MEHAR DIN Versus SETTLEMENT COMMISSIONER

ORDER

1. ABDUL QADIR SHAIKH, J . The disputed house bearing No. 448-8-29, situated in Dharampura, Lahore was transferred by the Deputy Settlement Commissioner, Lahore on 7th June 1960 to Khair Din, a claimant displaced person on his C. H. form. On appeal from Mehar Din, petitioner herein, who claimed that he was entitled to transfer of a portion of the house in his possession on the basis of C. H. form filed by him, the Additional Settlement Commissioner, Lahore remanded the case for fresh disposal to the Deputy Settlement Commissioner, Lahore.

2. On remand the Deputy Settlement Commissioner, Lahore after hearing the parties held by the order dated 20th May 1963 that Khair Din had rightly been transferred the house. Appeal of Mehar Din before the Additional Settlement Commissioner, Lahore failed on 22nd April 1964 and his revision application to the Settlement Commissioner, Lahore was also dismissed. It was held, throughout in these proceedings, that Mehar Din had not submitted the requisite C. H. form and he was not therefore entitled to the transfer of the house. In his order, the Settlement Commissioner, Lahore observed as follows:

3. I have heard counsel for the parties and carefully gone through the record. The petitioner had been given ample opportunity to prove that he was a claimant and that he had submitted C. H. form for the transfer of this house. The respondents have been issued permanent transfer deed in their favour and they have paid full transfer price and Government dues and have become full owners.

4. The revision petition is devoid of force. It is dismissed."

5. It may be mentioned that Khair Din executed an agreement of association with Allah Ditta, and the associate was therefore joined as a respondent in the revision application.

6. Mehar Din then challenged the orders in Writ Petition No. 331-R of 1966 in the Lahore High Court. A Single Judge of that Court, however, dismissed the writ petition as having abated in toto, for, the petitioner had failed to join the legal representatives of both the respondents, Khair Din and Allah Ditta, although the former had died in 1969 and the later on 61h February 1973.

7. It was argued before the learned Single Judge in the High Court that only Allah Ditta, and not Khair Din, was the necessary party, for, he had become the owner of the property under the agreement of association, and since he died after the operation of Law Reforms Ordinance, 1972, the petition was saved from abatement by virtue of the newly added provision contained in rule 3(4) of Order XXII, C. P. C. The learned Single Judge rejected this plea on the ground that Allah Ditta derived his right and title in property from the original transferee, Khair Din, and his legal represen tatives not having been brought on record ever since his death in 1969, the writ petition had abated in t oto before the operation of the Law Reforms Ordinance, 1972.

8. Mehar Din now seeks special leave to appeal, and in support of the petition learned counsel canvassed just one plea, that the portion of the house claimed by Mehar Din stands transferred to Allah Ditta and since he died after the operation of the Law Reforms Ordinance, 1972, the writ petition was saved from abatement.

9. The submission of the learned counsel proceeds on the assumption that the disputed house has been held to be divisible into two independent residential units, one transferred to Khair Din, deceased, and the other to Allah Ditta deceased. This assumption is based on fiction, rather on facts, for admittedly the house was transferred to Khair Din, as a single residential unit. Khair Din subsequently entered into an agreement of association with Allah Ditta, but beyond this there is nothing to show that the house has been held to be divisible into two residential units or that the associate became the owner of the portion of the house claimed by Mehar Din. In any case, the associate derived his title in property from Khair Din, the original transferee of the house, who died in the year 1969. The petitioner had made no attempt to join the legal representatives of Khair Din ever since his death up to the day on which writ petition was finally heard by the learned Single Judge. It is admitted and there is no doubt that the writ petition bad abated so far Khair Din deceased is concerned. The only question is whether by that fact it stood abated in toto, or not. In this regard admitted facts are Mehar Din had set up a rival claim against Khair Din regarding transfer of a portion of the house on the basis of C. H. form, allegedly filed by him. He joined Allah Ditta as a party to the writ petition, for, Allah Ditta had acquired a right in property from Khair Din through an agreement of association. Allah Ditta had no independent right of his own, apart from what he received from Khair Din through the agreement of association with him. His right in property, therefore, depended on the validity of the title of Khair Din acquired on the basis of C. H. form. Since Khair Din's title became immune from challenge by the fact that writ petition had abated so far he was concerned, Mehar Din could not maintain the proceedings against Allah Ditta as he had acquired rights in property by lawful means under the agreement of association with Khair Din.

10. On these facts, the learned Single Judge in the High Court rightly held that the writ petition had abated in toto, and no exception can be taken with the order passed by him.

11. For these reasons the petition has no force and is dismissed.

12. K. B. A. Petition dismissed.