1983 PLP 1139 (SCMR)

SHAFIUR RAHMAN, 1.‑The petitioners who are the successors‑in‑interest of a brother of the predecessor‑in‑interest of the contesting respondents seek leave to appeal against the judgment of the Lahore High Court, dated 19th June, 1982 whereby their constitutional petition was dismissed. Property No. 13, Fane Road, Lahore was the subject‑matter at first of a triangular contest between one Amjad Hussain, Abdul Jabbar and Shah Rahman Ansari, the predecessor‑in‑interest of the Contesting respondents. Ultimately two portions of this property were settled on Amjad Hussain and Abdul Jabbar as per compromise between these contestants and those two portions are not in dispute. The portion which was transferred to Shah Rehman Ansari became the subject‑matter of constitutional petition as it was transferred to Shah Rehman Ansari exclusively excluding altogether his mother, Ummatul Aisha. The petitioners' claim as successors‑in‑interest of Mst. Ummatul Aisha because if she is held to be transferee then the property would devolve on her two sons after her death namely, Shah Rahman Ansari and Irfan Ansari, both of whom are now dead. The petitioners' claim is based on two grounds It is stated that on 4‑1‑1960. Shah Rahman Ansari by writing in his own hand, though unsigned, had given up his rights in this portion of the property in favour of his mother and having so surrendered or withdrawn be could not re‑enter the arena and success fully claim the transfer of this portion. The other ground taken up was that Mst. Ummatul Aisha was a claimant while Shah Rahman Ansari was a non‑claimant. In case of contest and competition between the two in respect of the same property Mst. Ummatul Aisha as a claimant should have received preference over Shah Rehman. The learned Judge in the High Court examined the document which was stated to be in the handwriting of Shah Rahman Ansari. Its execution, genuineness and existence itself was doubted and it was rejected. The other ground also did not prevail and the entitlement of Shah Rahman Ansari was held to be superior to that of his mother in respect of this property. After hearing the learned counsel for the petitioners we find that the surrender document cannot be resurrected because a categorical finding of fact has been recorded at all levels that it is neither genuine nor effective or binding. Its execution remained unestablished. As regards the second which is a legal ground, it has been established on the record that Shah Rahman Ansari was the allottee of the portion in his possession and his mother was claiming possession of it under him and not independently of him. In view of such a contest between the allottee -non‑claimant under whom a claimant non‑allottee is holding possession the B preference would be given to the person in undisputed possession and that would be the allottee under whom the claimant enjoys the possession of the property. As against the outsider the situation may be different and the results may also be different because the person deriving possession would not be in contest with the person from whom he admittedly derives possession. We find that the view taken by the statement authority and the High Court is not open to any exception or interference. Hence leave to appeal is refused. S. Q. Leave refused.