SHER AFZAL KHAN AND OTHERS vs Haji RAZI ABDULLAH AND OTHERS

ORDER

' ZAFFAR HUSSAIN MIRZA, J.-The dispute in this case relates to an evacuee property originally owned by a single evacuee owner Mehrchand and according to the 1944-47 Assessment Register and Register of the Cantonment Board, Peshawar, was entered as shop bearing No, 353. One property was in possession of one Abdul Razak and the other portion in the possession of Jamil Rehman which was allotted to him on 7-9-1950. Subsequently Jamil Rehman, on the basis of his possession applied for the transfer of the shop and was transferred the same as per order dated 15-10-1959.

He was issued P. T.

0. Dated 12-6-1963 and P. T. D. Dated 4-2-1969 in respect of entire property No, 353. Jamil Rehman has transferred and conveyed the property by sale in favour of Razi Ahdullah the first respondent.

2. The trouble started when the first respondent demanded rent from the petitioner who was then in occupation of the property, which was previously occupied by Abdul Razak. The petitioner did not pay rent and instead applied for transfer of the portion in his occupation on 24-6-1977 under Settlement Scheme No, 1 of 1976. This application was eventually sent to the Deputy Settlement Commissioner, Peshawar, for report and the latter officer reported that Property No, CA 154/2/353-A (portion of the disputed property originally in possession of Abdul Razak, to be referred to as No, 353-A) was available for transfer. It is in this background that portion bearing No, 353-A was transferred to the petitioner by order dated 27-12-1977 by the Deputy Settlement Commissioner, who was ultimately issued the necessary transfer documents in respect of this portion.

1 As the Settlement Laws had been repealed by then, the first respondent challenged the order of transfer of the property originally transferred to him as Property No, 545, before the Peshawar High Court by invoking the Constitutional jurisdiction. Learned Acting Chief Justice of the Peshawer High Court, who heard the petition, on the materials placed before him came to the conclusion that concerned authorities were not competent to reopen the matter and inquire into the case, after a valid P. T. D. Showing the entire property bearing No, 353 was issued to hold that the same constituted two independent units bearing Nos. 353-A and 353-B or that Jamil Rehman was transferred only the portion bearing No, 353-B. In this connection he referred to the enquiries conducted by the Settlement Authorities before issuing the P. T. D. In favour of Jamil Rehman, in which was found that the entire property was one unit. Reference was also made to the admitted fact that Jamil Rehman had in his application sought transfer of property bearing No, 353 and not a portion of that. It was conceded on behalf of the petitioner that he had not made any effort to obtain transfer of the disputed portion at the time enquiries were made prior to issuance of P. T. D.

In favour of Jamil Rehman or filed any appeal against the transfer of entire property in his favour. In this view of the matter the High Court accepted the Constitutional Petition of the first respondent, quashing the order of transfer in favour of the petitioner herein, with the result the transfer of entire property was restored in favour of the first respondent, vide judgment dated 26-4-1983. The petitioner now seeks to challenge this judgment by means of this petition for special leave to appeal.

4. In support of the petition Mr. Abdul Samad Khan, learned counsel for the petitioner, has endeavoured to pursuade us to re-examine the evidence produced on record to hold that the property consisted of two separate units comprising Nos. 535-A and 353-B, and that the first respondent was transferred only the unit bearing No, 353-B. His main argument was that Jamil Rehman had applied for one shop actually in his possession and P. T. D. Had also been issued in respect of one shop only, whereas he was now claiming two shops. There is, however, no force in these submissions. Apart from the reasons that found favour with the learned Chief Justice of the High Court, with which we agree fully, we find that the undisputed fact remains that the P. T. D.

Issued in favour of the first respondent covered the whole property which remained in the field until the repeal of the Settlement Laws, which accordingly was a past and closed transaction. We do not see how, after the repeal of these laws, the authorities under the new dispensation that came into being under the repealing statute and under the new scheme promulgated in 1976, could undertake an enquiry in order to review and reopen such past and closed transactions. Even a case of fraud could be enquired into or adjudicated upon provided jurisdiction to exercise such power survives the repeal. No such provision was pointed out by the learned counsel. The exercise of jurisdiction was, therefore, palpably coram non judice and wholly incompetent.

5. For the reasons stated there is no merit in this petition which is accordingly dismissed.