MUHAMMADANWAR Versus MUHAMMAD ARIF
This appeal arises from a dispute over the transfer of an open site adjacent to a residential property, previously transferred to the respondent. The core legal questions were whether the disputed site was available for transfer under the settlement scheme, whether a tenant could independently claim transfer of the site, and the validity of a deed of association executed during a subsisting status quo order. The Supreme Court dismissed the appeal, affirming the findings of the Deputy Settlement Commissioner and the High Court. The Court held that the disputed area was an integral part of the property already transferred to the respondent and thus unavailable for further transfer. The Court established that a tenant lacks independent title to seek the transfer of property already possessed by the landlord, and that any deed of association or transfer action taken during the subsistence of a status quo order is a legal nullity. The Court further declined to interfere with concurrent findings of fact regarding property boundaries and availability.
- Can a tenant seek the transfer of an open site that is already part of the property transferred to their landlord?
- Is a deed of association executed during the subsistence of a status quo order legally valid?
- Does the Supreme Court interfere with concurrent findings of fact regarding the availability of property for transfer?
1. MUHAMMAD HALEEM, C.J. ‑‑The dispute in this appeal relates to an open site adjacent to House No.1/2 Ward No.1, Chawinda, Tehsil Pasrur, District Sialkot. It was jointly transferred to respondent No.2 herein and his two brothers Gulab Din and Feroze Din in equal shares and separate PTDs were issued to the transferees.
2. Respondent No.2 thereafter rented out a portion of his house to Nazir Ahmad on 1‑8‑1966 in respect of which a rent deed was executed. Nazir Ahmad continued to pay the rent till the 30th June, 1967, and thereafter declined to pay the rent as he had filed a form on 11th October, 1973, for the transfer of the site adjacent to the house No. l/2 under Scheme No.VIII which was, accordingly, transferred to him on 15‑11‑1973.
3. It appears from the record that respondent No.2 also moved the Deputy Settlement Commissioner for the transfer of the open site which was, however, refused on the ground that no form lies for the transfer of the open site. This order is dated 27‑6‑1974. Next, the respondent No.2 moved the Settlement Commissioner against the transfer of the open site to the appellant who passed an interim order of status quo on 19‑12‑1973. However, while this order was in the field Muhammad Nazir surrendered his rights in favour of Mirza Muhammad Anwar through a deed of association which was approved by the Deputy Settlement Commissioner on 20‑12‑1973 during the subsistence of the status quo order. The Settlement Commissioner, it appears, remanded the case to the Deputy Settlement Commissioner for decision, who on remand after carefully examining the evidence and his own spot inspection held:
4. "The map Exh. 'M' on the file has been checked on the spot and found correct. This sketch clearly sets out that Abdul Ghani is in possession of the property and the portion in dispute is contiguous to his portion and this fact evidently removes all doubts that Abdul Ghani is in possession of the property."
5. Besides this conclusion, the Deputy Settlement Commissioner further went into the question of entitlement of Nazir Ahmad and held as under:
6. "The evidence on record produced by the parties has also been considered which proves that the portion in dispute had been taken on rent by Muhammad Anwar's predecessor‑in interest Nazir Ahmad from Abdul Ghani. I am of the considered opinion that the portion in dispute is part and parcel of property No.1/2 and that belongs to the portion of Abdul Ghani already transferred to him and PTD issued. The form filed by Nazir Ahmad the tenant of Abdul Ghani was not entertainable as the property was not available for disposal. The agreement of association was filed and approved when the stay order had been issued and the transfer order was also issued during the stay order which actions are quite contrary to law and hold no sanctity. The form of the respondent Nazir Ahmad being redundant is hereby rejected as the property at the time of filing of form was not available. All the structure built on the base of this form automatically falls to the ground."
7. Aggrieved by this order, Nazir Ahmad and his associate Mirza Muhammad Anwar filed a writ petition in the Lahore High Court, Lahore, and challenged this order on the ground that Abdul Ghani could not be entitled to more than three times the plinth area of House No.1/2 which was built on three Marlas and that the excess land was available for transfer, and that this was so reported by the Deputy Settlement Commissioner on 21‑6‑1975 to the Deputy Secretary, Rural, who issued a direction to dispose of the excess area according to the relevant law.
8. The High Court rejected this plea relying on the finding of fact arrived at by the Deputy Settlement Commissioner that the area in dispute was part and parcel of the portion of the House e 'No.1/2 transferred to Abdul Ghani and as such it was not available for transfer. The High Court also relied on the further finding of the Deputy Settlement Commissioner that Nazir Ahmad being a tenant of respondent No.2 did not have any independent title and, therefore, his form could not have been entertained, and that his associate had no locus standi as the deed of association was approved during the subsistence status quo order which rendered it a nullity.
9. We have examined the contention of the learned counsel for the appellants whose main thrust was in regard to the excess area being available for transfer, but this being a question of fact and having been decided as such by the Deputy Settlement Commissioner and upheld by the High Court, we would not interfere with it. As for the status of Nazir Ahmad being a tenant of Abdul Ghani, the learned counsel was not able to deny this fact and consequently on the basis of the finding of the Deputy Settlement Commissioner and the High Court with which we agree, he was not entitled to seek for the transfer of the disputed area which was held to be a part and parcel of the portion of the house transferred to Abdul Ghani. The learned counsel for the appellants was not able to sustain that Mirza Muhammad Anwar had a locus stand because of the agreement of association which could not have been approved during the continuance of the status quo order. As for the rejection of the request of respondent No.2r the transfer of the open site, the order nowhere states that this was not a part and parcel of the portion transferred to Abdul Ghani. What was said was that no form could be filed for the transfer of the open site. It is of significance to mention that Abdul Ghani had himself stated in his form that the disputed area was a part of his house. What he was intending to achieve was something superfluous. It did not matter if he did not challenge this order as it was not against his interest.
10. For all these reasons, we are of the view that this appeal has no force and is hereby dismissed with costs.
11. M.Y.H./M‑417/S Appeal dismissed