Mst. BIBI BAI AND OTHERS vs ABDUL SHAKOOR AND ANOTHER
This civil petition for special leave to appeal arises from a property dispute concerning a shop in Jodia Bazar, Karachi, previously treated as evacuee trust property. The respondent, a displaced person in possession, had initially filed a transfer form which was rejected on the ground that the property was trust property, yet the property was subsequently auctioned to third parties who transferred it to the petitioner's predecessor-in-interest. The respondent successfully challenged the auction through an appeal, though a subsequent revision restored the auction. The High Court ultimately set aside the auction and remanded the matter to settlement authorities, prompting the present petition. The core legal question addresses whether an auction of property previously categorized as trust property can stand when the original claimant in possession held a preferential right. The Supreme Court of Pakistan dismissed the petition, holding that if the property was trust property at the time of auction, the auction was totally void, and if it was not, the claimant in possession was entitled to its transfer. The key principle laid down is that an auction of purported trust property without proper determination of its status is void, and a claimant in possession retains preferential entitlement upon the removal of the trust bar.
- Whether an auction of property conducted while it was categorized as trust property is void if the property's status is subsequently challenged?
- Does a claimant in possession retain a preferential right to the transfer of property once the bar relating to its trust status is removed?
- Can a subsequent purchaser claim a better title through an auction that is found to be void ab initio?
1. ' HAMOODUR RAHMAN, C. J.-The dispute in this case relates to a shop bearing No, G/1 in a building on plot No, N. P. 10/65 in Jodia Bazar, Karachi. It was in possession of the respondent, Abdul Shakoor, a claimant displaced person who had filed a C. H. Form for its transfer on the 6th November, 1960 but his form was rejected on the ground that the property in question being a trust property was not transferable. The said claimant then continued to pay rent to the Divisional Evacuee Trust Committee, Karachi, until 30th June, 1968 but he was surprised to find that on the 18th April, 1968 the same shop was auctioned in favour of two persons named, Mohammad and Ibrahim and a P. T. D was issued in their favour on the 18th July, 1968. These auction-purchasers within a month thereof sold the property to the predecessor-in-interest of the present petitioner on the 28th August, 1968.
2. In these circumstances, the respondent, Abdul Shakoor, filed an appeal against the issuance of the P. T. D. In favour of Muhammad and Ibrahim. This appeal was allowed on the 8th January, 1969, and a direction was issued to the Deputy Settlement Commissioner to decide the entitlement of the petitioner after setting aside the auction. The petitioner's predecessorin-interest then went up in revision to the Settlement Commissioner who set aside the order of the Additional Settlement Commissioner and maintained the auction in favour of Muhammad and Ibrahim. The respondent, Abdul Shakoor, then challenged the order by a writ petition in the 'High Court of Sind & Baluchistan.
3. The petition was allowed and the auction was set aside and the case was sent back to the Settlement authorities to consider the entitlement of the said Abdul Shakoor.
4. The petitioner has now come up for special leave to appeal and it is contended on his behalf that the High Court has failed to notice the said Abdul Shakoor's claim that he had filed a C. H. Form which had not been accepted by the Settlement authorities was itself disputed. In any event, - Abdul Shakoor was held to have lost his right by reason of not filing any appeal against the order rejecting his C. H. Form.
5. ' It is to be remembered that the C. H. Form was rejected on the ground that the property was held to be trust property. If subsequently it was found that the property was not trust property then the person who had a preferential right was the claimant in possession and his C. H. Form should then have been restored and the entitlement of the claimant decided. The dispute relating to the filing of the C. H. Form will also come up for consideration before the Settlement authorities when the question of the entitlement of the respondent is taken up. In the circumstances, we consider that the order passed by the High Court was proper and in every way justified.
6. ' The petitioner has contended that he ought to be allowed to contest the proceedings and if it is held that the said, Abdul Shakoor, had not filed a C. H. Form then the auction in favour of Mohammad and Ibrahim should be restored. We are unable to accede to this request because if the property was trust property at the time the auction was held then the auction was totally void.
7. On the other hand, if the property was not trust property then -the person who is entitled to its transfer will be the person in possession and it is admitted that Abdul Shakoor was and still in possession.
8. ' In the circumstances we cannot appreciate how the petitioner can claim to come in. This petition is, accordingly, dismissed.
Cited by 1 case
- 2001 MLD 1699 2001 MLD 1699