MUHAMMAD HUSSAIN Versus CHIE SETTLEMENT COMMISSIONER, SIND
This appeal by leave arises from a judgment of the Letters Patent Bench of the High Court of Sind and Baluchistan, which set aside a Single Judge's order directing the transfer of a disputed shop to the appellants. Leave to appeal was granted to examine whether the Letters Patent Bench correctly construed documentary evidence and followed previous High Court decisions. The dispute involves competing claims for the transfer of a shop under settlement laws, where lower authorities and a remand report concurrent found that the appellants' predecessor-in-interest came into possession after the crucial date of 20th December 1958, thus lacking entitlement. The Supreme Court held that the finding on possession is a question of fact based on a proper appreciation of evidence and should not be disturbed. The appeal was accordingly dismissed, affirming that the appellants failed to establish their entitlement to the transfer of the disputed property.
- Whether a finding of fact regarding possession on or before the crucial date by a settlement authority can be disturbed in appeal?
- Does a party acquire a vested right to the transfer of a property if their possession commenced after the crucial date?
- Whether the High Court's Letters Patent Bench can direct a remand inquiry to determine the actual possession of the disputed property at the relevant time?
MUHAMMAD HALEEM, C.J.‑‑ This appeal, by leave, raises from the judgment of the Letters Patent Bench of the erstwhile High Court of Sind and Baluchistan, Karachi dated the 19th of April, 1972, which allowed the appeal to the extent "that the order of the learned Single Judge directing the transfer of the said shop" to the appellants was set aside leaving the parties to bear their own costs.
2. Leave to appeal was granted to examine whether the decision of the Letters Patent Bench proceeded on a correct construction of the documentary evidence and was in, consonance with the previous decisions of the High Court concerning the disputed shop.
3. The dispute in this case relates to a shop bearing No. D‑35/2551, situate in Chhotki Gitti, Hyderabad. This was transferred to Abdur Rashid, respondent No.5 herein, on 14th of September, 1959, but Muhammad Ismail, the predecessor‑in‑interest of the appellants, challenged this order in revision which was accepted by the Settlement Commissioner by order dated 10th of August, 1960. However, the Settlement Commissioner made an observation in the order that the case be referred to the Chief Settlement Commissioner for determination in the light of the Circular dated 5th of December, 1959, as to in whose favour the property should be transferred. This led to another round of litigation as the Chief Settlement Commissioner thereafter replied that the case be decided on merits in accordance with the policy laid down in the Press Note dated 6th of September, 1960. The matter again came to be heard by the Settlement Commissioner who held that Abdur Rashid had no entitlement to the transfer of the shop in question. And similarly Muhammad Hussain also had no entitlement to its transfer as his brother though whom he claimed had come into possession of the shop after the crucial date, that is, 20th of December, 1958.
4. Abdur Rashid went in second revision and was successful in obtaining an order for the maintenance of status quo on 9 th January, 1962. In the meantime Muhammad Hussain also agitated for the transfer of the shop to himself on the ground that he was in possession of it and his application was accepted by the same Settlement Commissioner, who had passed the earlier order holding that he was not entitled to its transfer, on 26th of April, 1962. This order, however, could not be implemented in view of the status quo order.
5. The Chief Settlement Commissioner decided the second revision on 26th of October, 1962, and remanded the case to the Settlement Commissioner for determining the eligibility and entitlement of respondent No.5. On remand, the Settlement Commissioner again held on 12th of December, 1964, that the respondent No.5 had no entitlement to the transfer of the shop. Nonetheless, this property was included in the list of properties available for auction, and in the auction held on 9th of February, 1965, the respondents 6 and 7 gave the highest bid for it which was accepted.
6. Muhammad Hussain and his brother Abdul Aziz, the legal representatives of Muhammad Ismail, objected to the auction, but the same was rejected and the auction was confirmed by the Additional Settlement Commissioner by order dated 25th of May, 1965. It was specifically held in that order that the predecessor‑in‑interest of Muhammad Hussain and Abdul Aziz had no entitlement to the transfer of this shop as he came into possession after the crucial date. Muhammad Hussain went in revision against this order which was dismissed on 23rd of October, 1965. A second revision was filed, but it is not known as to whether it was disposed of or not. However, Muhammad Hussain received a letter from the Deputy Settlement Commissioner dated 17th of March, 1966 stating that the Chief Settlement Commissioner had ordered that he should seek further judicial remedy available under the law if he was not satisfied with the order of the Settlement Commissioner, Hyderabad. Not being satisfied he addressed an application to the Chief Settlement Commissioner on 20th of May, 1967, complaining about the non-communication of the decision of the second revision, but as nothing happened he filed a writ petition in the High Court on 28th of February, 1962, which was accepted on the 26th of October, 1970. The learned Single Judge who decided the writ petition held that the order dated 26th of April, 1962, was a valid order and under it Muhammad Hussain had acquired a vested right to the transfer of the shop subject to his paying average auction price. This order was challenged by way of a Letters Patent Appeal.
7. The question as to whether Muhammad Hussain came into possession on or before the crucial date or not was seriously challenged before the Letters Patent Bench, and in this context the order dated 26th April, 1962, was not given due effect as it was felt by the Letters Patent Bench that the entitlement of Muhammad Hussain required determination. In this connection it would be relevant to refer to the observation of the Letters Patent Bench;
"We feel that the most important question in these proceedings a possession at the relevant time of the disputed property by Muhammad Hussain because on it depends the validity of the order of the 26th of, April, 1962, therefore, it is proper that an enquiry be made with respect to the possession of premises by Muhammad Hussain qua the notification dated 28th of September, 1959 so that correct decision may be given in this regard."
The appeal was not disposed of and a direction was given that the parties should appear before the Settlement Commissioner, Hyderabad, who should submit his report by the end of April, 1971.
8. The report was submitted on 2nd of July, 1971, and the appeal was disposed of against Muhammad Hussain and his brother, who are now appellants before us. In the report there is a conclusive determination that the appellants were not in possession of the shop on or before the 20th of December, 1958, within the meaning of the notifications dated 13th October, 1959 and 28th September, 1959. The Letters Patent Bench examined the report and after going into the merits of the entitlement accepted it. This being a question of fact, it will not be appropriate to disturb it when it is based, as it is, on a proper appreciation of evidence. Accordingly, the appellants have failed to establish their entitlement to the transfer of the disputed shop so as to disturb the auction held for its disposal.
9. The appeal fails and is hereby dismissed, but with no order as to costs.
M.I./M‑389/S Appeal dismissed.