MUHAMMAD RAMZAN Versus SETTLEMENT COMMISSIONER, SARGODHA , Nemo
This appeal arises out of a property dispute concerning the identity and transfer of evacuee shops bearing numbers 46 and 53 in Sargodha, involving conflicting claims by auction-purchasers and local occupants. The core legal question revolves around the correct identification and demarcation of the independent units claimed by the respective parties, and whether relief can be granted to satisfy substantial justice when parties make bona fide mistakes or concessions regarding property identification. The Supreme Court held that the properties in question constituted distinct units and, after correcting an initial concession made under a mistake of fact prior to the signing of the judgment, adjusted the claims equitably between the parties to ensure substantial justice. The key principle laid down is that courts may rectify unfinalized or unsigned orders rendered under a mistaken concession of counsel and mould relief to ensure substantial justice between competing claimants of evacuee property based on equity and factual inspection.
- Whether an appellate court can reconsider a matter upon a request regarding a mistake in marking property units before the judgment is formally signed?
- Can rival claimants be granted portions of disputed evacuee property based on equitable adjustment of possession and auction rights?
- Whether separate independent properties wrongly merged or confused under settlement proceedings can be demarcated through site plans and counsel endorsements?
- Section 3, Law Reforms Ordinance, 1972
1. MUHAMMAD AFZAL ZULLAH, CJ: ‑‑ In this appeal through leave of the Court the facts and circumstances and the point noted for examination are as under:‑‑
2. Muhammad Ramzan, a local, claimed to be in possession of Shop No.53, Block No.9, Sargodha, which, according to him, was in a burnt and dilapidated condition and was subsequently reconstructed by him. He died. He was represented by his legal representatives, Abdul Aziz and Abdul Majid son of Haji Abdul Haque Respondents Nos.4 and 5 herein are the auction‑purchasers of Shop "46", but, according to the appellants, it is their shop (bearing No.53) which had illegally been transferred/auctioned by wrongly calling it as Shop No.46: It is stated that when Muhammad Ramzan applied for the transfer of Shop No.53, the Settlement Inspector visited the spot and submitted his report on 19‑8‑1965 as follows:‑‑
3. "I have inspected the spot. The shop is in possession of Muhammad Ramzan s/o Ghulam Hussain, a local and it opens towards the Eastern side. The applicant claims its transfer on repair basis. I have also consulted the relevant record. Property No.53, Block No.9, Sargodha, is silent on the point of disposal of Shop No.53 as mentioned by the applicant. It has, however, been stated that this shop has been auctioned as Shop No.46 in the name of Abdul Aziz for Rs.28,000 and the P.T.D. has been issued to him. I think there is an ambiguity of numbers.
4. In view of the above, it was thought advisible that the parties be summoned to arrive at the correct position.
5. When the report came up before the Deputy Settlement Commissioner he passed the following order thereon on 20‑8‑1988:‑‑
6. "The question of summoning the parties after the issue of P.T.D. does not arise. If the shop in dispute has not yet been auctioned it may be brought on the auction list. The aggrieved party can seek remedy in the proper Court of law. Mr. Din Muhammad counsel for Muhammad Ramzan informed."
7. Muhammad Ramzan filed an appeal against the above order before the Additional Settlement Commissioner who dismissed the same by his order dated 27‑10‑1965 mainly on the ground that after issuance of the P.T.D. to the respondents, he was not competent to interfere. The revision filed against this order before the Settlement Commissioner also failed. It was observed by the Settlement Commissioner that the P.T.D. of this shop has already been issued in favour of the respondent". And then went on to add, somewhat inconsistently that:‑‑
8. "Muhammad Ramzan claims that he is in possession of Shop No.53 which is an independent property. If this is so he can have no difference with the respondents on this matter."
9. The appellants' predecessor (Muhammad Ramzan) then moved the High Court by a Writ Petition but that too was dismissed by a learned Single Judge vide order dated 18‑4‑1974. He was constrained to file an Intra‑Court Appeal. But that appeal was also dismissed on the ground that the appeal was not competent in view of the terms of the second proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972.
10. As is apparent from the afore reproduced narration even before the Settlement Authorities the controversy revolved round the identity of the two properties if at all they had independent existence. If it is one and the same property then of course only one party would get it. If they are two then it is possible for both the parties to partly succeed in this appeal. In order to ascertain the real nature of the dispute about the identity learned counsel for the appellants relied upon a site plan at page 88 of the paper book. Its larger photo copies have also been placed on record as `X' and `Y'.
11. After hearing the learned counsel for both the sides we gained an impression as if each party was claiming different shops though they might have been only different units in a composite property. While the appellants' counsel laid claim on 53, the respondents' counsel claimed No.46. On the plans referred to above which in reality are copies of the same plan‑‑Nos.46 and 53 have independent and separate identities. Keeping this aspect of the case in view which developed during the arguments and also as a result of the examination of the site plan, we first asked the learned counsel for the respondents to shade in blue exactly the portion being claimed by that side. He did so with a blue pencil This shading was done by the learned counsel for the respondents without showing it to the learned counsel for the appellants. The latter was then requested to shade in red the unit being claimed by the appellants' side. He did so in red pencil. His marking has been described on the site plan copy `X' as A, B, C, D, while the marking by the learned counsel for the respondents in blue pencil has been marked by us as E, F, G, H, on the site plan copy `Y'. Both units are not only independent but there is a third portion lying in between the two. Therefore, there remained no confusion nor any possibility of any mix up. When both the learned counsel were told about this position they accepted it and made endorsement to the same effect on their respective units ‑‑‑ A, B, C, D by the appellants counsel and E, F, G, H, by the respondents' counsel. The endorsement recorded by the learned counsel for the appellants is "No.53 appellants' want this shop". An arrow‑head in red pencil on the plan 'X' identifies the units A, B, C, D, signed by the learned counsel for the appellants. Similarly the learned counsel for the respondents also made the endorsement on the copy of plan `Y' with arrow‑head linking the endorsement to E, F, G, H. It reads as follows:‑
12. "The shop shaded blue has been transferred to the respondents and claims the same only."
13. Signed,
14. Advocate for the appellants."
15. The dispute thus having been resolved this appeal stands disposed of with the further clarification that the appellants' side gets A, B, C, D, without prejudice and subject to the rights of 3rd party but not the respondents' side herein. Similarly the respondents' side gets E, F, G, H, subject to and without prejudice to the right of the 3rd party but not the appellants' side herein. There shall be no order as to costs.
16. CJ.
17. J.
18. J.
19. Lahore,
20. 24th October, 1992
21. [The above opinion has not been signed].
22. Sd./
23. C.J.
24. After the above judgment had been dictated the learned counsel for the appellants made a request that he under serious mistake wrongly marked portions A, B, C, D as discussed in the aforerecorded opinion and that in reality the appellants' claim was regarding a part of the portion marked E, F, G, H, namely, one of the two smaller rectangles which forms a corner shop in the so‑called Unit No.46. Though it has not been so marked as part of the said unit, for purpose of clarification in the same plan which was marked `X' as containing the claim of the appellants, we have no marked the said corner shop as El, E2, E3 and E4. We have re‑heard the matter and have permitted the learned counsel for the appellants to substantiate the amended claim with reference to the site plan already marked. He has advanced a formidable argument; namely, that Munawar Din the predecessor‑in‑interest of the appellants was noted in the report submitted by the lower staff to the D.S.C. as back as 1963, being in possession of two shops units namely, Nos.46 and 53. Learned counsel for the respondents objected that he was in fact another Munawar Din who was a local and was working as Clerk in the D.C. Office. This with due respect is based on a misreading by the learned counsel for the respondents; because the said local Clerk is also mentioned in the same report separately in possession of another Unit No.54. Learned counsel for the respondents then tried to explain that although Munawar Din was in possession but he was in possession of another shop not in property No.46‑‑it was in property No.53. The report already mentioned shows that he was in possession of two shops ‑‑ ‑one, in property No.46 and the other in property No.53.
25. The claim of the appellants as successors‑in‑interest of Munawar Din is with regard to one shop only. Otherwise also Munawar Din could not get both the shops. The claim of the appellants to the shop now marked El, E2, E3 and E4 as "a part of property No.53" is unnatural because the other shop which is not numbered and falls between this so‑called No.53 shop would then obviously be treated as part of property No.46. This would create an absurdity and to say the least an impossible situation. The other shop which is now marked Zl, Z2, Z3 and Z4 in natural context could be an extension of property No.53 and not the other shop claimed by the appellants which is undoubtedly a corner shop; and the same, in all probability might be an extension of property No.46. If at all, these small (two) shops in dispute were extensions of the adjoining properties Nos.46 and 53. We, therefore, hold that the appellants predecessor‑in‑interest was entitled to shop now marked Zl, Z2, Z3 and Z4.He could not lay claim on shop El, E2, E3 and E4 as extension of property No.53. The said shop El, E2, E3 and E4 would, therefore, remain with the respondents' side as part of No.46; while the appellants as successors‑in interest of Munawar Din would get shop Zl, Z2, Z3 and Z4 which falls in between shop El, E2, E3 and E4. and property No.53. These two shops, one going to the respondents' side and the other going to the appellants' side have also now been marked as 46/1 and 53/1.
26. Thus notwithstanding the earlier unsigned recorded opinion, with the foregoing modification, this appeal is allowed. It may be mentioned here that in addition to the foregoing reason we have taken note of the fact that both sides having almost similar if not equal rights to the acquisition of evacuee property, one on the basis of auction and the other on the basis of occupation of burnt evacuee property, substantial justice has been done by satisfying, to a considerable extent, the claims of both the sides. This approach is also in accord with the rule of equity laid down by this Court in Barkat Ali v. Settlement and Rehabilitation Commissioner (PLD 1991 SC 610). It is further A clarified that the re‑hearing was ordered on account of an innocent mistake made by the learned counsel; on account of which neither he nor his clients deserved to be penalised, by adverse results or effects. There does not seem to be any technical impediment in the procedure adopted by us for re‑hearing of the appeal as the order passed on wrong concession of the learned counsel for the appellants, had not yet been signed. If, however, any difficulty in understanding of this aspect of the case arises, the present order can also be treated as an order in review suo motu or otherwise. There shall be no order as to costs.
27. M.B.A./M‑1722/S Order accordingly.