulent affair. When asked as to what was the locus standi and the interest of the petitioner in seeking reopening of a matter past and closed, the learned counsel contended that the transfer was wholly illegal, therefore, it need to be set aside. Suffice it to observe that the petitioner has no locus standi whatsoever to challenge transfer, which assumed finality with the issuance of PTD in the year 1968. It cannot be allowed to be reopened at this stage.
The petition is accordingly dismissed.
8. Writ Petition No.16791-R of 2000 was tiled by Muhammad Tufail, seeking a direction to WAPDA for payment of rent to him. In view of the judgment in W.P. No.48-R of 1999 and Writ Petition No.65-R of 1999 this petition has become infructuous. It is dismissed accordingly.
9. Civil Revision No. 1997 of 1993 arises out of an order passed on 28-10-1993 whereby an application filed by the petitioner Muhammad Tufail under section 12(2), C.P.C. Was dismissed. This petition also has no merit and rather has become infructuous in view of the judgment in Writ Petition No.48-R of 1999 and Writ Petition No.65-R of 1999. It is also dismissed accordingly.
As a sequel to the above, Writ Petition No.65-R of 1999 is accepted, order of the Notified Officer, dated 25-2-1999 is declared as of no legal effect to the extent of Property No.B-1-S-II-33, whereas Writ Petition No.48-R of 1999 is dismissed maintaining the order of the Notified Officer qua the extent of Property No.B-I-S-II-32. No order as to costs.
Q.M.H./M.A.K./A-634/L