1973 PLP 192 (SCMR)

Nemo for Respondents. Date of hearing : 13th March 1973. ANWARUL HAQ, J.‑This petition for special leave to appeal is directed against an order made by a learned Single Judge of the Lahore High Court on the 24th of October 1972, whereby a constitution petition filed by the petitioners in respect of the transfer of an evacuee house bearing No. 7178 situate in Ward No. 6/M, Mohallah Aghapura in Multan Town, was dismissed. The relevant facts are that the house in dispute has been in the possession of the petitioners as well as respondent No. 3, Muhammad Abdullah. The petitioners allege that they sent N. C. H. forms for the transfer of y the house by post to the‑settle ment authorities, but the forms are not available on the depart mental record. Respondent No. 3, a claimant displaced person, applied on form C H. At one time the house was placed on the auction list, but it was deleted from that list at the instance of the respondent, and the case was reminded by the Additional Settle ment Commissioner to the Deputy Settlement Commissioner for a fresh decision. These remand ‑ proceedings led to prolonged litigation between the parties regarding transfer of the different portions occupied by the parties. The Deputy Settlement Com missioner by his order dated the 8th of June 1962, transferred to the respondent No. 3 only the portion occupied by him, and deferred the matter of the transfer of the other portions. Claim ing the entire house, the respondent Abdullah filed an appeal which was partly accepted by the Additional Settlement Commis sioner‑by his order dated 21‑9‑1962 and certain other portions of the house were also transferred to him. At the same time some portions were given to the petitioners Abdul Haque and Rehmat Ullah. Both the parties were dissatisfied with the appellate order of the learned Additional Settlement Commissioner, and accordingly they filed revision petitions which were disposed of by the learned Settlement Commissioner by a single order dated the 12th of January 1963. This officer held that in the first place it was difficult to accept the assertion of the present petitioners that they had submitted N. C. H. forms for the transfer of their por tions, as these forms were not available on the record and the postal receipts held by the petitioners were not sufficient proof of the submission of the forms. In tire second place, the learned Settlement Commissioner expressed the view that on a perusal of the plan of the house he was convinced that it was indivisible as it had only one exit. Such being the case, he concluded that the respondent Abdullah being a claimant, had to take preference over the petitioners who were non‑claimants or locals. As a result of these findings the entire house was transferred to Muhammad Abdullah. The petitioners challenged this order in the Lahore High Court, but failed. The High Court has upheld the view taken by the learned Settlement Commissioner regarding the indivisibility of the house, and also regarding the non‑submission of the applica tion forms by the petitioners. It is submitted by the learned counsel for the petitioners that the house in dispute having been held to be divisible by the Deputy Settlement Commissioner and the additional Settlement Commissioner, the learned Settlement Commissioner could not hold otherwise as he did not inspect the spot and merely relied on a plan of the property. It is next submitted that the High Court as well as the Settlement Commissioner are in error in holding that the petitioners had not filed any transfer forms for the portions in their possession. There is no merit in these submissions. Even if it be held that the petitioners had submitted applications for the transfer of their respective portions of the house, the house having been held to be indivisible by the learned Settlement Commissioner, the respondent Muhammad Abdullah, as a claimant, was rightly given ,4 preference over the petitioners who are non‑claimants, if not locals. The view taken by the Deputy Settlement Commissioner and the Additional Settlement Commissioner on the question of the divisibility of the house was open to correction in revision by the learned Settlement Commissioner. It was not necessary for this officer to pay a personal visit to the spot, if he could decide the question of divisibility by examining the plan of the property. g He has given cogent reasons for holding the property to be indivisible namely, that it has only one exit. For the foregoing reasons the petition fails and is hereby dismissed. Petition dismissed.