1976 PLP 526 (SCMR)

WAHEEDUDDIN AHMED, J.‑The dispute between the parties is in respect of property situated in village Dhudial, Tehsil Chakwal. District Jhelum. Its ground floor is used as a shop while the upper portion is used as a residential premises. The number given to the ground floor is 114 and the number given to the residential premises is

115. The petitioner claims to be in possession of the ground floor since partition. Fateh Muhammad claims to be allottee in possession of the upper portion of the Property since 1949. He has also been allotted agricultural land in this village. He submitted an application to the Assistant Settlement Commissioner for the transfer of the entire property in March 1965. The petitioner Muhammad Sher on the 19th July 1968, applied for the transfer of the shop in his possession under amended Scheme No. VII. The Assistant Settlement Commissioner, by order dated the 6th September 1968, transferred both the shop and the residential portion to the petitioner for Rs. 2,

168. The respondent Fatah Muhammad challenged this order in appeal before the Deputy Settlement Commissioner (Land), which was accepted on the 22na June 1970, and the case was remanded to the Assistant Settlement Commis sioner for decision after giving opportunity to the parties to produce evidence. By order dated the 5th August 1971, the Assistant Settlement Commissioner (Land), again transferred the entire property to the petitioner. He held that shop No. 114 and residential premises No. 115 were not separate properties but in fact one property and was indivisible. The respon dent challenged his order in appeal before the Deputy Settlement Commis sioner (Land which was dismissed on the 9th September 1971. The Deputy Settlement Commissioner held that in the case under consideration, vertical division was not possible and, therefore, the entire building was to be transferred to the petitioner on the basis of his prior possession. The matter was t4tinn in revision before the Settlement Commissioner. It was urged before him that the respondent bad filed an application for transfer of the entire property in March 1965, under the Old Scheme No. VII. The learned Settlement Commissioner, relying on an entry of the petition writer came to the conclusion that Fateh Muhammad respondent filed his applica tion on the 11th May 1965, for the transfer of the property in dispute under Old Scheme No. VII. He also found that respondent being a dis placed person was antsded for the transfer of the entire property consisting of residential and commercial portions under the Old Scheme. He further remarked that the petitioner was not entitled to any portion of the property is dispute as he was a local and he had already been transferred another property No. 102 in the same village. The petitioner challenged this order in Writ Petition‑ No. 344/R of 1972 and a learned Single Judge of the High Court has dismissed it in limine, by order dated the 30th May 1972. The petition seeks permission to file an appeal against the said order. Sh. Ghias Muhammad, learned counsel for the petitioner, has contended that the finding of the Settlement Commissioner that the respondent had applied for the property in dispute on the 11th May 1965, should not be accepted as correct because it is not supported by any reliable evidence. According to him. ' no opportunity was given to the petitioner to rebut the evidence produced by the respondent and this question requires considera tion. The contention of the learned counsel has not impressed us. No such point was raised before the High Court. The finding of the Settlement Commissioner being of fact cannot be re‑opened in the special jurisdiction' of this Court. The learned counsel further contended that the petitioner wants any the shoo which is in his possession and does not want the transfer of the residential premises in dispute. According to him, the property was divisible and the shop in dispute could easily be transferred to the petitioner. This contention also has no force. According to sub-para. (3) of paragraph 5, Chapter V of the Old Scheme No. VII :‑-- "The rural building consisting of both residential and business premises shall be transferred to the occupant of the residential premises." Admittedly, the residential portion is in occupation of the respondent and the Settlement Commissioner was perfectly justified in transferring it to him. In our opinion, the High Court has correctly considered ‑all the points in the case and has come to the right conclusion that the property in dispute cannot be transferred to the petitioner. There is no ground to interfere. The petition is dismissed. Petition dismissed.