1985 PLP 1261 (SCMR)

Ch. Muhammad Abdul Wahid, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioners Nemo for Respondents. Date of hearing: 19th August, 1984. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment dated 15‑10‑1980 of the Lahore High Court, whereby the petitioners Intra‑Court Appeal arising out of an urban Settlement case was dismissed.

2. According to the facts narrated by the learned counsel Asghar Ali respondent was in possession of Unit No.9 in a composite property which was known as old Sabzi Mandi. Muhammad Ashraf a brother of the petitioner claimed to be in possession of a smaller Unit No. 9‑A which is adjacent to aforesaid Unit No.9. Asghar Ali being a non‑claimant obtained the transfer in his favour on an N . C . H . Form of Unit No.9 as also 9‑A. The D.S.C. presumably treated them as one transferable units in an otherwise composite property. Ashraf's appeal and revision were dismissed in 1962 and 1965, respectively and thus the question of transfer of Unit No. 9‑A became a closed matter because no one challenged its transfer to Asghar Ali any further. However, in an independent round of litigation Muhammad Riaz husband of the present petitioner filed an L.H. Form for Unit No. 9‑A in 1966 and on his death this application for transfer was pursued by the petitioner and other successors‑in‑interest of Muhammad Riaz. They all claimed that Ashraf was not in possession of Unit 9‑A. On their form a D.S.C. with the permission of a Settlement Commissioner opened the case regarding transfer of 9‑A. And without going into the formalities of appeal or revision issued a fresh order of transfer in favour of the petitioner in 1975. Asghar 'Ali file a writ petition challenging the transfer in favour of the petitioner which was allowed on 8‑7‑1980. And their challenge in Intra‑Court Appeal having failed on 15‑10‑1980 they have now sought leave to appeal.

3. The petitioners if on their own assertion were in possession of 'the property in question as against the plea of their close relation Muhammad Ashraf, they had a right and opportunity of filing an appeal and revision against the transfer of the disputed portion in favour of Asghar Ali. They never challenged it. Be that as it may the fact remains that appeal and revision being available the Intra‑Court appeal was not competent. On this score alone the appeal was liable to be dismissed. And thus there is no justification for interference by this Court. However, we having examined the merits of the case and did not find any justification for interference. The property in dispute stood finally transferred in favour of Asghar Ali respondent more than a decade prior to its transfer by the D.S.C. in favour of the petitioners. It was not available property, therefore, the transfer made by the D . S . C . could not be upheld. The approach of the High Court being unexceptionable. This petition fails and is accordingly dismissed. M . I . Petition dismissed.