1985 PLP 1278 (SCMR)

Jari Uallh Khan, Advocate Supreme Court for Petitioners. Maqbool Sadiq, Advocate Supreme Court, S.M. Naseem, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Respondents Nos. 1 and

2. Date of hearing: 21st August, 1984. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment, dated 29‑11‑1980 of the Lahore High Court; whereby a Letters Patent Appeal which had arisen out of an urban settlement case and which was filed by the respondents Nos. 1 and 2. was allowed.

2. Ibrahim the predecessor‑in‑interest of the petitioner was transferred the house in dispute on the basis of the possession of his son who was an allottee. The respondents who were also in possession of a part of the property filed C.H. Form but without any application of mind, it was rejected. Their appeal before the Additional Settlement Commissioner was dismissed as time‑barred. And their revision was dismissed mainly on the ground that other property had been transferred to some other members of the respondent's family. They challenged the orders of the Settlement Authorities before the High Court in its Constitutional jurisdiction. The petition was initially dismissed by a learned Single Judge. On their Intra‑Court Appeal; they were held entitled to the transfer of the property. But the learned Judges keeping in view the basic need for settlement of displaced persons granted relief to the respondents only with regard to the portion in their possession. The petitioners successors‑in‑interest of Ibrahim who were the original transferees of the entire house have now sought leave to appeal.

3. Learned counsel has vehemently contended that the High Court has exceeded its jurisdiction by dividing the property into two parts on the basis of possession of both the parties. We do not agree with him. In reality instead of transferring the entire property to the respondents which could in law be transferred in their favour the learned Judges in the High Court declined to grant total relief in exercise of Constitutional jurisdiction which admittedly is discretionary, Therefore in strict sense of the term the authority which vests in the Settlement functionaries for "division" of evacuee property has not beer exercised by the High Court.

4. Learned counsel also contended that the Settlement Commissioner was right in rejecting the respondent's claim to the transfer of the property in dispute because at least three other properties were transferred to the same family. When questioned as to whether those transfers were barred under any law the learned counsel replied in the negative. That being so the ground on which the Settlement Commissioner excluded the respondents was not available in law.

5. As regards competition between the parties it suffices to observes that while the petitioner's side were indirect claimant the respondents were direct claimants for the transfer of the same property. The preference under the relevant law was obviously to be given to the respondents. But the High Court for good reasons declined to grant the relief in the discretionary jurisdiction to the respondents to the extent of the property they were not in possession.

6. The last argument of the learned counsel for the petitioners that the appeal of the respondents before the Additional Settlement Commissioner was time‑barred is also without force because the Settlement Commissioner while disposing of the revision petition gave decision on merits and did not choose to dismiss the same on the ground of the bar of limitation at the lower appellate stage.

7. None of the arguments raised by the learned counsel‑has any force. This petition is accordingly dismissed. M.I Petition dismissed