MUHAMMAD BOOTA Versus EIDO

The dispute in this case is about a portion of property bearing No. SIIf‑22‑S‑58 situated in Changar Mohalla, Lahore. The aforesaid portion was transferred by the learned Deputy Settlement Commissioner to Allah Ditta predecessor‑in‑interest of (1) Mst. Eido and (2) Roshan Din, respondents Nos. 1 and 2 herein. Allah Ditta was a non‑claimant displaced person and as he did not possess enough funds to pay the price and clear arrears of rent, there fore, he entered into an agreement of association with the present petitioners on 24th May 1960, whereby he surrendered his entire rights in the house in dispute in their favour. Consequently a P. T. O. was issued in favour of the petitioners on 6‑6‑1960 (some times described as dated 14‑6‑1960). Allah Ditta the original transferee died on 24‑10‑1960, long whereafter respondents 1 and 2 on 24‑2‑1964, filed a miscellaneous application before the learned Deputy Settlement Commissioner submitting that they may be impleaded as legal representatives in the matter pertaining to the transfer of the property in dispute. The matter was proceeded by the learned Deputy Settlement Commissioner who submitted his report to the learned Additional Settlement Commissioner. The learned Additional Settlement Commissioner observed that it appeared that the parties had not been heard in the matter, therefore, any person who was aggrieved could seek judicial remedy.

2. Getting a clue from the same respondents 1 and 2 filed an appeal in the Court of the learned Additional Settlement Commissioner on 23‑4‑1965 against the issuance of P. T. O., dated 6‑6‑1960 (also described as 14‑6‑1960). The appeal was accepted by the learned Additional Settlement Commissioner on 19‑1‑1966. He held that the agreement of association between a non -claimant and locals was not lawful and, therefore, directed that a P. T. O. should be issued in favour of the legal representatives of Allah Ditta deceased (i.e., original non‑claimant transferee) and consequently set aside the P. T. O. issued in favour of the petitioners.

3. The present petitioners filed a revision petition but without any success, as the same was dismissed by the learned Settlement Commissioner on 22‑5‑1968. The petitioners have come up in writ petition against the aforesaid proceedings and orders to this Court.

4. The main ground which prevailed before the learned Settlement Authorities was that on 24 5‑1960, when the agreement of association was entered into between Allah Ditta (non‑claimant) and Mohammad Boota and and Mohammad Shafi (locals) the position of law was that a non‑claimants displaced person could not enter into an agreement of association with locals. The fact that Allah Ditta was a non‑claimant and Mohammad Boota and Mohammad Sliafi are locals is not in dispute. Learned counsel for the petitioners has drawn my attention to two press notes dated the 11th January 1964 and the 5th February 1964 which are printed at pages 405 and 406 of the Manual of Settlement Law and Procedure (New Edition). The Press Note dated the 11th January 1964 reads as follows:‑--

"Association of non‑claimant displaced persons and locals with transfers of properties.

The persons to whom urban evacuee properties have been transferred under the various Settlement Schemes have previously been allowed to associate claimants with them if they are unable to pay the transfer price of such properties. They have also been permitted to surrender their rights completely in favour of such claimants if they so desire. The Central Government has now decided that the transferees of properties who are unable to pay the transfer price from their own resources may also be allowed to associate non‑claimant displaced persons and locals (including Banks, etc.) with them subject to the con dition that the transferees of properties should not be permitted to surrender their rights completely in favour of such non‑claimants and locals but should retain a share in the property in their own names. The share to be given to non‑claimant displaced person or the locals should be clearly indicated in the Agreement of Association. The non claimant displaced person or locals concerned have also been permitted to associate claimants with them for payment of the transfer price of the share of the property surrendered in their favour by original transferees.

(2) The procedure for filing Agreement of Association by transferees of properties with non‑claimants displaced persons and locals will be the same as has been prescribed in the case of association of such trans ferees with claimants. An Agreement on rupees 4 stamps paper will be executed by the transferee of the property with the non‑claimant displaced person or local concerned indicating clearly the share in the property surrendered in favour of the non‑claimant displaced person or local and the amount payable by the parties involved. The other terms and conditions prescribed in the case of association of transferees of properties with claimants will also apply mutatis mutandis in the case of association of such transferees with non‑claimants and locals.

(3) If the non‑claimant or local in whose favour a portion of the property has been surrendered by the original transferee of such property wants to associate further with claimants and utilise their Compensation Books for payment of the transfer price of his share of the property, separate Agreement of Association on rupees 4 stamp paper will be executed by him with such claimant in accordance with the prescribed procedure. Agreements of association in all cases will be submitted within the general date announced by the Chief Settlement Commissioner from time to time for filing these agreements."

The Press Note dated the 5th February 1964 reads as follows:‑

"Association of non‑claimants displaced persons and locals by transferees of properties.

In an announcement made on the 11th January 1964, permission was accorded to the transferees of properties to associate non‑claimant displaced persons and locals with them in addition to claimants for payment of the transfer price of properties. This was, however, subject to the condition that transferees of properties will have to retain a share in the properties transferred to them. In view of certain representations made by the persons concerned in this respect the Central Government have now been placed to decide that the condi tion about retention of share in the properties by the transferees may be removed. Such transferees may now surrender their rights in the properties completely in favour of non‑claimant displaced persons or locals, if they so desire. They have already been allowed to surrender their rights in the properties completely in favour of claimants. The transferees of properties are advised to avail of the opportunity and if they are unable to pay the transfer price of the properties obtained by them they may enter into agreements of association with non‑claimant displaced persons or locals and surrender their rights completely in their favour, if necessary."

AGREEMENT OF ASSOCIATION

The date for filing agreements of association by the transferees had been extended by the Chief Settlement Commissioner from time to time. On 1st May 1961, the Chief Settlement Commissioner, Pakistan, extended the date up to 31st May 1961, which date further had continuously been extended every month, and now, 30th September 1964, has been fixed as last date for filing agreements of association.

Learned counsel for the petitioners has argued that even though there was a restriction in the year 1960 for entering into agreements of association with locals but on the date when the present applicants came into the field, namely, when they filed the application Annexure `F' dated 24‑2‑1964, or the appeal dated 23‑4‑1965, the instructions above reproduced had come into force and time for honouring such agreements was still ripe. The defect in the title and capacity of Allah Ditta, if any, was no more operative in the field and stood cured. The learned Settlement Authorities, it is contended, have failed to give effect to the legal position which had emerged from the changed law. The contention seems to have merit. In section 43 of the Transfer of Property Act IV of 1882 it is laid down that where a person with a effective title transfers a property in which he subsequently acquires title then such trans fer can be allowed to operate. In this section there is contained the following Illustration:‑

"A, a Hindu, who has separated from his father B, sells, to C three fields, X, Y and Z, representing that A is authorised to transfer the same. Of these fields Z does not being to A, it having been retained by B on the partition, but on B's dying A as heir obtains Z. C., not having rescinded the contract of sale, may require A to deliver Z to him."

In S. Sibtain Fazli v. Star Film Distributors and another (P L D 1964 S C 337) it was laid down that transfer of property in which transferor's title is doubtful will operate on any interest that transferor may acquire subsequently. The learned Settlement authorities acted without lawful authority in not giving effect to the aforesaid legal position in the instant case. Another point to be taken note of is that the petitioners had acted upon the aforesaid agreement. They had obtained the compensation book from a third party and thus got the same adjusted in the transfer price etc. of the property in dispute. Thereafter certain ejectment proceedings ensued between the petitioners and the successors. in‑interest of Allah Ditta. (This fact was conceded by learned counsel for the respondents before me at the Bar), any move on the part of respondents 1 and 2 was nothing but an obvious retalia tion to the ejectment proceedings and their action as such had to be looked at in this prospective. The view which I have taken has also the support from the decision of the Supreme Court in Mian Rafi‑ud‑Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (P L D 1971 S C 252) where during the pendency of the transfer of property the law had undergone a change and it was held that the Settlement Authorities were quite within their jurisdiction to give effect to the law which in the meantime had come into operation. In the aforesaid case the view taken in M. R. Rafi‑ud‑Din and others v. Chief Settlement and Rehabilitation Commissioner, Pakistan and others (P L D 1964 Lah. 539) was affirmed. Respectfully following the aforesaid law I have no option but to declare that the orders impugned in this case were without law ful authority and are of no consequence against the petitioners. I hold and order accordingly. The writ petition is accepted in the terms hereinbefore mentioned and the impugned orders are quashed. There shall be no order as to costs.

S. A. H. Order accordingly.