GHULAM MUHAMMAD Versus SULEMAN

S.A. NUSRAT, J.‑‑ This appeal, by leave of this Court, is from the judgment of the Lahore High Court dated 29‑11‑1974 dismissing a constitutional petition of the appellant which in turn was filed to challenge the order of the Settlement Commissioner dated 2‑11‑1973.

2. The dispute in this appeal relates to a house bearing No.519 as shown in the Settlement record. The property next to it bears No.520 in the Settlement record and was occupied at the relevant time by one Chhanga which stands duly transferred to him and there is no dispute with regard to it. Then come properties Nos.521 and 522 and it may be pointed out that the property No.522 was an open plot 1st the time of the commencement of the Settlement operations. The first respondent, who had claimed possession of all these properties, had filed an NCH form some time in 1951 only for properties Nos.521 and 522. The disputed property No.519 was auctioned in due course in favour of the appellant, who after paying the auction price, obtained the PTO and PTD for this house and it is relevant to emphasise here that the PTD was issued on 1‑6‑1966 because there existed no dispute about this property before the said date. The trouble started when the appellant armed with the PTD served a notice upon the first respondent asking him to attorn to him as a tenant, but as the first respondent claimed that this property (which bears No.384 in the records of the Excise and Taxation Department) had been transferred to him, the appellant sought relief from the Deputy Settlement Commissioner, Multan. The Deputy Settlement commissioner appointed an Inspector of the Department to make an inquiry and the Inspector's report was that property No.519 shown in the Settlement record corresponded to property No.384 as per records of the Excise and Taxation Department and had been duly auctioned in favour of the appellant. The first respondent produced copies of the transfer documents before the Inspector which were in his possession; namely Appendix IX, a PTO and PTD. The Inspector compared the said documents with the original record of the Settlement Department and inter alia found as under:-

" ..It is clear from the NCH form and the declaration of Suleman attached therewith, that he had applied only for the transfer of house and plots bearing Nos.521 and 522. From the order sheet, it is clear that he has been transferred only the house and plots 521, 522, and the. number 519 is cut off obviously because he could not be transferred two houses. Consequently house No.519, which is equivalent to survey No.384, was auctioned and purchased by Ghulam Muhammad. PTO and PTD had been issued to the auction purchaser .................................The record shows that the entry in the NCH form and PTD seems to have been transferred and 519/384 stand separated from the other house and plots bearing Nos.521 and 522 by the intervening house No.520 which stands transferred to the other man."

3. On receipt of the above report, the Deputy Settlement Commissioner summoned the parties and on detailed examination of the PTO in possession of the respondent, by his order dated 22‑1‑1968 came to hold as under:‑‑

"A close scrutiny and examination of the PTO in possession of the transferee revealed that the transferee or some person has mischievously washed off all the entries and 'the signature of the officer which had originally been made by this officer. This PTO has been taken from the possession of the transferee and is now placed on the file as Exh.l. It was also found that the Appendix IX has also been tampered with by someone. The copy of the Appendix available on the file shows an entry of house No.521/522 only whereas a copy of the Appendix of the same date available with the transferee shows the entry of 522/519 but the word 522 is mutilated and overwritten. There is no mention of No.522 on the Appendix in the file. The second page of the Appendix (available with the transferee) is very faint and it gives the impression that some effort has been made to wash out the entries with some removing mixture. The appendix available with the transferee has been obtained and placed on the file as Exh.2. The entries PTO and Appendix in this case have made the matter most doubtful.

My observation in the case is that Suleman s/o Chand Khan had never applied for property No.519 and no orders were: passed transferring property No.519 in his favour. The word "519" has been added in his form and on the transfer order much after the real dates. It appears to me that Suleman s/o Chand Khan had some afterthought and tried to get property No.519 transferred in his favour through unfair means and with the connivance of some official of this office, had succeeded in getting No.519 added on his NCH form and the transfer order passed by the Deputy Settlement Commissioner. The survey register shows that properties Nos.521/522 a‑td 519 are separate properties having No.520 in between the two. Therefore, it is crystal clear that Suleman s/o Chand Khar was never entitled to get two separate residential properties, on one form. House No.519 bearing survey No.384 had actually been sold out in open auction for which one Ghulam Muhammad s/o Haji Abdul Ghani offered his highest bid. The auction purchaser after depositing all the dues has already obtained the PTD for No.384, survey No.519. But at the same time the PTO for property No.521/522 also showy entry of property No.519 a part of the same property. I am convinced that the documents in the property file have been tampered with and PTO obtained with erroneous entry of No.519 in it. Actually No.519 stands disposed through auction to Chulam Muhammad, purchaser."

4. With the foregoing findings, the matter was referred by the Deputy Settlement Commissioner to the Additional Settlement Commissioner for appropriate orders. The record was further examined by the Additional Settlement Commissioner in the light of the report of the Inspector and the Deputy Settlement Commissioner, referred to above, and thereupon a conclusive finding was recorded that the NCH form submitted by the respondent only pertained to house No_521/522 and the entry showing house No.519 had been made later in the transfer documents of the respondent. The Additional Settlement Commissioner also found that in the auction sheet the number shown was 384 which corresponded to house No.519 in the Settlement record. While concluding the finding the learned Additional Settlement Commissioner held that he was fully convinced that an effort had been made by the respondent with the connivance of the official of the department to enter survey No.519 in the Appendix and PTO issued to the respondent who, in fact, was transferee of property No.521/522 only and had no concern with property No.519/384. With such finding, the documents were ordered to be corrected.

5. The order of the Additional Settlement Commissioner dated 5‑12‑1968 was challenged by the first respondent in a revision before the Settlement Commissioner, which was accepted on 30‑1‑1973 and the case was remanded to the Deputy Settlement Commissioner with a direction to decide as to the numbers and the actual properties transferred to the respective parties on the basis of their possession against their NCH forms. The appellant sought review of this order, but his application was dismissed on 7‑4‑1973 by the Settlement Commissioner with the observation that his order did not call for any clarification. The case was again examined by the Deputy Settlement Commissioner,' according to whom;

" .lot of confusion has been created either by Suleman himself or with the connivance of the staff by adding or interpolating No.519 in different documents."

In the final analysis, it was held by him as per order dated 23‑5‑1973, that property No.520/383 stood already demarcated in favour of Chhanga (not disputed in this appeal) and No.521‑5221387 to Suleman against his NCH form. Since the disputed house No .519/384 had been transferred on the basis of possession, the question of its demarcation did not arise in the matter. This order was challenged by the respondent before the Settlement Commissioner by a petition !revision, which was, however, allowed by order dated 2‑11‑1973 and the transfer favour of the appellant was set aside.

6. Being aggrieved of the said order, the appellant filed a constitutional petition in the High Court, which was dismissed as per impugned judgment dated 29‑11‑1974.

7. Leave to appeal was granted, inter alia, to examine the contention that the Settlement Commissioner had erred in law in interfering with concurrent findings of the Deputy Settlement Commissioner and the Additional Settlement Commissioner, which were based on documentary evidence that the transfer documents in possession of the first respondent had been obtained fraudulently.

8. We heard the learned counsel and have examined various orders passed by the Settlement authorities, referred to hereinabove and the judgment of the learned High Court. It is clear from the facts narrated herein above that a detailed scrutiny of the record had been made in the case by the Inspector of the Settlement Department, who had also seen the site, the Deputy Settlement Commissioner and the Additional Settlement Commissioner, all of whom had categorically found that the house No. 519 was entered in the transfer documents issued to the first respondent by interpolation. Such findings, which were based on record, could not have been set aside by the Settlement Commissioner lightly as was done by him vide his order, dated 2‑11‑1973, which makes no mention of the above findings of fact concurrently recorded by three officers of the same Department. The Case Of the first respondent before the Settlement Commissioner was that: "he was allottee in possession of the entire property which, in fact, was one house, but had been assigned property Nos.519 to 522."

But this assertion falls to tire ground because house No.520, which should be in between 519 and 522, was transferred to Chhanga and this transfer was nowhere disputed by the respondent. As against this oral assertion, the findings of fact recorded by the inspector, Deputy Settlement Commissioner and the Additional Settlement Commissioner clearly go to show that properties Nos.5319/520 and 521 are separate houses and were transferred as such to the appellant, Chhanga and the respondent respectively. The appellant had himself chosen to apply for the transfer of one house, which was duly made to him and the transfer documents were issued to him accordingly. The latter attempt made by the respondent to get property No.s19 entered in hi‑, transfer documents stood exposed as per findings of fact recorded by the three Settlement officers as mentioned above. Who had the occasion to examine the entire record. In spite of they fact that the appellant had raised the question of interpolation in the record, the learned Settlement Commissioner, while passing his order dated 2‑11‑1973, did not advert to the same and held to the contrary that; "even if inadvertently the addition of this number (519) was not made originally and was inserted later on, even then the respondent could not be deprived of that portion."

Such finding of fact in respect of serious allegations of interpolation in the record, was not liable to be set aside in this case, as rightly contended by the learned counsel for the appellant, in the exercise of revisional jurisdiction. The learned High Court too, unfortunately did not go into all these questions while dismissing the constitutional petition of the appellant.

9. As a result of the above discussion, we would set aside the impugned judgment of the learned High Court and order of the Settlement Commissioner dated 2‑11‑1973 as having been passed without lawful authority. The appeal is, thus, allowed with no order as to costs.

M . Y. H. /G‑9S/S Appeal allowed.