1985 PLP 110 (SCMR)

Art.185(3)

Displaced Persons (Land Settlement) Act (XLVII of 1958), S.14--Leave to appeal--Finding of fact--Dispute as to possession of land--Petitioner after division of property on basis of possession having no locus standi to agitate against transfer of remaining units of property as same was not found to be in his possession-Notwithstanding disclaimer by him, it was found as a fact, that statement of successor-in interest of petitioner that there was a third person who also occupied part of property was made by him--Such finding being that of fact, held, could not be interfered with by Supreme Court--Leave to appeal refused. Subedar Major (Retd.) Fazal Elahi for Petitioner. Nemo for Respondents. gate of hearing: 22nd August, 1984, MUHAMMAD AFZAL ZULLAH, J.-- The judgment of the Lahore High Court,,dated 6-7-1981 whereby a Constitutional petition arising out of a settlement case was dismissed, has been brought under challenge through this petition for leave to appeal. Subedar Major (Rtd.) Fazal Elahi claiming to be the son of the petitioner who has argued the petition as successor-in-interest of the petitioner has been heard in support of the petition. The petitioner admittedly was in possession of a part 'of the Ihata in question. Her son Fazal Elahi according to the settlement record appeared before the Deputy Settlement Commissioner and made a statement that in addition to the present contesting parties namely the petitioner and Muhammad Shafiq respondent there was a third person who also occupied a part of the Ihata. That third person it is further noted in the High Court judgment was Mst. Fatima. The area occupied by Muhammad Shafiq and Mst. Fatima was 3 Marlas while that occupied by the petitioner was slightly more than 5 Marlas. Mst. Fatima it is further noted handed over the possession to Muhammad Shafiq and that is how the contest developed between the present two contesting parties. The Ihata was ultimately divided in accordance with the afore described possession. Mr.Fazal Elahi has pointed out that the P.T.D. having been issued to the petitioner for a larger area it could not have been subsequently reduced; that the statement attributed to him was never made by him; that the so-called portion of Mst. Fatima was actually never in her possession; that it was also to be treated as in possession of the petitioner; and finally that if at all respondent No.1 was entitled to one Marla and four Sarsai which was originally in his possession and to no more area and that the entire remaining area should have gone to the petitioner. It appears to us to be a case of two separate properties although it might have originally formed one Ihata. After the determination of the question of possession of the petitioner on specified area, she would be entitled to claim only that area and not the other area or part thereof which was not in her possession and which would thus constitute another subunit of the property. Notwithstanding the dis claimer by Mr. Fazal Elahi it has been found as a fact that the statement attributed to him in fact was made by him. This Court does not interfere with such a finding of fact. The mere issuance of P.T.D. in the circumstances of this case, if at all it was issued, will not make any difference in so far as the present petition for leave to appeal is concerned, because, the petitioner after the division of the Ihata on' the basis of possession, would have no locus standi in the constitutional writ jurisdiction of the High Court to agitate against the transfer of the remaining unit of the Ihata as it was not found to be in her possession. The argument that Mst. Fatima in reality was not in possession runs counter to the admission made before the Deputy Settle ment Commissioner' which as pointed out earlier having been affirmed by the High Court does not merit interference by this Court. If the petitioner was not in possession of the area, which was with Mst. Fatima, she cannot claim its transfer. It does not make any difference whether the same is then transferred to Muhammad Shafiq respondent or anybody else because the petitioner would have no locus standi to make any challenge in this behalf. After hearing Subedar Major (Retired) Fazal Elahi we do not find any force in this petition and the same is accordingly dismissed. M.Z.M. Petition dismissed.