MUHAMMAD SARWAR vs QUTAB DIN AND OTHERS
This matter arises from a petition challenging the transfer of property under settlement laws where the petitioner initially claimed his shop was part of House No. 3822 and contested its sub-division. After failing in his appeals and revisions up to the Chief Settlement Commissioner, the petitioner shifted his stance, asserting that the house measured only two marlas and seeking transfer of his shop as part of an adjoining plot. Although a Settlement Commissioner accepted his revision, the High Court accepted the respondents' writ petition, holding that the petitioner was estopped by his earlier pleadings and that the settlement authorities lacked jurisdiction to re-open the matter after the issuance of Permanent Transfer Deeds. The Supreme Court of Pakistan upheld the High Court's view, holding that a party cannot be permitted to approbate and reprobate by changing its factual stance after final conclusion of proceedings, and accordingly dismissed the petition.
- Whether a party can change its factual stance in subsequent proceedings after its initial claim regarding property transfer has been finally dismissed?
- Do settlement authorities have jurisdiction to re-open a concluded property transfer matter after the issuance of Permanent Transfer Deeds?
ORDER
' M. S. QURAISHI, J.-House No, 3822, Pakpattan, was divided into two units and transferred one each in favour of respondents 1 and 2 by the Deputy Settlement Commissioner on 23-12-1959. The petitioner, who had set up a shop on one Marla of the property, challenged the transfer by appeal which was, however dismissed by the Additional Settlement Commissioner for the reason that the house is too small to be sub-divided. It consists of only 2 Marlas of land". This finding was challenged by the petitioner in a review petition wherein he asserted that property No, 3822 was on a plot measuring 14 Marlas 3 Sarsais and not 2 Marlas and that his shop was in that property. He repeated the same assertion in his revision petition, which he filed after dismissal of his review application. He failed throughout and ultimately his second revision before the Chief Settlement Commissioner was dismissed on 20-9-1963.
2. Having failed so far, he changed his position and asserting on the basis of the aforesaid observation of the Additional Settlement Commissioner, that the area of House No, 3822 was only 2 Marlas he sought on 13-11-1964 transfer of the area of .1 Marla of his shop in his possession, claiming the same to be available and being part of an adjoining plot of 12 Marlas. He ultimately succeeded before the learned Settlement Commissioner, Montgomery, who by order dated 16-3-1966 accepted his revision and directed the Deputy Settlement Commissioner to carry out measurement of the entire site according to the revenue record, demarcate the actual area of unit No, 3822 as given in the taxation register, amend the transferees' P. T. Ds. Accordingly and re- consider the petitioner's claim in accordance with law. The respondents challenged this order by a writ petition which was accepted by the impugned judgment dated 25-2-1980 upon the view that the petitioner having asserted that his shop had been part of the property transferred to the A respondents was estopped from re-agitating the matter on a different plea ; that the matter having been concluded by the order of the Chief Settlement Commissioner dated 20-9-1968 and P.
T. Ds. Having issued in favour of the respondents, the Settlement Authorities had no jurisdiction to re-open the same.
3. The original transfer order dated 23-12-1959 does not give the extent of the property transferred to the respondents. It had never been the petitioner's case until 13-11-1964 that the shop did not form part of the property already transferred in favour of the respondents, in the circumstances.
We are not inclined to interfere with the view taken by the High Court and dismiss this petition.