ABDUL HAKIM Versus MUHAMMAD AZAM KHAN

ORDER

S.A.NUSRAT, J.‑ ‑The dispute in this petition relates to the transfer of a house No.2‑15/10 situated on Jamaluddin Afghani Road, Quetta. The disputed house was transferred to the petitioner on the basis of NCH form through a P.T.O. issued to him on 21‑10‑1961. It is alleged that none else had applied for the transfer of the house at that time. On some application moved by one Muhammad Nasim, the P . T . D . issued in favour of the petitioner was cancelled in 1963 by the Additional Settlement Commissioner. The said order was challenged by the petitioner in revision, which was, however, dismissed on 23‑8‑1963. The petitioner thereafter applied for the transfer of the disputed house on average auction price to the Additional Settlement Commissioner and the matter was referred to the Settlement Commissioner. Later, by his order dated 7‑9‑1963, approved the transfer of the house and consequently the house was transferred by the Additional Settlement Commissioner on 6‑1‑1964 at the average auction price of Rs.4,850. It is stated that this amount of auction price was adjusted against the payment of Rs.6,048, which was already lying with the Settlement Department since 1961 when P.T.O. was earlier issued to the petitioner on the basis of the N.C.H. form. After the lapse of about 8 years, on some anonymous application, the order of transfer dated 6‑1‑1964 passed in favour of the petitioner was set aside by the Chief Settlement Commissioner in exercise of his suo motu jurisdiction and the case was remanded for fresh decision to the Deputy Settlement Commissioner. On remand, the Deputy Settlement Commissioner, by his order dated 15‑5‑1973, came to hold that the disputed house was available for transfer and the occupant can file form under Settlement Scheme No.VIII for transfer of the same within 15 days from the date of the said order. Mst.Farrukh Taj and one Azam Jan were applicants/ petitioners in the proceedings before the Chief Settlement Commissioner as well as the Deputy Settlement Commis?sioner when the above two orders were passed in the case. The order of the Chief Settlement Commissioner as well as that of the Deputy Settlement Commissioner were challenged by the petitioner in the High Court in C.P. No.4 of 1973, which was allowed by judgment dated 12‑6‑1974 and the impugned orders were declared to have been passed without lawful authority. Mst.Farrukh Jan was a co‑respondent in the above constitutional petition filed by the petitioner.

It appears that earlier on 8‑5‑1972, the petitioner on the basis of the transfer order passed in his favour on 6‑1‑1964, applied for eviction of Mst.Farrukh Taj, the occupant of the premises, to the Rent Controller. Respondent No.1 Muhammad Azam Khan was impleaded in the said rent case on his own application. The ejectment application was allowed by the Rent Controller 29‑9‑1983 and Mst.Farrukh Jan was ordered to vacate the premises. The first respondent and Mst.Farrukh Taj filed a rent appeal against the order of eviction so passed, which was allowed by judgment dated 8‑6‑1985 mainly on the consideration that no eviction application could be maintained without the petitioner having obtained a P.T.O. or P. T. D. In the circumstances, the petitioner, by an application dated 4‑8‑1985, approached the Member Board of Revenue for the issuance of a P. T. D. in his favour. The application was allowed by the learned Member Board of Revenue by order dated 1‑12‑1986 and it was directed that a P. T . D. may be issued in favour of the petitioner. On completion of this round of litigation, respondent No.1 filed a civil suit on 25‑4‑1975 in the Court of Additional District Judge, Quetta, for declaration and injunction. It was, inter alia, stated in the plaint that the plaintiff /respondent had several times approached the Settlement Department for issuance of P.T.D. to him, which was declined and the plaintiff was entitled to the transfer of the house as a recorded tenant of the Custodian and as also being "in possession of the house along with his relatives". The suit was decreed by the learned trial Court on 30‑12‑1986. The said judgment and decree was challenged by the petitioner in regular first appeal before the High Court, which was dismissed as per impugned judgment. Hence this petition.

2. The learned counsel for the petitioner raised the following contentions in support of the Petition:‑

(i) That the controversy with regard to the transfer of the house stood finally resolved by judgment of the High Court dated 12‑6‑1974 passed in C.P. 4 of 1973.

(ii) That the Member Board of Revenue had, by his order dated 4‑8‑1985 directed the issuance of a P. T . D. to the petitioner in the proceedings to which Mst.Farrukh Taj and the first P respondent were parties, but had later failed to appear in the case. As such the said order not having been challenged was binding upon the first respondent and could not have been questioned in the suit.

(iii) That the suit filed by the first respondent in 1975 was time barred and although no such ground was taken in the written statement, yet the point having been raised in the High Court the same was liable to be decided and the suit should have been dismissed accordingly.

(iv) That the order of the Member Board of Revenue dated 1‑12‑1986 was brought on the record of the suit; still no effort was made by the first respondent to amend the suit and hence the said order could not be challenged in collateral proceedings.

(v) That the order passed in the suit was based on no evidence as the first respondent had failed to produce any proof regarding his tenancy under the Custodian or of making an application for the transfer of the house.

3. The above contentions require examination and leave is accordingly granted. Security Rs.2,000.

M.Y.H./A‑291/S ????????????????????????????????????????????????????????????????????? Leave to appeal granted.