Hafiz NOOR MUHAMMAD and others vs GHULAM RASUL and others

' MAMOON KAZI, J.---By order dated 8-1-1978, respondent No,1 Ghulam Rasool was transferred Plot No, 28-A, W-15, measuring 22' x 29', situated in Chiniot, by the Deputy Administrator (Residual Properties), Jhang, which was followed by transfer order dated 18-1-1978. The said transfer was called into question by the appellants before the Lahore High Court in W.P. No,16-R-1992. The case of the appellants, all of whom claim to be residents of the same Mohallah, was that, the plot in question had been used as a common passage since partition of the Indian Sub-Continent, therefore, the transfer was illegal.

2. The disputed property is said to be situated in Mohallah Haveli Kapooran, Chiniot Initially, two rooms on the first floor of the said property had been transferred to one Mst. Sanawra Begum, who subsequently transferred them to Nazir Ahmed and thereafter, they were purchased by respondent No,1 Ghulam Rasool. In demarcation sketch, the disputed portion had been described as Deori, and Ghulam Rasool had claimed it to be part of the house which had been transferred to Sanawra Begum, but the matter was agitated before the Settlement Authorities and ultimately the Settlement Commissioner vide his order dated 30-7-1968, held that entitlement of Ghulam Rasool could not extend beyond what had been transferred to Snawra Begum. The said order was challenged by Ghulam Rasool in Writ Petition No,1105/R of 1968 before the Lahore High Court but the findings of the Settlement Commissioner were not disturbed as the appellants had failed to establish any illegality in the said order. Against the order L.P.A. No,350 of 1968 was filed by Ghulam Rasool, but subsequently the same was withdrawn and hence dismissed. Thereafter, the disputed portion was transferred to Ghulam Rasool as an independent unit.

3. In the second round of litigation before the High Court, the learned Judge in Chambers, who heard the same, was not impressed by the appellants' claim that the portion of the house in question had been used as a common passage. The transfer of the property by the Deputy Administrator in favour of respondent No,1 was, therefore, held to be valid. The petition, according to the learned Judge, also suffered from laches, as the order impugned had been passed in 1978 whereas the petition was filed before the High Court on 25-1-1992.

4. Leave was granted by this Court to examine whether the plot in dispute could be treated as residual property.

5. Mr. Muhammad Zainul Abedin, learned counsel for the appellants has argued that the contention of the appellants that the property in question was a common passage had been accepted by the Settlement Authorities below and as such the same was not available for transfer as a separate unit. The learned counsel has referred to the relevant Scheme for the Management and Disposal of Available Urban Properties, which came into force by Notification, dated the 31st January, 1977. Learned counsel for the appellants, while referring to the definition of "available properties" in the said Scheme, has argued that, common passages have been intentionally excluded from the said definition. The order of the Deputy Administrator, dated 8-1-1978, was also assailed by the learned counsel as being violative of the principles of natural justice as no notice had been served on the appellants, who had been contesting the matter in the previous litigation.

The matter was also claimed to be barred by res judicata as the earlier petition filed by respondent Ghulam Rasool before the High Court had been dismissed. Lastly, according to the counsel, the findings of the learned Judge in chambers that the petition suffered from laches, cannot be sustained as the appellants had no knowledge about the said transfer in favour of the respondent No,1 by the Deputy Administrator.

6. There, however, appears to be no force in any of the said contentions. Learned counsel for the appellants has mainly relied upon the order of the Additional Settlement and Rehabilitation Commissioner, dated 12-10-1967, but the said order nowhere indicates that the disputed property had been exclusively treated as a public thoroughfare. On the other hand, it was held to be available for disposal as an evacuee property and it was also left to the Municipal Committee to acquire the same for public purpose if it so desired. The said order was challenged by both the parties first in Revision before the Settlement A Commissioner and then before the High Court, but further interference with the order of the Additional Settlement Commissioner was declined. So far as the appellants are concerned, the said judgment attained finality, as it was not challenged by them. It has, therefore, been, rightly observed by the learned Judge in the High Court that the matter had become a past and closed transaction. The said property being available for disposal, its transfer to respondent No,1 as a separate unit cannot be questioned as illegal.

7. For the said reasons, the other contention of the learned counsel for the appellants that the order of the Deputy Administrator, which had been passed without notice to the appellants, was also illegal, is equally without force. The appellants had claimed no right or title in the disputed property except for their right to its user as a public thoroughfare. Having already failed to establish such claim, they had no locus standi to be impleaded as a party before the Deputy Administrator.

8. The invocation of doctrine of res judicata is also misplaced. The Court in order to apply the bar of res judicata must first determine, whether the issue was raised, determined and decided in the former proceedings between the parties. There being no indication that the question in regard to the use of the said property had been conclusively determined by the Settlement Authorities or the High Court in the earlier litigation, the said contention has no force.

9. It lastly brings us to the question whether the findings of the learned Judge in chambers that the petition suffered from lathes are founded on valid grounds. The findings have been assailed on the ground that the appellants had no knowledge about pendency of the said proceedings before the Deputy Administrator. The appellants have claimed that a suit was filed in the Civil Court against one of the appellants which was withdrawn on 26-3-1992 and it then transpired that the respondent had obtained an order in his favour from the Deputy Administrator. Even if we agree with the said contention of the appellants, nothing can turn thereon, as even otherwise, this appeal has no force.

' We are, therefore, unable to agree with any of the contentions of the learned counsel for the appellants. The different judgments cited as precedents are not attracted to the facts of this case.

In the result, the appeal is dismissed.