MUHAMMAD ZAKI Versus MAQSOOD ALI KHAN

ORDER

1. MUHAMMAD GUL, J. ‑This is a petition for the review of the judgment of this court dated the 30th May 1974 in Civil Appeal No. 3 of 1968 (Syed Mohammad Zaki and another v. Maqsood Ali Khan and others) by which the judgment of a Division Bench of late High Court of West Pakistan at Lahore in L. P. A. No. .211/64 remanding the case to the Settlement Authorities for causing certain enquiry to be made, was set aside.

2. The dispute concerns the transfer of half portion of Property No. SE‑33 R‑VII‑B, Montgomery Road, Lahore (hereinafter called the house in dispute) for which the rival contestants were Syed Mohammad Zaki, a claimant and his nephew Syed Shafqat Ali, a non‑claimant, (appellants in the main appeal and contesting respondents herein) on the one hand and late Maqsood Ali Khan, a claimant, and the contesting respondent in the main appeal, on the other. The petitioners herein are his legal representatives.

3. The house in dispute comprises three storeys and a basement. Maqsood Ali Khan was admittedly in possession of the basement and the ground floor as allottee as from 10‑1‑1953. Muhammad Zaki and Shafqat Ali claim to be in possession of the first and the second floors since 1‑1‑1948 on the basis of a joint allotment order.

4. Maqsood Ali Khan applied for the transfer of portion in his possession. The respondents herein appear to have applied for the transfer of the entire house in dispute resting their claim on prior possession as joint allottees of the first and the second floors. The u. S. C. treated the house to be indivisible and transferred the whole of it to Maqsood Ali Khan because "he was a bigger claim‑holder" and was in possession of major portion. On a joint appeal by the respondents the order of the D. S. C. was upheld on 27‑2‑1960 by the Additional Settlement Commissioner. Their revision however, was accepted by the Settlement Commissioner on 12‑5‑1960 mainly on the ground that Mohammad Zaki also a claimant was in undisputed possession of the portion of the house in dispute from a prior date and therefore had a preferential right for the transfer of the house as against Maqsood Ali Khan, his larger claim, notwithstanding. Second revision filed by Maqsood Ali Khan was dismissed by the Chief Settlement Commissioner by a brief order on 7‑7‑1962 without disclosing any reasons.

5. Maqsood Ali Khan then moved Writ Petition No. 682‑R of 1962 in which it appears he agitated for the first time that the joint allotment order produced by Mohammad Zaki and Shafqat Ali as the basis of their prior possession, was a forged document. A learned Single Judge after comparing the admitted signature of D. R. O. with his signature on the original order of allotment in favour of the respondents, came to the conclusion that the allotment order produced by Mohammad Zaki and Shafqat Ali was genuine and therefore the property in dispute was rightly transferred them in preference to Maqsood Ali Khan. The learned Single Judge rested his conclusion on his visual comparison of the signature of D. R. O. with his admitted signature. Learned counsel for Maqsood Ali Khan also conceded that the signature of D. R. O. on the allotment order was genuine. A Letter Patent Appeal filed by Maqsood Ali Khan was accepted and the case was remanded to the Chief Settlement Commissioner directing him as follows:‑ "that he shall cause an inquiry to be held into the genuineness of the allotment order which shall be sent to him in a sealed cover. In case the allotment order is found to be genuine, the claim of the respondents to the transfer of the house should be upheld, but if that is not so the transfer in their favour will not be sustainable, because they cannot be deemed to be in prior possession of the house within the purview of the notification, dated the 13th October 1959."

6. The respondents' appeal against the remand order by the Division Bench was accepted by this Court mainly on the ground that before the Additional Settlement Commissioner it was not disputed by Maqsood Ali Khan that the respondents' possession of a portion of the property in dispute was prior in point of time which in the relevant circumstances was a decisive factor. Another circumstance which weighed with this Court was that it was not controverted before the Additional Settlement Commissioner that Maqsood Ali Khan had also participated in the earmarking scheme and had filed E Form which, because of this Court's dictum in Azizur Rahman v. Mst. Habib Bano (PLD1972SC 52) had disqualified him for the transfer of the house in dispute under Settlement Scheme No. I. Accordingly, the respondents' appeal in this Court was accepted and the Settlement Commissioner's order dated 12‑5‑1960 in first revision transferring the entire property in dispute in favour of the respondents was restored.

7. Review of the judgment is sought by the legal representatives of Maqsood Ali Khan on the following three grounds namely:..‑

(i) that with the exception of the D. S. C. who in the first instance held the house to be indivisible, no higher Settlement Court applied its mind to determine the divisibility of the property in dispute, which it was their legal duty so to do;

(ii) that it was wrongly assumed by this Court that Maqsood Ali Khan had conceded before the Additional Settlement Commissioner that he bad filed E Form to participate in earmarking scheme and therefore became disqualified from securing transfer of a house under Settlement Scheme No. 1; nor had the Additional Settlement Commissioner given any definitive finding to that effect; and

(iii) that the judgment sought to be reviewed has frustrated the ends of justice in that it has foreclosed the enquiry by the Chief Settlement Commissioner into the genuineness or otherwise of the joint allotment order produced by the respondents in support of their preferential claim for the transfer of property in dispute.

8. On behalf of the respondents it was urged by their learned A. O. R. that the petitioners are virtually seeking a rehearing of the main appeal which was accepted by the Court after consideration of all the points arising therein. and that in any event the judgment cannot be reviewed even if on any point the judgment of this Court turns out to be wrong. Reliance was placed on Lt: Col. Nawabzada Mohammed Amir Khan v. Controller of' Estate Duty (PLD 1962 S C 335) which adumberated the conditions subject to which this Court would review its judgment.

9. We have heard the learned counsel on both the sides and in my opinion a case is made out for the review of the judgment on the first and the second points set out above. The rule laid down in the precedent case was that merely because a decision of this Court is erroneous per se is not a ground to justify its review for that would seriously impair the finality attaching to the judgments of this Court which sits at the apex of the judicial system. Nevertheless, it wag observed in that case, that if there be found a material irregularity in the decision, which is of the nature which "converts the process from being one in aid of justice to a process which brings about injustice'', or if the decision is in conflict with the constitution or a law of the land, the. it would be the duty of the Court to amend the error. This is enjoined upon every Judge of this Court by the oath he has taken.

10. As pointed out already Maqsood Ali Khan filed C H form for the, transfer of the portion of the property in dispute in his possession only. This clearly indicates that according to him the house in dispute was divisible in accordance with the possession of the two contesting parties. The house comprises three storeys and a basement: nevertheless, the D. S. C. held the property in dispute to be indivisible and transferred the entire premises to hind. There is nothing to show that he had inspected the house before declaring it indivisible. The Higher Settlement Courts did not address themselves to this aspect of the question at all. The Settlement Commissioner while reversing the orders of the two Settlement Courts below, decided the case on the sole basis of the priority of the respondents' possession which so far as can be seen, from the order was not disputed by Maqsood Ali Khan There is nothing, whatever, to show that the Settlement Commissioner or the Chief Settlement Commissioner applied' his mind to consider if the house could conveniently be divided?

11. Learned counsel for the petitioners submitted that the Settlement Authorities are under a legal duty to consider suo moto the question of divisibility of a house and that the mere fact that the contesting parties regard the house as indivisible did not relieve the Settlement Authorities of that duty. In support of this part of argument, learned counsel also relied on the case of Mst. Habib Bano noticed already. That case was remanded by this Court to the Chief Settlement Commissioner for a fresh decision "in accordance with law" because the Settlement Authorities had not applied "their independent mind" to the question of divisibility of the house and held it to be indivisible merely because both the sides had contend ed that it was indivisible. Learned counsel also pointed out that the other half portion of the main building lying to the immediately north of the house in dispute which is almost a replica of the house in dispute, was held by the Settlement Authorities to be divisible and that decision was upheld by this Court in Abdul Majid v. Chief Settlement Commissioner (P L D 1967 S C 437). Rather the policy of the law is to rehabilitate as large a number of claimants as may be possible, subject to the conditions laid down by any such law.

12. Similarly, there is force in the second ground urged in support of the review petition. The penultimate paragraph of the judgment of this Court iii the appeal shows that it was assumed that the Additional Settlement Com missioner had in the concluding paragraph of hi: order dated 7‑2‑1968 recorded a finding that Maqsood Ali Khan had participated in the earmark ing scheme by filing Form E and therefore became disqualified for the transfer of the property in dispute under Settlement Scheme No. I as laid down in the case of Azizur Rahman v. Mst. Habib Bano noticed above. The concluding paragraph of the order of the Additional Settlement Commissioner reads:‑

13. "The learned counsel for the appellant has brought to my notice more than once the fact that the respondent is guilty of submitting Form E in spite of the fact that he had applied in Form C H for this property This offence is not all that serious, as we had allowed numerous applicants to do so, on the understanding that they would withdraw their previous applications the moment they are successful in thee drawing of lots."

14. It was rightly pointed out by the petitioners learned counsel that the above excerpt in. the order merely notices the contention raised on behalf of the respondent, which the Additional Settlement Commissioner thought was inconsequential without recording any definitive finding on a question of fact whether Maqsood Ali, Khan had filed E Form? Learned counsel for the petitioners stressed that Maqsood Ali Khan never filed any such form. Being the author Judge of the judgment sought to be reviewed, I regret, I missed the point. This Court reconsidered its judgment in Muhammad Zafarullah Khan v. Muhammad Khan (PLD1975SC300) when the review was sought on the ground that the judgment proceeded on an erroneous assumption of a material fact. In that case, this Court followed the Privy Council case of Suraj Narain Anand (PLD1949PC1) wherein their Lordships reviewed their judgment when it was discovered that it proceeded on an erroneous assumption of a material fact.

15. However, there it no substance in the third ground urged in support of the petition. It is not disputed that Maqsood Ali Khan did not dispute the respondents' possession of the first and second floors from a prior date and it c was only in the High Court that he for the first time challenged the genuineness of the joint allotment order produced by the respondents on the ground that it was a forgery. It is important to mention that even learned counsel appearing for Maqsood Ali Khan in the High Court conceded that the signatures of D. R. O. on the allotment chit were genuine. It is also significant that in the High Court Maqsood Ali Khan while characterising the allotment order in favour of the respondents as a forgery did not question their prior possession. Learned counsel for the petitioner however, argued on the basis of judgment of this Court in Mst. Ghulam Fatimah v. Abdul Ghani (1973 S C M R 56) that the respondents having rested their claim on an allotment order cannot be permitted to turn round to seek transfer on the basis of unauthorised possession. The facts of the precedent case were some what different. But even if it were to apply to the instant case, it would be a case of reaching a wrong conclusion which as pointed out in the cases of Mohammad Amir Khan and Mohammad Khan noticed above is not ground for review, for in that case the Bench hearing the review petition will be virtually sitting as a Court of appeal over its own judgment. This will also violate the principle of finality of judgments of this Court. It is well settled that a review cannot be made a pretext for rehearing a case. In this view of the matter therefore it would not be right to remand the case for an enquiry as to the genuineness or otherwise of the joint allotment order in favour of the respondents.

16. However, that may be, it goes without saying that the failure of the Settlement Authorities (other than DSC) to apply their mind as to the divisibility of the house in dispute which having regard to the policy of law was essential, was unfortunately overlooked while deciding the appeal. between the parties. So also part of the judgment proceeds on an erroneous assumption of a material fact. These two defects have in my opinion materially affected the judgment in this case. Accordingly, I would accept this petition, recall the judgment dated 30‑5‑1974 and remand the case to the Chief Settlement Commissioner or any other appropriate authority under the law to determine‑

(i) whether the house in dispute is divisible;

(ii) whether Maqsood Ali Khan had filed any E Form; and then to dispose of the case in accordance with law.

17. Parties are left to bear their own costs throughout.

18. SALAHUDDIN AHMED, J.‑I agree.

19. ANWARUL HAQ, J.‑I agree.

20. MUHAMMAD AFZAL CHEEMA, J.‑I agree.

21. S. A. H. Petition accepted.