The petitioners herein are successor-in-interest of Ch. Noor Muhammad Bhatti, who had instituted a suit for declaration with consequential relief that he .was a lawful transferee of the property and the defendants (Settlement Authorities) had no authority to cancel the permanent transfer deed
(PTD) or placing it in the auction pool. Order dated 7.7.1980 as conveyed through communication dated 14.7.1980 was assailed in that context. The suit was contested and was dismissed by the trial Court vide its judgment dated 9.5.1991. Appeal preferred by the petitioners thereagainst was dismissed by the learned Additional District Judge, Lahore on 19.1.1995. This is revision petition thereagainst.
2. The learned counsel for the parties have been heard and material on the record has been perused and considered.
3. The suit was grounded on the assertion that the suit property had been duly transferred after due verification of the entitlement and P.T.D. had been issued in the year 1965 and the price had been deposited by him. It was after the issuance of P.T.D. that the price was re-assessed at Rs, 3,95,880/-. After deducting the price already deposited, he was asked to deposit a sum of Rs, 3,20,280/-. It was pleaded that after the issuance of P.T.D. the department had no jurisdiction and that order dated 7.7.1980 conveyed through communication dated 14.7.1980 was illegal and without jurisdiction and was nullity in law. The allegation of commission of any fraud attributed to him was also controverted. It was claimed that after the issuance of P.T.D. the transferee had become absolute owner thereof. In their written statement filed by the defendants (Settlement Authorities), the jurisdiction of Civil Court was objected to. Apart from their plea that transfer of the property and issuance of title documents were illegal, it was pleaded that the Department had jurisdiction to cancel P.T.D. and to resume the property. Respondent/Defendant No, 4 also objected to the jurisdiction of the Civil Court by filing a separate written statement. The learned trial Court thus, framed the under-mentioned issues:-- 'ISSUES: (1)Whether the plaintiff is lawful transferee of the property in dispute with possession? OPP (2)Whether the Defendants Nos, 1 to .3 had no authority to cancel the PTD relating to the property in dispute vide order dated 7.7.1980 and 14.7.1980 ? OPP (3)Whether the suit is not maintainable in view of preliminary Objection Nos, 2 and 3? OPD.
(4)Whether the suit is insufficiently stamped, if so, its what effect? OPD (5)Whether this Court has no jurisdiction to hear and try the present suit? OPD (5-A) Whether the suit is barred by resjudicata ? OPD-4 (5-B) Whether the suit is not properly valued for the purpose of Court fee and jurisdiction?OPD-4 (5-C) Whether the Defendant No, 4 is entitled to special cost under Section 35-A of C.P.C.?. If so, to what extent?
(6)Whether the plaintiff is estopped by his own conduct? OPD
(7) Relief."
4. There is no denial of the fact that the suit property had been transferred to Ch. Noor Muhammad, deceased, who had paid a sum of Rs, 75,000/- as demanded from him and then P.T.D. was issued.
It was later on that the matter of transfer and payment of price was reopened which gave rise to litigation between the parties and successive writ petitions had to be filed by the transferee, i,e, W.P.
No, 71-R/76 (disposed of on 10.6.1976), W.P. No, 148-R/76 (disposed of on 13.4.1977) and W.P. No, 1109- R/76 (disposed of on 16.10.1977). The last order dated 7.7.1980 which was conveyed through communication dated 14.7.1980 had been passed .by the Additional Settlement Commissioner (Industries), Punjab whereby transfer of the property and P.T.D. issued to him was cancelled for default in payment of Rs, 3,20,280/-, had been assailed by him. The learned trial Court however, has returned the finding on Issue No, 5 that the suit was barred under the law and the Civil Court had no jurisdiction in the matter. At the same time, by clubbing together Issues Nos, 2, 3 and 6 the Court took the view that the transfer price of the property was Rs, 3,95,820/- and balance of Rs, 3,20,280/- had to be deposited by Ch. Noor Muhammad who had failed to make deposit, therefore, the P.T.D. was rightly cancelled. It has been noted by the trial Court that an application was made before the Court showing willingness of the transferee to make deposit of the balance price which however, had not been pressed and even the issuance of P.T.D. would not debar the Department to reopen the case. Suffice it to observe that such a view taken by the trial Court which has been affirmed by the First Appellate Court, is not consistent with the law on the subject. In Allah Bakhsh etc. v. Ghulam Shabbir Shah (1980 SCM R 789) and Mst. Majeeda Begum v. Deputy Settlement Commissioner-II and others (1980 SCM R 827) it was laid down that-when 25% of the price had been paid, the balance price could be recovered by adopting legal course and not the cancellation of transfer. In Israr Ahmad and others v. Member, Board of Revenue/Chief Settlement Commissioner, Lahore and another (1997 SCM R 1559) the receipt of balance price by the Department, pending the matter in the High Court was found to be just and proper. Thus cancellation of transfer by the Department for non-payment of price, which was calculated after issuance of PTD was illegal and unwarranted. The Civil Court thus, had jurisdiction in. the matter in view of Pakistan Transport Company Ltd. vs. walayat Khan through legal heirs (2002 SCM R 1470), wherein it was held that 'The Court (Civil Court) can make an enquiry and if on finding that all the circumstances needed for passing an order were not present, it cap declare the order to be void."
In the context of the controversy and the admitted fact that P.T.D. had been issued to the transferee and admittedly the price (then demanded) had also been paid and the dispute was in regard to whether the price had been correctly assessed before issuance of P.T.D., the matter could be dealt with by the Courts below in some different manner enabling the transferee or his successors to make payment of the balance price and the cancellation and resumption of such property which had been transferred long before the repeal of the Laws could be avoided.
There was indeed an application made by the petitioners under Order XXXIII Rule 1 CPC that though the extra price being demanded was illegal and void yet in order to end the litigation, successors- in-interest of the transferee were prepared to make payment thereof. Such offer was accepted by the Department even in their reply filed before the Court dated 22.7.1990 but, the said application was not pressed later on and was rejected by the trial Court. The petitioners had in their memorandum of appeal before the First Appellate Court and even before this Court have repeated and expressed their willingness to settle the matter by making such payment. This desire of the petitioners in order to bring to an end the litigation also. need to be given due consideration by the Court inasmuch as a settled transferee could not be ousted from the property in such a manner except to effect recovery of the price if some balance was found to be due. Needless to state that if in arriving at a decision, different factors are taken into consideration and one of them is found to be incorrect, faulty and nonexistent, there may be no way of knowing as to how much that faulty or nonexistent factor had influenced the mind of the Court in the formation of its decision. In view of the conclusion arrived at by the Courts that the Civil Court had no jurisdiction, the decision on other issues was certainly got infected. Therefore, appropriate course is to remand the matter to the trial Court for decision afresh.
Keeping thus all aspects in view, it is held that the Civil Court had jurisdiction to try such a suit in view of the assertions and counter assertions of the parties, the view taken by the Courts below is found to be unsustainable. By setting aside their judgments, the matter is remanded to the trial Court for decision afresh in accordance with law. The revision petition is accepted accordingly.
Parties to appear before the trial Court on 26.1.2004. No order as to costs.