1989 PLP 400 (SCMR)

Saleem Ahmad Malik, Advocate‑on‑Record for Respondents (in both petitions). Date of hearing: 6th November, 1988. MUHAMMAD HALEEM, CJ.‑‑The petitioners seek leave to appeal against the common judgment of the Lahore High Court dated 24‑11‑1986 passed in I.CA. Nos. 50 and 51 of 1985 against the order dated 6‑2‑1985 passed in writ petitions Nos. 235‑R of 1981 and 261‑R of 1983 by which the order of the Deputy Settlement Commissioner dated 15th of May, 1980, was held to be without lawful authority and of no legal effect, . The 'dispute iii these petitions relates to three shops bearing Nos. 1/1531, 1/1532 and 1/1533, and one house No. 1/11534 comprised in one building, situate in Sialkot City. Shop No. 1/1533 was transferred to Abdul Aziz who sold it to the petitioner No. 1 in civil petition for leave to appeal No. 208 of 1987. House No. 1/1534 was transferred to Barkatullah, the predecessor interest of petitioners 3 to

6. Shops Nos. 1/1531 and 1/1532 were auctioned and purchased by Sh. Anwar Ali, the predecessor‑in‑interest of petitioners 2 (i to v). Permanent Transfer Deeds were also issued to the transferees. However, one Muhammad Sharif moved an application in 1954 under section 18 of Ordinance XV of 1949 for declaration of the property as non‑evacuee property on the basis of an agreement to sell dated 25‑11‑1947 executed by Chuni Lal Sethi at Nairobi (East Africa) in favour of Muhammad Sharif and Allah Rakha. Abdul Aziz an Barkatullah were made parties in this application. The number of the house the application was given as B‑1‑165‑49 although in the. agreement no such number was shown, but the Mohallah was mentioned and so also the houses which bounded the property. The Deputy Custodian by order, dated 27th July, 1961, rejected the application. Aggrieved by it an appeal was filed before the Additional Custodian who also dismissed it on 1i!h ;,f July, 1962. However, the revision against this order succeeded as it was allowed on 28‑11‑1962, and it was held in the order that the seller was not an evacuee as he resided in Nairobi and could sell the property. Aggrieved by this order a writ petition No. 29 of 1963 was filed to challenge it, which was also dismissed on 14‑5‑1970. The Letters Patent Appeal against this order met the same fate as it was dismissed on 28‑5‑1980. Leave was sought from this Court through Civil Petition for Leave to Appeal No. 225 of 1970, but it was refused by order dated 8‑12‑1970. The contesting respondents, however, took no step to implement the order. It, however, appears that Sh. Anwar Ali raised the question of identity of the property as he had to pay the price of it before the Deputy Settlement Commissioner who by order dated 4‑5‑1973 held it not to be the same property which was transferred to him. Thereafter, the respondents moved an application before the Deputy Settlement Commissioner for an order as to the identity of the property but did not succeed as their application was dismissed on 15‑5‑1980. This order was challenged as afore‑stated. Now the dispute is only in regard to the identity of the property because its number was not mentioned in the agreement and another number was mentioned in the application. However, Abdul Aziz and Barkatullah who were parties in the dispute before the Deputy Custodian did not challenge the identity of the property on the ground that another property existed by that name or as shown bounded in the agreement. The learned counsel in the context of this omission was not able to advance his case further and had to admit that the property in dispute is situate in the same Mohallah. Therefore, the question of identity is far too late to be agitated as the proceedings which commenced were terminated by an order of this Court which finally determined not only that question but also the further question as to the status of the seller as being non‑evacuee. In this context the orders of the Settlement Commissioner dated 4‑5‑1973 and 15‑5‑1980 were illegal as they could not re‑open the issue with regard to the status of the property which held to be non‑evacuee. There is no merit in these petitions which are hereby dismissed. MA.K./M‑643/S Petitions dismissed.