NANDLAL AND Others vs SETTLEMENT COMMISSIONER, SIND AND Another
This matter arises from a petition challenging the transfer of a portion of urban property by the settlement authorities and the subsequent dismissal of the petitioners' constitutional petition by the Sind High Court. The core legal question concerns whether the Settlement authorities possessed the jurisdiction to modify transfer documents after the issuance of a Permanent Transfer Deed and whether pure questions of fact regarding property identification and alleged record tampering could be raised for the first time in constitutional jurisdiction. The Supreme Court of Pakistan held that questions of fact not raised before the Settlement authorities cannot be agitated in constitutional proceedings, and that the petitioners lacked locus standi to challenge the transfer of a portion of the property that was never lawfully transferred to them. The key principle laid down is that factual controversies and allegations of record tampering must be raised in the appropriate forum below, and a petitioner cannot question the transfer of property portions outside their own valid title.
- Can questions of fact and allegations of record tampering not raised before the settlement authorities be agitated in the constitutional jurisdiction of the High Court?
- Does a property owner holding a permanent transfer deed have the locus standi to question the transfer of a separate portion of property that was never included in their own transfer documents?
- Do settlement authorities retain the power to correct or clarify transfer orders and deeds when portions of properties are found to be amalgamated or incorrectly described?
ORDER
M. S. H. QURAISHI, J.-The petition raises a question of fact whether the whole or part of the property bearing No. 173/2, Jacobabad, had been transferred in the favour of the petitioners/their predecessor-in-interest According to the petitioners, it had been transferred by auction in their favour on 24-9-1960 at the highest bid of Rs. 6,500 against the reserved price of Rs. 13,000. A P. T. D.
Had issued in their favour on 26-2-1973 and the entry of mutation made on 10-5-1973. Nearly a year later, i.e., 10-3-1974 Noor Muhammad (respondent No. 2) applied under Scheme No. VIII, to transfer of portion in his possession of property bearing according to hire No. 436/2. It appears that the Settlement authorities without proper inquire: regarding the correctness of the number, passed an order of transfer on the basis of his application. When he, however, approached the Revenue authorities for entering the mutation, his prayer was refused on the ground that no such property bearing No. 436/2 existed. The Settlement authorities, then examined the matter and found that Property No. 436/2 had been amalgamated with another property bearing No. 435/2 and that the portion possession of Noor Muhammad was actually part of Property No. 173/2 he learned Settlement Commissioner after satisfying himself on this point on the basis of two successive reports, also found that the relevant bid sheet revealed that what had actually been put to auction was Property No. 173/2 excluding the portion occupied by one ."Pathan" and that the portion so excluded was the one which was transferred to Noor Muhammad. He therefore, by order dated 28- 2-1978 directed that the P. T. D. Issued to the petitioners "should be deemed to be in respect of C. S. No. 173/2 minus the portion transferred to the applicant (Noon Muhammad)" and that the transfer order issued in his favour be corrected.
2. The petitioners agitated the matter in the constitutional jurisdiction of the Sind High Court but their plea that the Settlement authorities after the issue of the P. T. D. Had no jurisdiction to modify the same was repelled for the reason that the portion in possession of Noor Muhammad having been excluded from the transfer made in their favour, they bad no locus standito question the jurisdiction of the Settlement authorities to transfer that portion.
3. The relevant bid sheet showed the property subject-matter of the auction as "House C. S. No. 173/Ward 2 Jacobabad excluding portion occupied by (Pathan)". Learned counsel urges that the entry in regard to the exclusion of the portion occupied by Pathan was the result of tampering with the record, for had it been so, the transfer documents, i.e., the P. T. O. And P. T. D., should have shown so but that in these documents the full property is shown to have been the subject-matter of the transfer top' Unfortunately, this point had not been raised before the Settlement Commissioner where the petitioners had duly appeared and. Had been heard. The reports submitted to the learned Settlement Commissioner go to show that a portion of the property had been in actual possession of Noor Muhammad. In the circumstance the question whether the whole or pa of the property had been transferred in favour of the petitioners and whether the entry in the bid sheet was the result of interpolation are questions of fact and the same not having been raised before the Settlement authorities could hardly be agitated in the constitutional jurisdiction before the High Court. Obviously the petitioners had no locus standito question the legality of t h transfer made in favour of respondent Noor Muhammad of a portion of the property which portion had not been transferred to them. The view taken by the High Court was, therefore, fully justified and there is no occasion for interfering with the same. The petition is dismissed.