MUHAMMAD MUSTAQEEM Versus ABDUL HALEEM.

1. The petitioner has challenged the judgment and decree dated 12‑8‑1985, passed by 5th Additional District Judge, Hyderabad, in Civil Appeal No. 145/1984, whereby the judgment and decree of the Trial Court passed in Suit No. 201/1979 has been set aside.

2. The brief facts leading to this Revision Application are that one Abdul Haleem (ancestor of respondents 1‑A to 1‑H) filed a suit for declaration and injunction against applicant Muhammad Mustaqeem, the Government of Sindh, Settlement Commissioner Sindh Central Settlement Cell and Deputy Settlement Commissioner Hyderabad. In the suit Abdul Haleem pleaded that he was occupying a portion of house bearing C.S. No.C/1863‑64, Purana Machi Hutt, Chotki Gitti, Hyderabad since 1949. The portion in his occupation was independent residential unit and for its transfer he filed NCH Form which was duly registered on 8‑8‑1959, in CSC‑II Register at Serial No. 1439. The applicant herein, Muhammad Mustaqeem was also occupying a portion of the said C.S. No. and he too applied for its transfer. PTO dated 20‑11‑1959 was issued in favour of Muhammad Mustaqeem on 30‑11‑1959 in which C.S. No. was C/1863 only was shown transferred to him. It was also pleaded that subsequently Muhammad Mustaqeem managed with the Settlement Department and got his P.T.O., and PTD amended and C.S. No.C/1864 was added to the C.S. No. C/1863, initially entered in his transfer documents. The plaintiff Abdul Haleem moved the Settlement Commissioner for deciding his NCH Form which was said to have been misplaced at the instance of Muhammad Mustaqeem in collusion with Settlement Staff. Settlement Commissioner by his order dated 27‑8‑1977 rejected the revision application of Abdul Haleem holding thereby that the revision application was belated and that after issuance of PTD in favour of Muhammad Mustaqeem for the entire C.S. Nos. C/1.863‑64, the Settlement Authorities had become functus officio in the matter and if Abdul Haleem felt aggrieved, he might seek redress through a competent Court of law.

3. After the above order of the Settlement Commissioner dated 27‑8‑1977, Abdul Haleem filed a First Class Suit against the applicant Muhammad Mustaqeem and others on 7‑4‑1979 seeking a declaration that the transfer of the house in his possession to Muhammad Mustaqeem was illegal, void ab initio, nullity in the eye of law. Further that the plaintiff was entitled to transfer of C/1864 on his NCH Form. A prayer for mandatory injunction was also made.

4. 'The said suit was contested by the applicant herein and various legal pleas were raised. It was contended by the applicant that the suit was not maintainable at law and was also time‑barred inasmuch as the plaintiff Abdul Haleem was intimated by the Settlement Commissioner on 27‑8‑1977 that is nothing could be done by the Settlement Department as the PTD in respect of the disputed premises was already issued and the Settlement Laws stood repealed and if advised he may seek redress through a competent Court of law. Yet Abdul Haleem fled suit on 7‑4‑1979 which was time‑barred. It was also pleaded by the applicant herein that the said Abdul Haleem had attorned to the applicant as his landlord and had entered into rent agreement with him in respect of C/1864. Thus according to the applicant the respondent Abdul Haleem was estopped in law from challenging the entitlement of the applicant} over entire C.S. No. C/1863‑64.

5. On the pleadings of the parties the Trial Court settled the following issues:‑‑

(1) Whether the suit is not maintainable?

(2) Whether the suit is time‑barred?

(3) Whether the suit is barred by the provision of Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Specific Relief Act?

(4) Whether no cause of action accrued to the plaintiff for filing of the suit?

(5) Whether the plaintiff is in possession of the disputed property since the year 1949?

(6) Whether the transfer of the disputed house in favour of the defendant No.4 is illegal, void ab initio as alleged by the plaintiff?

(7) Whether the plaintiff is entitled for the transfer of the disputed house in his favour?

(8) What should the decree be?

6. The parties led evidence before the trial Court and by judgment and decree dated 13‑9‑1984, the suit filed by Abdul Haleem against the applicant and others was dismissed with costs. Civil Appeal No. 145/1984 was filed by Abdul Haleem which has been allowed by the impugned judgment and decree and it has been directed that the concerned Settlement Authorities should amend the transfer documents issued in favour of the applicant Muhammad Mustaqeem, delete No. of house in possession of Abdul Haleem and transfer the said portion to him on NCH Form filed by him which was allegedly misplaced from the office. It is in these circumstances that the present applicant Muhammad Mustaqeem has impugned the judgment and decree of the First Appellate Court passed in Civil Appeal No. 145/1984 (Abdul Haleem v. Government of Sindh and others).

7. Mr. Abdul Hameed Khan the learned counsel for the applicant has contended that the premises in dispute bearing C.S. Nos. C/1863‑64 are one Unit occupied by the applicant, respondent Abdul Haleem, and some others. The initial transfer documents of Muhammad Mustaqeem based on his NCH Form included only one No. i.e. C/1863. However, subsequently on an application dated 4‑7‑1967 addition of C.S. No.C/1864 was made in his transfer documents under the order of DSC dated 7‑11‑1967. It is also contended that the respondent Abdul Haleem had attorned to the applicant as his landlord through an agreement of rent dated 6‑8‑1960 for payment of rent at the rate of Rs.6 per month, for the portion in his occupation which is now in dispute. The rent was paid by respondent Abdul Haleem for quite some time and thereafter when he defaulted in payment of rent, the applicant filed ejectment case against him which was dismissed and FRA No. 72/1979 has been filed which is still pending. It is also contended that the revision application was filed by the respondent Abdul .Haleem, which was dismissed by the Settlement Commissioner on 27‑8‑1977 but the suit was filed on 7‑4‑1979 alleging fraud and collusion against the applicant and the suit was as such barred by limitation. It is next contended that the respondent Abdul Haleem, who while accepting the applicant as his landlord, knew very well on the date, he entered into an agreement of rent that the applicant is the owner/transferee of the portion in his occupation yet did not contest for his own rights till the year 1977 when for the first time he filed a revision application before the Settlement Commissioner and complained about the missing of his NCH Form and the transfer of whole premises in favour of the applicant. The respondent in these circumstances is estopped from challenging the ownership of applicant over whole C.S. Nos. C/1863‑64 and that the suit of the respondent was rightly dismissed by the trial Court on various legal grounds.

8. It is next contended by the learned Advocate that the Settlement Authorities become functus officio after issuance of PTD and after the repeal of Settlement laws and the direction of first appellate Court to the Settlement Authorities to reconsider the case of the respondent and delete the number of portion in occupation of the respondent is without jurisdiction and it amounts to miscarriage of justice. He has placed reliance on PLD 1975 Karachi 444.

9. It is also contended by the learned Advocate that the first appellate Court has not decided the appeal of the respondent in accordance with the provision of Order 41, Rule 31, C.P.C., as the issues settled by the trial Court have not been discussed separately. Reliance in this respect is placed on Syed Hassan Shah v. Maluk and another (1987 C L C 2281).

10. Mr. Khursheed Alam, the learned Advocate for the respondents Nos.1‑A to 1‑H has contended that the applicant was initially transferred C.S. No. C/1863 on his NCH Form by order dated 8‑8‑1959 and his application form for the transfer of the house in his occupation also contained this City Survey No. alone. PTD., dated 26‑2‑1962, also showed only one City Survey No. i.e. C/1863 and the mutation in the City Survey record was also effected for this number. It is pointed out that on 4‑7‑1967, the petitioner moved an application before the DSC, for correction of C. S. No. and requested that C/1864 be inserted in his transfer documents. A report was called from the Settlement Inspector which was submitted on 2‑11‑1967 and approved by DSC on 7‑11‑1967. It was in 1967 therefore, that C/1864 had been inserted in the transfer documents of the petitioner.

11. It is contended by the learned Advocate that since the petitioner had not applied for the transfer of C/1864 at the initial stage, he could not extend his claim to the other portion i.e. C/1864 occupied by the respondent. Reliance has been placed on Fazalun‑Nisa Begum v. Chief Settlement Commissioner and others PLD 1967 Karachi 402 and PLD 1968 Lahore 945. It is also argued by the learned Advocate that the report of the inspector on record clearly showed that the petitioner was initially transferred only C.S. No. C/1863 and the inclusion of C/1864 in his transfer documents was subsequent affair managed by the petitioner in collusion with Settlement Staff. This would mean that the report of the inspector had gone unchallenged and it was bypassed by the DSC who directed the transfer of C/1864 to the petitioner. Reliance has been placed on PLD 1969 Peshawar 118.

12. With regard to the rent agreement executed by Abdul Haleem in favour of the petitioner, the learned Advocate has contended that the rent agreement showed only C.S. No.C/1863 and not C/1864 occupied by respondent, Abdul Haleem. This rent agreement according to the learned Advocate is dated 6‑8‑1960 while the disputed Survey No. was included in transfer documents of the petitioner in 1967. Thus according to him the rent agreement executed by the respondent shall not in any manner strengthen the case of the petitioner as he was not the transferee of the disputed portion on the date of execution of rent agreement i.e. 6‑8‑1960.

13. With regard to the delay in filing of the suit after being informed by the Settlement Commissioner that nothing could be done by the Settlement Authorities after the issuance of PTD, the learned Advocate has contended that the order of Settlement Commissioner was a void order and it need not have been challenged within time. He has placed reliance on PLD 1965 (W.P.) Peshawar 149 (Mst. Said Khanum v. Abdul Jabbar). It may be pointed out that this judgment referred by the learned Advocate has no bearing on the fact of the case in hand.

14. It is also contended by the learned Advocate that without disposal of the application of the respondent for transfer of disputed house No.C/1864, it could not have been transferred to any other party, much less the petitioner, who had not applied for the same on NCH Form. Reliance is placed on 1963 SCMR 175 (Azeemullah v. Chief Settlement Commissioner and others). It is also contended that after the repeal of the Settlement Laws, the Settlement Authorities had no jurisdiction to even correct some mistakes, much less to add or have added a new number to the transfer documents of the petitioner.

15. The learned Advocate has also argued that since the petitioner had practised fraud in getting C.S. No. C/1864 included ' in his documents in collusion with Settlement Department the period of limitation available to him would be six years for the filing of the suit as provided by Article 120 of the Limitation Act. Reliance has been placed on 1982 C L C 1973.

16. I have gone through the impugned judgment and the reasons given by the learned first appellate Court for setting aside the judgment and decree of Trial Court and directing the Settlement Authorities to delete the disputed C.S. No. C/1864 from the transfer documents of the petitioner and also disposing of the application of the respondent filed by him, under Settlement Scheme No.1 by constituting fresh file in accordance with the provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. It may be pointed out at the very outset that the trial Court had framed as many as eight issues on the pleadings of the parties and separate findings were given on each issue. The learned First Appellate Court while deriding the appeal took up issue No.2 and held that the suit was not time‑barred. Thus the finding of the trial Court on this issue is reversed. Issues Nos.1, 5, 6 and 7 have been discussed collectively. The contentions of the parties with regard to these six issues have been recorded by the first Appellate Court, but findings on each issue separately have not been given. Issue No.1 was with regard to the maintainability of the suit while issue No.3 was with regard to the bar of suit under the provisions of Displaced Persons Act and Specific Relief Act. Likewise issues Nos.4 and 7 were also important issues settled by the Trial Court, but no finding is recorded on these issues separately as required under Order 41, Rule 31, C.P.C. Thus the judgment of the First Appellate Court in view of the case‑law reported in 1987 C L C 2281 cannot be sustained. The findings of the trial Court have been set aside by the appellate Court but no reasons have been shown for such decision. For instance, the finding of the trial Court that the jurisdiction of the Civil Court was barred is set aside. The finding of the trial Court that the respondent had lost his right under the statute by executing rent agreement in favour of the petitioner. The finding of the trial Court that the transfer of premises in dispute to the petitioner was not illegal or void ab initio. All these findings and some others by the trial Court have been set aside and no specific reasons have been shown for setting aside such findings. For these reasons the judgment and decree dated 12‑8‑1985, passed by the 5th Additional District Judge, Hyderabad, in Civil Appeal No.145/1984 (Abdul Haleem v. Government of Sindh and others) is set aside and the case is remanded back to the said Court for decision of the appeal after hearing the parties afresh and deciding the appeal in accordance with the provisions of Order 41, Rule 31, C.P.C. Since it has become an old appeal, the appellate Court is expected to dispose of the appeal expeditiously.

17. AA./M‑1522/K Case remanded.