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Petitioner: NABI ALI SHAH VS Respondent: MUHAMMAD HUSSAIN SHAH
1988 S C M R 1007
1988 S C M R 1007
Present: Muhammad Haleem, C. J., Shafiur Rahman, Ali Hussain Qazilbash and Usman Ali Shah, JJ
CIVIL APPEAL NO. 260 OF 1981
Syed NABI ALI SHAH (Deceased) Represented by Azhar Hussain Shah and others‑‑Appellant
versus
Syed MUHAMMAD HUSSAIN SHAH‑‑Respondent
CIVIL APPEAL N0. 261 OF 1981
Syed MUHAMMAD HUSSAIN SHAH‑‑Appellant
versus
SETTLEMENT AND REHABILITATION COMMISSIONER and others‑‑Respondents
Civil Appeals Nos. 260 and 261 of 1981, decided on 10th April, 1988.
(From the judgment of the Lahore High Court, dated 3‑12‑1975, passed in Writ Petition No.326‑R of 1971) .
Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1988)‑‑
‑‑Ss.10 & 11‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Leave to appeal :vas granted to consider entitlement of rival claimants for transfer of portion of a property‑‑First appellant was not entitled to transfer of property in question in terms of Act XXVIII of 1958 and it was only another appellant who was entitled to transfer of said portion in its entirety‑‑Property was transferred to the first appellant jointly with the other appellant at the behest of latter, which fact was reiterated by him‑‑Other appellant, held, was bound by his very conduct and could not turn back and demand for transfer of entire property under dispute to him to the exclusion of first appellant‑‑Issue of P.T.O. in name of first appellant to the exclusion of the other appellant was also without jurisdiction.
Raja M. Anwar, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑ on‑Record (absent) for Appellants (in Civil Appeal No‑260 of 1981).
A.R. Shaukat, Senior Advocate Supreme Court and Hamid Aslam Qureshi, Advocate‑ on‑Record (absent) for Respondents (in Civil Appeal No.260 of 1981).
A.R. Shaukat, Senior Advocate Supreme Court and Hamid Aslam Qureshi, Advocate‑ on‑Record (absent) for Appellants (in Civil Appeal No‑261 of 1981).
Raja M.Anwar, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑ on‑Record (absent) for Respondents (in Civil Appeal No.261 of 1981).
Dates of hearing: 9th & 10th April, 1988.
JUDGMENT
ALI HUSSAIN QAZILBASH, J.‑‑This judgment will dispose of two Civil Appeals bearing No.260 of 1981 and 261 of 1981, filed by Syed Nabi Ali Shah (now represented by his legal heirs) and Syed Muhammad Hussain Shah, respectively.
2. Property bearing No. S. III. 9. S. I., Math ur Street, outside Bhati Gate, Lahore, is a huge building and is comprised of six independent units, ma.,ked 'A' to 'F'. The dispute between Syed Nabi Ali Shah and Syed Muhammad Hussain Shah, who are relatives, is confined to residential unit 'B' only. Syed Nabi Ali Shah is a claimant displaced person and was in possession of portion 'A' alongwith Fida Hussain and Mst. Khurshid Bano, claimant displaced persons. Syed Muhammad Hussain Shah is a non‑claimant displaced person and is in possession of portion 'B' alone. Syed Nabi Ali Shah submitted CH form for the transfer of the portion of the property in his possession while Syed Muhammad Hussain Shah submitted NCH form. The rest of the occupants also submitted relevant forms for transfer of the portions in their possession. On 19‑4‑1960, a Settlement Inspector of the Settlement Department inspected the spot and made a report that portion marked 'B' consisted of two rooms, one bath on the ground floor, three rooms in the first floor and two rooms with ‑open roof on the top floor. He further reported that Syed Muhammad Hussain Shah, a non‑claimant and occupant of portion 'B', had asked for joint transfer of portion 'B'‑ with Syed Nabi Ali Shah with a common stair‑case. This report was approved by the Deputy Settlement Commissioner on 20‑4‑1960 and a P.T.O. was issued the same day in respect of portion 'B' in the name of Syed Nabi Ali Shah. After about six years Syed Muhammad Hussain Shah filed an appeal against Syed Nabi Ali Shah complaining against the joint transfer. In the appeal it was alleged that Syed Muhammad Hussain was a claimant displaced person and was in possession of portion 'B' independently, the same was, therefore, liable to be transferred to him to the exclusion of Syed Nabi Ali Shah who was not in possession of the said portion and that the P.T.O. for whole of the portion 'B' in the name of Syed Nabi Ali Shah had wrongly been issued. This appeal was, however, dismissed by the Additional Settlement Commissioner, Lahore, vide his order, dated 7‑3‑1969, holding the same as barred by time. The revision filed by Syed Muhammad Hussain Shah against the said order was also dismissed by the Settlement Commissioner, Lahore, on 28‑12‑1970. This was impugned by Syed Muhammad Hussain Shah through Writ Petition No.326‑R of 1971 which was partly allowed, vide order, dated 3‑12‑1975, upholding the order of the Deputy Settlement Commissioner whereby the property was transferred to Syed Nabi Ali Shah and Syed Muhammad Hussain Shah jointly and further that the exclusion of the name of Syed Muhammad Hussain Shah from the P.T.O. issued to Syed Nabi Ali Shah was without jurisdiction. This order is the subject‑matter of the present two appeals.
3 Leave was granted to consider entitlement of the rival claimants for transfer of portion 'B' of the property in question.
4. We have heard the learned counsel for the parties. The entire case has received the careful consideration of the learned Judge in his Chambers and the learned counsel for the rival appellants have not been able to make out a case for our interference. True that Syed Nabi Ali Shah appellant in C.A. No. 260 of 1981, a claimant displaced person, was not in possession of the property unit 'B' and was thus not entitled .to its transfer in terms of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and it was only Syed Muhammad Hussain Shah, appellant in C.A. No.261 of 1981, who was entitled to the transfer of the said portion in its entirety but it is equally true that this property was transferred to Syed Nabi Ali Shah jointly with Syed Muhammad Hussain Shah at the behest of the latter. The fact that unit 'B' stood transferred jointly to the appellants was reiterated by Syed Muhammad Hussain Shah in his application dated 5‑4‑1969 which was submitted after the dismissal of his appeal by the Additional Settlement Commissioner on 7‑3‑1969. Syed Muhammad Hussain Shah is, therefore, bound by his very conduct and now cannot turn back and demand for the transfer of the entire property under dispute to him to the exclusion of Syed Nabi Ali Shah. The finding of the learned Judge that the issue of P.T.O. in the name of dyed Nabi Ali Shah to the exclusion of Syed Muhammad Hussain Shah was without jurisdiction is also upheld.
5. As a result both the appeals are dismissed but with no order as to costs.
M.Y.H./N‑65/S?????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.