HAWABAI Versus MUHAMMAD SIDDIQUE

ORDER

ALI HUSSAIN QAZILBASH, J .‑‑ Mst. Hawabai and three others seek leave to appeal against the order a learned Single Judge of the Sind High Court, dated 2‑10‑1985, whereby the constitutional petition filed by Muhammad Sidique son of Pir Bakhsh (respondent No.1) was accepted and the order of the Notified Authority (respondent No.2) dated 19‑3‑1983 was set aside as being without jurisdiction.

2. The dispute relates to the transfer of property No.1Y‑7/18 (measuring 428 square yards) situate at Moosa Lane, Karachi. It was an evacuee property and was applied for as an open plot by respondent No.1 on form O.P. and after necessary enquiries by the Settlement Officers was transferred to him and P.T.D. and P.T.O. were issued to him as back as 23‑8‑1962. The petitioners and three of their relations are in occupation of seven tenements. After about six years of its transfer to respondent No.1, one of its occupants, namely, Sidique son of Ishaque, moved an application to the Deputy Settlement Commissioner concerned for the cancellation of the transfer of the property cited above from the name of respondent No.1 on the ground that the said respondent impersonated as Sidique son of Ishaque. Then a long drawn litigation started between respondent No.1 and Sidique son of Ishaque who was later on joined by another occupant of the tenements. The details of the previous litigation which dragged on for about more than fifteen years in the Settlement Courts, the High Court and the Civil Courts and the account of the present litigation have been given in the impugned judgment and we need not recapitulate them in that besides other legal and jurisdictional impediments which stand in the way of the petitioners, the present petition suffers from the doctrine of laches and can be dismissed on the question of laches alone.

3. Admittedly, the transfer of the disputed property was finalised in the name of respondent No.1 in 1962 and the P.T.D. was issued to him on 23‑8‑1962. Though Sidique son of Ishaque and one other tried their best to upset the transfer in the name of respondent No.1 but they‑ did not succeed and the transfer in the name of respondent No.1 remained intact. The present petitioners did not join the previous proceedings. It was somewhere in February 1983, i.e., after about more than twenty years, when the present proceedings were initiated by the petitioners against respondent No.1. There is no explanation at all as to why the petitioners took two decades in agitating the matter. They are alleged to be the occupants of the tenements and if it is so, by no stretch of imagination it can be said that they did not know that their very close relations and respondent No.1 were locked in protracted ligitation about this very property. Their silence for such a long time leads one to a conclusion that either they were not residing in these tenements and, therefore, did not apply for their transfer or were not at all interested in the property and thus kept mum for all these twenty years. This aspect of the case has not been considered by the Notified Authority at all, which constituted a serious defect in the exercise of his jurisdiction rendering the same to be without lawful authority in view of the special features of this case.

4. Another very important circumstance which militates against the petitioners is that the very myth of "impersonation" alleged to have been committed by respondent No.1 has been set at naught by the learned Single Judge when in his judgment (at page 47 of the present paperbook) he observed:

"In the instant case the admitted position is that petitioner applied for transfer of the disputed plot in the prescribed form (O.P. form). At this stage it seems necessary to dispose the respondent's allegation that the petitioner had impersonated as Sidique son of Ishaque, the predecessor‑in‑interest of respondent Mst. Hawa Bai and applied for the plot in his name. A bare look at the 'P' form in which the petitioner had applied for the plot would bring to light the falsity of the allegation. The said form has been filed by the respondents. It clearly shows that against column (2) of the form the petitioner's father's name is given as Pir Muhammad and not Ishaque Thus, the allegation of impersonation is false."

It thus becomes manifestly clear that no fraud was committed by respondent No.1 in securing the transfer of the property and on this score too the Notified Authority has acted in excess of the jurisdiction in re‑opening the matter. We, therefore, find that the order of the learned Single Judge, in the peculiar circumstances highlighted above, does not suffer from violation of any principle of law warranting interference by this Court. The petition has no merit and is dismissed.

M . I . / H‑3 / S Petition dismissed.