IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR 
 
 
MR. JUSTICE IQBAL HAMEEDUR RAHMAN  
 
 
MR. JUSTICE MAQBOOL BAQAR 
 
 
CIVIL APPEAL NO.1137 OF 2008 
(Against the judgment dated 25.4.2006 of the 
Lahore High Court, Lahore passed in LPA 
No.169 of 1968) 
 
 
M/s Beach Luxury Hotels, Karachi 
 
…Appellant(s) 
VERSUS 
M/s Anas Muneer Ltd. etc. 
 
…Respondent(s) 
 
For the appellant(s): 
Mr. Khalid Anwar, Sr. ASC 
Mr. M. S. Khattak, AOR 
 
 
For respondent No.1: 
Mr. Najam-ul-Hassan Kazmi, Sr. ASC 
 
 
Date of hearing: 
19.11.2015 
… 
JUDGMENT 
 
MIAN SAQIB NISAR, J.- This is an appeal filed against the judgment 
delivered by a division bench of the Lahore High Court in ICA 169 of 1968 in terms 
whereof the judgment delivered by a learned single judge of the High Court was set 
aside and the case was decided in favour of the present Respondent.  CPLA No.665 
of 2006 was filed against the said judgment.  The Respondent appeared before this 
court and unsuccessfully opposed the grant of leave to appeal, inter alia, on the 
ground that an appeal lay as of right in the present case and hence leave to appeal 
should not be granted.  It was, however, contended on behalf of the Appellant that the 
value at which the disputed property was transferred showed the transfer price as 
being Rs.44,790.0 which is below Rs.50,000 and on the basis thereof his objection 
was over ruled.  A review petition has been filed against the said order.  However, it 
is not necessary to re-examine the question as to whether the transfer price was below 
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Rs.50,000 or not since this court has already granted a moratorium in relation to such 
petitions.   
2. 
On the merits, the main objection raised on behalf of the Respondent before us 
was that the order of the Chief Settlement Commissioner in terms whereof the matter 
was re-opened disregarded the fact that prior thereto Ordinance No.II of 1962 had 
come into force with effect from 13.1.1962 and in terms thereof the provision of sub-
section (2) and (4) of Section 20 of the Displaced Persons (Compensation and 
Rehabilitation) Act, 1958 stood omitted.  It was accordingly argued that the 
Settlement Department did not have the jurisdiction to re-open the case.   
3. 
The essential facts of the case may now be considered.  The property known 
as Nedous Hotel was transferred by means of a public auction. The auction notice 
states that the evacuee property known as Nedous Hotel would be sold on 
21.08.1961.  The auction was to be conducted by the Additional Settlement 
Commissioner, Lahore and presided over by the Settlement Commissioner (in 
dispute). The highest bid was tendered by Mr. Avari (hereinafter referred to as the 
Appellant) in the sum of Rs.1,21,00,000/- and in consequence thereof a Permanent 
Transfer Certificate was duly issued to him  in which the area of the property was 
specified as being 96 kanals, one marla and 12 sq. feet.  The boundaries were also 
specified as being on the north , PIA plot, WPIDC plot, Transport House and CSC 
Office and in the south Upper Mall,  on the east Al-Hamra Arts Council and on the 
west WAPDA House.  The Appellant’s bid of Rs.1,21,00,000 had earlier been 
accepted by the Chief Settlement Commissioner on 7.9.1961. Although the 
permanent transfer certificate was issued on 6.10.1964 much prior thereto on 
9.1.1962 the Appellant submitted a written application.  By means of this letter it was 
submitted that at the time the possession of Nedous Hotel was given to him it was 
brought to the notice of the officer delivering possession that an area measuring 
approximately 530 sq. yards, or about 1½ kanals,  belonging to Nedous Hotel and 
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lying between the Mall and the northwestern wing of the Hotel, had been enclosed by 
a wall and it was occupied by a service station.  It  was stated that at that time an 
assurance was given that the said area occupied by the service station would be 
recovered and possession handed over to him.  It was further stated that the matter 
was also brought to the notice of the Settlement Commissioner to whom the letter 
was addressed and he repeated the same assurance.  It was requested therefore that 
the appropriate action should be taken. Reliance was placed by the Appellant on a 
further letter as well dated 11th April which was addressed to the Chief Secretary, 
Government of the West Pakistan.  This complained that his earlier letter had not 
evinced any response either from the Chief Settlement Commissioner or any other 
functionaries.  The request was repeated that the said land should be handed over to 
him so that the total area of 96 kanals one marla and 12 sq. feet would be handed 
over to him.  The Hotel was opened on 12th February 1962 as a going concern. Since 
the Government wanted the Hotel to start functioning urgently because of the 
shortage of accommodation the request was therefore made that the Chief Settlement 
Commissioner should hand over the area in question after an actual measurement and 
by removing the encroachment by M/s. Shahnawaz Limited, the occupant (i.e. Anas 
Muneer Limited, the Respondent)  as soon as possible.  
4. 
By means of a letter dated 29.1.1962 which was sent by the Settlement 
Commissioner to the Additional Settlement Commissioner the matter was re-opened.  
This letter is important and is reproduced below: 
“OFFICE OF THE 
CHIEF SETTLEMENT & REHABILITATION COMMISSIONER 
PAKISTAN 
11-Egorton Road, 
Lahore 
 
No. 106-F&M-Reh/62 
 
 
 
 
Dated 29.1.1962 
From 
 
Settlement Commissioner (Industries) 
 
Lahore. 
To 
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Addl: Settlement Commissioner, 
 
Lahore. 
 
Sub:- Disposal of the big mansions & hotels 
 
Property Nos. S-19-R-85 known as Nedous Hotel, 
 
Upper Mall, Lahore. 
 
 
Two units bearing Nos. S-10-R-85A (Khasra No. 1048) and S-19-R-
85A (2) Khasra No. 1047 have been transferred to M/S Shahnawaz Serving 
station Ltd. The Mall, Lahore against one NS from. Only one unit could be 
transferred to then. The Unit No. S-19-R-85A(2) Khasra No. 1047 is a part of 
the Nedous Hotel which has since been auctioned. The transfer of this unit in 
favour of M/S Shahnawaz Ltd. is illegal and calls for immediate cancellation. 
 
2. 
The Chief Settlement Commissioner, Pakistan has order that you may 
please re-examine the case and pass necessary or after hearing the parties 
under intimation to this office. 
 
3. 
The relevant file of the Deputy Settlement Commissioner Lahore of 
this case containing pages 1 to 45 also sent herewith. 
 
DEPUTY SETTLEMENT COMMISSIONER (1) 
for,  
Settlement Commissioner (Industries) 
Lahore. 
 
No. 106-F-F&M-Reh/62 
 
Dated ___________________1962 
5. 
The foundation of the above letter is the clear cut legal position as set out in 
the Act in terms of which only one property could be transferred to a non-evacuee. 
The question, therefore, was whether the Respondent had obtained more than one 
property. If so, the transfer would be illegal and would lead to cancellation.  
6. 
At this stage it would be appropriate to examine the title of the Respondent. 
The record indicates that the Respondent obtained a Provisional Transfer Order dated 
8.1.1960.  Apparently no permanent transfer order was ever issued to him.  The 
Provisional Transfer Order issued by the Deputy Settlement  Commissioner describes 
in the Schedule thereto the properties being transferred, as being not one but two 
properties. The said Schedule states that property No.S.E 19-R-85A and 85A(2), The 
Mall Lahore was being transferred.  Subsequently the Respondent got the property 
numbers changed by the Deputy Settlement Commissioner to read as SE.19.R.85/A 
and SE.19.R.85/A(ii) instead.   
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7. 
The record indicates that not merely were these two different properties but in 
fact even the owners were different.  Prior to getting to the said properties allotted it 
appears that the Respondent was occupying the same in his capacity as a tenant.  In 
this connection, it is necessary to refer to a letter dated 13.11.1956 (i.e. much before 
the transfer of ownership to the Respondent) which was issued by the Settlement 
Department to the Respondent which is important and relevant.  The said letter is 
reproduced hereinbelow: 
 
No. DRC/ACS/RA/5961 
Dated 13.11.1956 
 
From 
 
M.S. Zaman Esq. M.A. (Alig) 
 
Deputy Rehabilitation Commissioner, 
 
(Rent and Repairs) Lahore. 
To 
 
The Shahnawaz Servicing Station Ltd. 
 
1, Charing Cross, The Mall, 
 
Lahore. 
 
Sub: 
Recovery of Rent of property No. SE-19-R/85 A, Lahore. 
 
1. 
Reference your letter dated 6-11-1958 on the subject noted above. 
2. 
There are two different properties i.e. SE-19-R-85(A) and SE-19-R-
85 (E) belonging to two different owners named, K.S. Sathi and R.B.L. Jodhe 
Mal respectively. The rent of the properties has also been fixed separately @ 
Rs. 10/- p.m. and Rs. 83/5/- P.M. Gross. You are therefore requested to 
please pay the rent of the aforesaid properties separately. 
 
3. 
All the amounts paid by you have been shown on the reverse of the 
rent bills which are enclosed herewith. 
 
Sd. M.S. Zaman 
Deputy Rehabilitation Commissioner, 
(Rent and Repairs) Lahore. 
Encl: Two 
Rent Bills. 
 
No. DRC/ACS/RA ____________ Dated Nov 1956 
Copy to: 
 
  The Rehabilitation Officer,  
  Civil Lines, Lahore, for information. 
 
 Deputy Rehabilitation Commissioner, 
 (Rent and Repairs) Lahore. 
 
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The letter speaks for itself and leaves no doubt in the matter that these were two 
different properties belonging to two different owners and in relation to which rent 
was being separately paid to the Settlement Department by the Respondent.  
However, to proceed with the narration of events thereafter the matter was taken up 
by the Additional Settlement Commissioner who passed a detailed order dated 
9.11.1965.   
8. 
The properties which were transferred to the Respondent consist of a petrol 
pump located on Khasra No.1048 and measuring 13 Marlas. The other property 
consists of a service station measuring 1½ kanals located on Khasra No.1047 and it is 
the case of Appellant that this was an integral part of Nedous Hotel which is located 
on the said Khasra.  The Additional Settlement Commissioner directed that necessary 
enquiries should be made with the assistance with Mr. Agha Ali Hussain, Land 
Acquisition and Control Officer, in relation to the questions involved of title and 
possession.  He reported that the Appellant had been handed over possession in full 
except the segment in the possession of Shahnawaz Service Station i.e. on Khasra 
1047.  On behalf of the Appellant it was contended before him that, being an integral 
part of Khasra No.1047. the Respondent was not entitled to claim the said plot of 1½ 
kanal and, in any event, there was no question of his being entitled to two properties 
on the basis of one Application Form alone.   
9. 
In reply various defences were raised by the Respondent.   According to him 
the land bore one number while the construction thereon bore another number.  In 
relation to the ownership question the Respondent produced copies of the tax 
assessments by the Municipal Corporation which showed property bearing 
No.85/A(i) to be owned by one Mr. Sobti which was assessed at Rs.108 and the other 
property namely, 85/A(ii) was owned by M/s. R.B. Ram Saran Dass and R.B. Jodha 
Mall Kuthalia which was assessed at Rs.720.  It appears to us that this argument does 
not advance the cause of the Respondent in any manner whatsoever but on the 
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contrary demolishes it completely. Insofar as the entitlement of the Appellant is 
concerned, he contended that the Settlement Patwari had submitted a report dated 
5.6.1963 according to which the Appellant was in possession of 96 kanals 17 marlas 
and hence was not entitled to any further land.  We will examine this report, which is 
important, closely in  a later part of this judgment.  
10. 
The Additional Settlement Commissioner after hearing both parties came to 
the conclusion that there had been a multiple transfer of the same property in favour 
of both Shahnawaz Service Limited (the Respondent) as well as Mr. D.B. Avari (the 
Appellant).   He however, wanted to satisfy himself further as to Mr. Avari’s 
entitlement and directed that a fresh examination of the same should be carried out by 
a team of five expert officials.  He incorporated their findings in his order and we 
will further consider this at a later stage in this judgement. It will suffice to observe at 
this time that the report was in Mr. Avari’s favour.   
 
He then discussed the reliance by the Respondent on the earlier report of the 
Settlement Patwari and held that an examination of the said Patwari’s report did not 
render any assistance to the Respondent since the report was vague.  In the 
circumstances the matter was decided in favour of the Appellant and the transfer in 
favour of the Respondent was cancelled.   
11. 
Against this order an appeal was filed before the Settlement Commissioner 
which was dismissed by means of an order dated 25.3.1968.  This also concluded that 
possession of Nedous Hotel which was delivered indicated that the small area in the 
possession of the Respondent should also have been handed over at the same time to 
him.  He concluded that the area in dispute was an integral part of Nedous Hotel and 
also that, in any event, the Respondent was not entitled to two properties by any 
stretch of the imagination.  
12. 
After the Respondent had lost in both forums before the Settlement 
Department he approached the Lahore High Court by means of Writ Petition No.423-
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R-68.  The case came up before a learned Single Judge who passed an order dated 
22.5.1968 in terms of which the Settlement Commissioner was directed to produce 
the complete file of the allotment and disposal of the properties which he then 
proceeded to examine personally.  On a perusal of the record he concluded that 
Property No.85-A(i) was owned by Mr. Sobti while the portion designated 85-A(ii) 
was owned by Mr. Jodha Mall and that the property owned by Mr. Sobti had an area 
of 12 marlas whereas the property owned by Mr. Jodha Mall was a separate property 
with an area of 1½ kanals.    
13. 
It is material to note that it was conceded before him by the Respondent that 
the petrol pump was located on the property bearing No.85-A(i) while the Service 
Station (i.e. the disputed plot) was situated on 85-A(ii) and that the latter was 
enclosed by a separate boundary wall.  He then examined the record further and came 
to the conclusion that the Respondent,  on his own showing, was not entitled to the 
property in question for an additional reason as well. This was that it was admitted 
that originally on the plot there was no pacca construction and the katcha 
construction had disintegrated and it was he who had subsequently constructed the 
pacca room.  He concluded therefore that insofar as the property in dispute, which 
was owned by Mr. Jodha Mall was concerned, it could not be classified as a “shop” 
in terms of section 2(12) of the Displaced Persons (Compensation and Rehabilitation) 
Act 1958 and hence could not be transferred thereunder to the Respondent.   It was 
merely an evacuee plot of land. The petition was accordingly dismissed since the 
Respondent had failed to establish his entitlement to the plot in question.   
14. 
The question of more than one shop or property being transferred to a person 
is covered by the Schedule to the Displaced Persons (Compensation and 
Rehabilitation) Act, 1958.  If reference is made to para 9 of the said Schedule it will 
be seen that it provides as under: 
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9. 
A shop in possession of a non-claimant displaced 
person and which the non-claimant desires to retain, shall be 
transferred to him on payment of the prevailing market value : 
 
Provided that not more than one shop shall be transferred to 
any one non-claimant under this paragraph : 
 
Provided further that if there is more than one applicant for the 
transfer of the same shop, the shop shall be transferred to the 
non-claimant who obtained prior possession. 
 
It is therefore clear that in no circumstances whatsoever could the Respondent have 
had more than one property transferred to him. 
15. 
We now turn to the judgment of the learned division bench of the High Court 
which has been impugned before us. By means of this the Respondent’s appeal was 
accepted and the matter was decided in his favour.  Before the learned division bench 
a new legal point was urged for the first time. Reliance was placed on Ordinance II of 
1962 which was issued on 13th of January, 1962 and in terms of which by means of 
section 5 thereof, sub-section (2) and (4) of Section 20 were omitted. Section 20, as 
unamended is reproduced hereinbelow: 
20. 
Revision.-(1) The Central Government at any time 
may call for the record of any case or proceeding under this 
Act in which the Chief Settlement Commissioner or a 
Settlement Commissioner or an Additional Settlement 
Commissioner or a Deputy Settlement Commissioner or an 
Assistant Settlement Commissioner has passed an order for 
the purpose of satisfying itself as to the correctness, legality 
and propriety of such order, and may pass such order in relatin 
thereto as it thinks fit. 
 
(2) 
The Chief Settlement Commissioner at any time may, 
and shall on being directed by the Central Government, call 
for the record of any case or proceeding under this Act in 
which a Settlement Commissioner or an Additional Settlement 
Commissioner or a Deputy Settlement Commissioner or an 
Assistant Settlement Commissioner has passed an order, for 
the purpose of satisfying himself as to the correctness, legality 
or propriety of such order, and may pass such order in relation 
thereto as he thinks fit. 
 
(3) 
A Settlement Commissioner specially empowered in 
this behalf by the Chief Settlement Commissioner may at any 
time call for the record of any case or proceeding under this 
Act in which an Additional Settlement Commissioner or a 
Deputy Settlement Commissioner or an Assistant Settlement 
Commissioner under his jurisdiction has passed an order, for 
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the purpose of satisfying himself as to the correctness, legality 
or propriety of such order, and may pass such order in relation 
thereto as the thinks fit.  
 
(4) 
An Additional Settlement Commissioner specially 
empowered in this behalf by the Chief Settlement 
Commissioner may at any time call for the record of any case 
or proceeding under this Act in which a Deputy Settlement 
Commissioner or an Assistant Settlement Commissioner under 
his jurisdiction has passed an order, for the purpose of 
satisfying himself as to the correctness, legality or propriety of 
such order, and may pass such order in relation thereto as he 
think fit. 
 
(5) 
No order under this section shall be passed revising or 
modifying any order affecting any person without giving such 
person a reasonable opportunity of being heard. 
 
 
In these circumstances it was submitted that the power to reopen the question of title 
had been taken away and hence the Settlement Department had no legal authority to 
interfere in the matter.  
16. 
There is, however, an additional amendment which also took place.  This was 
by means of Ordinance XIII of 1962 dated 17th of March, 1962.  This amendment 
was effected with retrospective effect from 13th of January, 1962.  Section 2 of the 
Ordinance provides that the following new section shall be inserted, and shall be 
deemed to have been always so inserted, as Section 7: 
“7. 
Savings.  For the removal of doubts it is herby 
declared that omission by this Ordinance of sub-sections 
(2) and (4) of Section 20 and sub-sections (1), (1A) and 
2) of Section 21 of the said Act shall not affect any case 
or proceedings the record of which called for under sub-
section (2) of Section 20 of the said Act, or any review 
proceeding under sub-section (1) of Section 21 thereof, 
which 
was 
pending 
immediately 
before 
the 
commencement of this Ordinance: 
 
Provided that no revision or review under any of 
the provisions omitted by this Ordinance shall lie against 
any order made in any such case or proceedings.”  
 
17. 
It will be recollected that, as narrated hereinabove, on 9th January, 1962 the 
Appellant had sought to have the matter re-opened.  This was before the critical date 
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namely 13th January, 1962.  But this fact is not sufficient to enable the Appellant to 
take advantage of the amendment.  The further question which arises is at what point 
of time did the Settlement authorities actually take cognizance of the matter and 
decide to re-open the same.  In relation to this the record is silent.  All that we have 
on the record is a letter dated 29.1.1962 sent to the Additional Settlement 
Commissioner in terms of which it is stated that the Chief Settlement Commissioner 
has ordered that he should re-examine the case and pass the necessary orders after 
hearing the parties under intimation to this office. Thus it is manifest that the Chief 
Settlement Commissioner had passed an order prior to the said date.  This order was 
obviously passed at some point of time between 9th January, 1962 and 29th January, 
1962.   However, this earlier order is not part the of record before us.  In these 
circumstances, since it was the duty of the Respondent, which was seeking to rely on 
this for the first time, and that too at a belated stage, who should have made an 
endeavour to have the entire record brought before the court.  Since he failed to do 
there is no factual foundation on which we can proceed to decide the point in the 
Respondent’s favour.  Accordingly this finding of the learned division bench falls to 
the ground.  
18. 
It is necessary to point out, however, that over and above the above aspect of 
the matter, there is an additional fact of the utmost importance.  As pointed out 
earlier the Respondent only had a Provisional Transfer Order in his favour.  This 
Provisional Order contains the following clause (vi) which is pertinent and is 
reproduced below: 
“(vi) The President shall be entitled to resume the whole 
or any part of the said property if the Central Government 
or any officer authorized by the Central Government in 
this behalf is at any time satisfied and records a decision 
in writing to that effect that the transfer of the said 
property or any other compensation in any form 
whatsoever under the aforesaid Act has been obtained by 
fraud, false representation or concealment of any material 
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fact on the part of the transferee or his predecessor-in-
interest.”  
 
It can be seen that this is an independent power conferred on the Settlement 
Authorities, quite apart from the statutory power of revision.  The Respondent only 
had a provisional title and that also was subject to the above mentioned condition.  It 
necessarily follows that in case the Settlement Department found that he had made 
any false representation, or concealment of a material fact, or fraud, it would be 
entitled to resume the property.   
19. 
Further support to the above is provided by a plethora of case law including 
numerous judgments of this court which state that in case of fraud or 
misrepresentation an inherent power vests in the Settlement Authorities to recall the 
impugned order.  Indeed the learned division bench had itself recognized the 
existence of this power and specifically held that even independently of the power of 
revision this was an inherent power of the Settlement Department.  The relevant 
passage of the judgment of the learned division bench is reproduced below: 
“The only ground and basis of reopening of the matter 
has been where the transfer had been procured and was 
result of fraud and misrepresentation.  That is the import 
of the Chief Settlement Commissioner, Lahore vs. Raja 
Muhammad Fazal Khan and others (PLD 1975 SC 331). 
In the instant case however there is not even any 
allegation or fraud or misrepresentation addressed to the 
Appellant (i.e. the Respondent herein) in seeking the 
transfer of the property not to say of any material.”   
 
20. 
We confess that we have read the above finding with great surprise.  In fact, 
right from the beginning the only contention before the Settlement Authorities was 
the misrepresentation, or fraud, on the basis of which the Respondent had claimed 
two properties instead of one.  There was no other matter before the court.  The 
learned division bench has correctly stated the applicable principle of law but 
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thereafter has committed an error which is manifest on the face of the record.  In 
these circumstances this finding can also not be upheld.    
21. 
At this point of time it is necessary to deal with one additional point which has 
been raised before us on behalf of the Respondent. We noticed that the Respondent’s 
counsel it difficult to justify the judgment of the learned division bench on the merits.  
Indeed, insofar as the judgment of the learned single bench of the High Court is 
concerned, he did not advance any proposition whatsoever to impugn its validity.  
He, however, adopted another stance, namely, to call in question the title of the 
Appellant.  The main thrust of his submission was that the Appellant was only 
entitled to an area of 80 kanals and not 96 kanals, one marla 12 sq. feet.  This 
contention was based by him on a map which is on the record as well as two 
additional documents filed by him.  While we are going to examine his submission in 
some depth in what follows it is however necessary to clarify one point right at the 
inception.   
22. 
The only question before the Settlement Authorities related to the title of the 
Respondent to the plot bearing No.85/A(ii) ad-measuring 1½ kanals.  He claimed that 
he was entitled both to this plot (originally owned by Mr. Jodha Mal which is located 
on Khasra No.1047) as well as the smaller plot bearing No.85/A(i) originally owned 
by Mr. Sobti admeasuring about 12 kanals which is located on Khasra No.1048.  In 
case this point is decided against him the matter comes to an end insofar as he is 
concerned.  He has no locus standi to challenge the title or entitlement of Mr. D.B. 
Avari.  Since we have already come to the conclusion that he has manifestly failed to 
establish his title in relation thereto his interest in the matter comes to a definitive 
end.   He cannot be heard to challenge the title of Mr. D.B. Avari, which stems from 
an independent order passed by the Settlement Authorities in his favour, and which 
has never been challenged by anyone upto now despite the lapse of half a century. 
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Having said that, since the matter is before us, we turn to examine the submissions 
which have been made on his behalf on the merits.   
23. 
We may note, at the inception, that the heart of the problem in cases such as 
this stems from the fact that no title deeds are available.  This is not uncommon in 
cases of evacuee property.  The owners had fled, presumably carrying with them 
their documents of title or else they were misplaced.  We have to therefore proceed 
on the basis of whatever material there is available on the record.  The map which 
has been referred to above shows the area as being 9.92 acres (approximately equal 
to 80 kanals).  It, however, also mentions the Khasra No. as being 1047 which is 
shown to be 96 kanals, 1 marla and 12 sq. feet.  Thus the map gives two figures, 9.92 
acres and 96 kanals, 1 marla and 12. Sq. feet.  The Respondent’s counsel’s  
contention however is that there are 600 sq. yards in a 1  kanal and if we convert 9.92 
acres the result is 80 kanals and hence the Appellant is only entitled to this amount 
and not 96.1.12 sq. feet.  There is more than one error in this contention.  The first 
question is how many sqare yards are there in one kanal.  The answer is that it 
depends on the location of the land. In agricultural areas there are not 600 but 605 sq. 
yards in one kanal but in Lahore a different practice is followed and there are 500 sq. 
yards in 1 kanal.  There was no dispute on the point, in the entire proceedings before 
the Settlement Authorities, that apart from the 1 ½ kanals of Khasra No.1047, the rest 
of the area was the entitlement of Mr. Avari and if the 1 ½ kanals are added the total 
area of Khasra 1047 comes to 96 kanals, 1 marla, 12 sq. feet and not 80 kanals.  If we 
convert 9.92 acres into sq. yards we get the figure of 48,012 sq. yards and if we 
divide this by 500 we get 96.0256 kanals or 96 kanals, 1 marla 12 sq. feet which is 
precisely the basis on which the Settlement Authorities have proceeded in the case, 
without any objection from the Respondent or anyone else upto now.  Thus the entire 
argument is based on a misconception and, as we will observe in a later part of this 
judgement, the Settlement Patwari’s report, on which the Respondent had placed 
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prime reliance before the Additional Settlement Commissioner and which he has 
relied on before us as an additional document comes to exactly the same conclusion.  
It is only if we proceed on the basis of 1 kanal equals 605 sq. yards (which is 
inapplicable) that we get a figure of not 80 kanals, but a little over 79 kanals.  The 
argument therefore has to be rejected.  
24. 
Two other documents have been filed by the Respondent and we will now 
consider them. The first is a copy of the Lahore Municipal Corporation Provisional 
Assessment List which reveals that Nedous Hotel has been given the number SE 19 
R-87 for purposes of identification (i.e. in relation to imposition of municipal tax) 
which has been assessed at Rs.34,193/-.  It describes the area of the site as being 80 
kanals.  The second is a copy of the Settlement  patwari’s report on which principal 
reliance was placed by the Respondent before the Settlement Department and was 
once again relied upon before  us.    
25. 
As is obvious from the above the Provisional Assessment List on which 
reliance has been placed relates to tax assessment.  For this purpose the Municipality 
maintains its records of property.  In fact, there are a number of additional documents 
also which are relevant in this context.  By way of illustration we may refer to the 
Lahore Municipal Corporation assessment for the year 1946 in relation to the 
property bearing SE-19-R-85 A(i).  This is the property owned by Mr. K.S. Sobti as 
stated in the document.  This is the property on which the petrol pump is located 
which measures approximately 12 marlas.  The annual value for purpose of tax 
payment has been assessed at Rs.108.  This is the property which covers Khasra 
No.1048.  Similarly, we also have the Lahore Municipal Corporation assessment for 
the same year in relation to the adjoining property, namely SE-19-R-85 A(ii) on 
Khasra No.1047.  This is the property which admeasures approximately 1 ½ kanals.  
The name of the owner is disclosed in the assessment form as being R.B.L. Sarain 
Das for the owner Jodha Mall Kuthiala.  This property has been assessed at Rs.720 
C.A.1137 of 2008.doc 
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for tax purposes.  This is of course the property which had been illegally allocated to 
the Respondent and which allotment was subsequently cancelled by the Settlement 
Department.  The occupier of this property, it is interesting to note, is shown as Mr. 
Sobti.  We also have the Lahore Municipal Corporation Preliminary Assessment List 
for the year 1946, which shows the owner to be Mr. Jodha Mall with as many as five 
different names given by way of occupiers presumably from time to time.   The 
names of the occupiers are reproduced below: 
1. 
M/S Azam & Sons 2 Halls 2 Small rooms 1 
gallery 1 bath. 
2. 
J.C. Shamdia Locked 
3. 
Post office 3 R + IV Ib1 
4. 
Mr. Rafiullah 4R 1K IV 1F (Haroons) 
5. 
Ch. Murtaza Sahib 5R 1K 1B 1F 
 
26. 
It is interesting to note from the above that at one time even the Post Office 
was there.  The Final Assessment List for the year shows the following names as 
occupiers: 
1. 
Remington & Co. 
2. 
J.C. Bendhier 
3. 
Post Office 
 
27. 
Thus although Mr. Jodha Mal remained the owner throughout the occupiers of 
some of the land kept changing from time to time.  Taking all these documents 
together we can now get a reasonably good idea as to how the confusion may have  
arisen.  The primary interest of the Lahore Municipal Corporation was to carry out an 
assessment for purposes of levying municipal tax.  It was never to determine the 
question of title, which it was not entitled to do.  In the absence of the title deeds for 
this purpose we have to go to the Revenue records. As is obvious from the above, 
Mr. Jodha Mal used to allow various individuals/entities to occupy part of the 
Nedous Hotel lands which were not for the time being required by the Hotel.  
C.A.1137 of 2008.doc 
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28. 
What emerges from a perusal of the documents is that the number given for 
purposes of identification of the property (as stated therein) is that number which has 
been given by the Lahore Municipal Corporation and this number has been given for 
purposes of tax assessment.  As we have already commented, the title deeds however 
are missing since it was evacuee property.  The question therefore arises what exactly 
was the title of the property owner and what area did it extend to.  It is 
understandable that when a hotel is being assessed for tax purposes the Municipality 
would simply proceed on the number given by it and also focus essentially on the 
hotel building which is really the important building for purposes of tax assessment.  
Now it seems that Mr. Jodha Mall was in the habit of renting out parts of his property 
to various people or entities or at least to allow them to occupy it temporarily.  The 
area owned by him which was on Khasra No.1047 was 96 kanals, one marla and 12 
sq. feet.   Out of this area he had, for example, given Mr. Sobti, 1 ½ kanals to be used 
for purposes of a service station.  Similarly he had apparently allowed other persons 
also to utilize parts of the property.  Thus it is possible that these parts of the land 
could easily and conveniently have been disregarded by the Municipality for 
purposes of tax assessment.  The Municipal Tax record is not really the critically 
important document in order to establish title.  For that we have to look to the 
Revenue records which fortunately are available with us.  There is on the record 
available a copy of the Revenue records for the pre-partition period.  The  record 
relating to the year 1946 is decisive in the matter. This shows an entry in urdu for 
what is described as (ﺎﮐوﺪـــﻧ) Hotel (i.e. Nedous Hotel) and the area shown is not 80 
kanals but 96 kanals, one marla and 12 sq. feet.  Since this goes back to the pre-1947 
period, when there was no question of any evacuee property,  this was the single 
strongest piece of evidence in relation to the title and ownership. It is important to 
note that this indicates not only the ownership of Mr. Jodha Mall but also that this 
entire area had been assigned and used for purposes of the hotel and hotel alone.  
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Thus it can logically be inferred that the area of the hotel was 96 kanals, one marlas 
and 12 sq. ft.  which corroborates our earlier conclusion.  This is the reason why the 
official map gives the area as 9.92 acres and also specifies 96 kanals, 1 marla, 12 sq. 
feet which exactly correspond to each other on the basis that one kanal equals 500 sq. 
yards.  
29. 
The above record is further supported by the documentary evidence which is 
on the record.  It needs to be borne in mind that since Nedous hotel was a well known 
hotel occupying a large area of land  the Settlement Department exercised great care 
for and in relation to the auction.  The auction notice states not merely that the 
auction would be conducted by the Additional Settlement Commissioner, Lahore, but 
the Settlement Commissioner himself would preside over the proceedings.  Pursuant 
to the auction having taken place in which Mr. Avari was the highest bidder, (and it 
is important to note that no allegations have been made for and in relation to the 
manner in which the auction was conducted) initially a Provisional Transfer Order 
was issued in his favour on 29.1.1962.  This Provisional Transfer Order contains the 
identical clause (vi) which is to be found in the title deed of the Respondent and 
states that if it is found that any fraud, misrepresentation or concealment has taken 
place the Government would be entitled to resume the property.  However, no such 
fraud was either alleged by anyone or found by the Settlement Department to have 
taken place.  Thus what is important to note, is that when the final transfer order was 
issued namely, the Permanent Transfer Certificate, which shows specifically the area 
of the property as being 96 kanals, one marla and 12 sq. feet on 6.10.1964, clause 
(vi), which had already served its purpose, was omitted in the normal course by the 
Government.  This was a final title deed and accordingly conferred a permanent title 
on him in the normal course of events.  It obviously could not grant a qualified or 
conditional title.  That would be against the clear policy of the law relating to 
immovable property.  
C.A.1137 of 2008.doc 
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30. 
Not merely do the above facts speak for themselves, but there is in addition an 
extremely important circumstance which is further corroborative of the view 
expressed in the above.  When the matter was re-opened the Additional Settlement 
Commissioner re-examined all the facts pertaining not merely to the title of the 
Respondent but also of Mr. Avari from the very inception and passed a very lengthy 
and detailed order which sets out at length the arguments advanced on behalf of the 
Respondents for purposes of examination thereof.  He recorded the fact that the 
property auctioned in favour of Mr. Avari spread over Khasra No.1047 which was 
transferred to him on payment of the sum of Rs.1,21,00,000 and the title was duly 
confirmed by the issuance of the Permanent Transfer Certificate.   He described the 
boundaries of the plot which are consistent with the fact that it extends to the whole 
of Khasra No.1047.  It had already been noted by the Settlement Department by 
means of Office Memorandum dated 13.6.1962 that Mr. D.B. Avari had been handed 
over possession of the entire area sold to him except for the small segment which was 
in the possession of the Respondent.  Mr. Avari’s  contention as advanced by his 
counsel, was that he had admittedly not been handed over possession of this small 
portion measuring 1½ kanals which was admittedly located on Khasra No.1047 
which belonged to Mr. Jodha Mall.  Accordingly his contention was that, being an 
integral part of the big mansion,  the Respondent had  no legal right or title thereto.   
31. 
However, since the Respondent was adamant in insisting that he was entitled 
to the 1 ½ kanal plot the Additional Settlement Commissioner had to decide the issue 
whether or not a multiple transfer of the same property had taken place i.e. to Mr. 
Avari, as being the successful auction purchaser of Nedous Hotel spread over Khasra 
No.1047 on the one hand, and the Respondent on the other hand, who was in physical 
possession of 1½ kanals of that very khasra number. He accordingly called for the 
entire record and re-examined the same. The following passage from his order speaks 
for itself: “By going into the facts of the case as presented by both the learned 
C.A.1137 of 2008.doc 
-: 20 :-
counsels and those available on the record of the case I am of the view that there has 
been a multiple transfer of the same property in favour of Mr. D.B. Avari  auction 
purchaser on the one hand and M/s. Shahnawaz Service Limited transferee under 
Settlement Scheme No.1 on the other.  This point is established from a reference to 
the plan of the premises known as Park Luxury Hotel wherein the segment at present 
in occupation of Shahnawaz Service Station Limited is shown included  the premises 
so exhibited on the plan were disposed of to Mr. D.B. Avari through auction since 
finalized by way of issue of a Permanent Transfer Certificate.  Auction of the 
property has without doubt  been as that of a big mansion. The arguments by the 
learned counsel for Mr. D.B. Avari in this behalf that no part of the property since 
treated as big mansion was transferrable to third person unless of course as decided 
by the CS and RC do carry weight.”  Thus, it is clear, that the Settlement authorities 
examined the official plan of the premises on the basis of which the auction was held 
before concluding the matter in favour of Mr. Avari. 
32. 
The Additional Settlement Commissioner, in view of the importance of the 
case, did not however, decide the matter merely on the above basis. He decided to set 
up a team of five dealing persons as is revealed by  another extract from the said 
order which is reproduced below: 
“As far as the point whether or not the said segment 
which is now in suit did form part of the premises sold in 
favour of Mr. D.B. Avari,  the plan as referred to above, 
has also been examined vis a viz the position obtaining at 
site. This examination as stated earlier, necessitated by a 
request by Mr. D.B. Avari for delivery of possession of 
the premises transferred to them was made through the 
technical assistance of the Land Acquisition and Control 
Officer, a Naib Tehsildar, a Revenue Patwari, and a 
Revenue Qaungo s\aided further by the Settlement 
Patwari. As per his report dated 27.5.1963 actual 
measurement of the total area of Khasra No. 1047 in 
relation to the plan thereof which plan in turn was the 
subject matter of auction, was carried out at site and as a 
result of which an area of 1 Kanal and 2 marlas of 
Khasra No. 1047 was found in occupation of M/S 
Shahnawaz Service station Ltd.”  [Emphasis added] 
C.A.1137 of 2008.doc 
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33. 
  In our opinion these findings are conclusive in establishing what had actually 
happened.  However, there is additional material available as well which further 
strengthens our conclusion.   
34. 
When the case went up in appeal before the Settlement Commissioner the 
above findings were upheld.  What is interesting to note is that the Respondent 
counsel’s contention was that Mr. Avari was entitled to 96 kanals, 1 marla and 12 sq. 
feet and that he already had possession of the same as a perusal of the following 
passage of the order of Settlement Commissioner reveals: 
“The counsel for the petitioner (i.e. the present 
Respondent) further asserted that a total area of 96 
kanals, one marla and 12 sq. feet were promised to 
Respondent by sale and that according to the documents 
produced before the Additional Settlement Commissioner, 
it was proved beyond doubt that Respondent enjoyed full 
possession of 96 kanals, one marlas and 12 sq. feet.”   
 
This then was the Respondent’s case. He cannot now be allowed to radically alter it. 
35. 
After considering the arguments advanced on behalf of both parties the 
Settlement Commissioner decided that the critical point was the entitlement of the 
Respondent –  whether he had obtained one property or two, and since it had been 
established that there was no doubt about the fact that his legal entitlement only 
extended to one property hence the following finding was given:  “It has been rightly 
held by the lower court that the Appellant is the transferee of two properties and that 
the portion of property No.SE-19-R-87 purchased by the Respondent in open auction 
had also been transferred to the Appellant by the Deputy Settlement Commissioner in 
an illegal manner.  The appeal has no force and is dismissed herewith.”   
36. 
Thus it can be seen that the Respondent signally failed in order to establish his 
entitlement and the case was decided against him accordingly.  This was in fact the 
major question before us.  Thereafter the Respondent sought to challenge the 
concurrent findings of fact before a learned single judge of the Lahore High Court.  
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This has already been discussed by us at some length, and as noted above, the 
Respondent failed on an additional point as well that under the law in no 
circumstances whatsoever was he entitled to a transfer since he had claimed the 
transfer as a “shop” whereas in fact on the basis of his own admission it was clear it 
was an open plot of land.  The finding of the Settlement Department on the facts was 
reiterated by the learned single judge.   
37. 
We now turn to the final document in the case which we have not examined so 
far.  As stated earlier, the Respondent has filed before us a copy of the Settlement 
Patwari’s report which he had relied on earlier unsuccessfully before the Additional 
Settlement Commissioner.  This is an extremely document which conclusively 
demolishes his case.  In the earlier part of this report he suggests that Mr. Avari has 
already been given possession of 96 kanals, 17 marls and then proceeds to give his 
assessment of the matter.  The relevant passage (in urdu) is reproduced below 
alongwith an English translation:  
(X-7) 
 
 
It has been found from the new record that the area of Khasra No 1047 is 96-1-12 and as per 
the above measurement it is 96-17 (96 Kanals 17 marlas)  i.e. 15-213 is in excess. 
Workshop’s khasra may be different because this workshop is connected with Khasra 1048 
since earlier. Area covered by the Hotel is left at 96-1-12. Therefore, it is submitted that 
from the above measurement it is proved that the total area of the Hotel is left at 96-1-12 
which is in possession of the Hotel and it is this area which was auctioned by the 
Government. (Dated 5-6-1962). 
 
 
 
 
 
 
 
 
 
 
 
Shaukat Ali Patwari 
 
 
 
 
 
 
 
Lahore. 
C.A.1137 of 2008.doc 
-: 23 :-
38. 
Bearing in mind all the above facts and circumstances certain points are clear 
beyond any doubt:  Firstly, insofar as the legal entitlement of the Respondent is 
concerned, this is primarily a question of law and there can be little doubt about the 
fact that he had illegally obtained two plots of land instead of one and hence the 
Settlement Department was entitled to cancel one of the two plots while the leaving 
the other in his possession and ownership.  In fact, since there was only one order of 
the Deputy Settlement Commissioner which transferred both to the Respondent at 
one and the same time it was possible for the department even to have cancelled both 
at the same time but, we think, viewing everything in the proper perspective, that the 
department acted fairly and equitably in leaving title of one plot to him and 
restricting the cancellation to the other plot. Secondly, the question of Mr. Avari’s 
entitlement really did not arise per se.  The main thrust of the argument of the 
Respondent was in all prior stages upto the hearing of this appeal, that Mr. Avari 
already had the full 96 kanals, one marla and 12 sq. feet and hence was not entitled to 
the additional 1½ kanals which was in his occupation.  This question of Mr. Avari’s 
entitlement being limited to 80 kanals were never raised by him either before the 
Settlement Department or before the learned single judge and nor is it borne out by a 
consideration of all the facts and circumstances.   
39. 
We have already commented on the fact that the Respondent has no locus 
standi to independently challenge the entitlement of Mr. Avari. We have, on our own, 
examined all the record in order to arrive at the conclusion which has been set out in 
the above.  It may, however, be added that in any case it would be really 
extraordinary if a title which has been unchallenged and is supported by a Permanent 
Transfer Certificate issued more than half a century ago should now be allowed to be 
re-opened for the first time and that too in appeal on the allegations made by a person 
who has committed fraud.  This is really something which we do not think would be 
proper or appropriate.  The policy of the settlement law, has been to not to allow 
C.A.1137 of 2008.doc 
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questions of title, involving fatal disputes to be re-opened ever since the 1960s. This 
is the reason that revisional powers were taken away. In the present case the 
Settlement Department has also not challenged the title at any stage. 
In the circumstances the appeal is allowed. 
 
 
 
 
JUDGE 
 
 
JUDGE 
 
 
JUDGE 
Announced in open Court 
on 16.12.2015 at Islamabad 
Not Approved For Reporting 
Waqas Naseer/*