1985 PLP 615 (SCMR)

M.S.H. QURAISHI, J.‑‑This appeal by leave of the Court arises out of a Settlement matter relating to the transfer of a residential portion in property No.24, Ward No.2, Rail Bazar, Lyallpur. The property consists of two residential portions and seven shops. The residential portion, with which we are concerned, had been allotted in favour of appellant Khurshid Alam in 1947 but later, in 1951, three rooms out of the same were allotted to Barkat Ali (respondent No.2 deceased and represented by his L.Rs.). With the commencement of transfer operations, the Deputy Settlement Commissioner, on 26‑5‑1960, transferred the entire portion to Khurshid Alam on the ground that he was a claimant, a prior allottee and occupant of a major portion as against Barkat Ali who was a non‑claimant. Barkat Ali and Muhammad Yasin (respondent No.3), a transferee of one of the shops, who was claiming the transfer of the Chaubara above that shop, filed appeals but when the same were dismissed on 7‑7‑1964, they filed revision petitions. The Settlement Commissioner, by his order, dated 13‑11‑1965, held that the Chaubaras in possession of Khurshid Alam and Barkat Ali were two separate units and that the Deputy Settlement Commissioner had wrongly held them to be originally one residential portion. He, therefore, divided the same and transferred to Barkat Ali the unit in his possession. He also, by the same order transferred the Chaubara above the shop to Muhammad Yasin alongwith the Khudda close to the shop which had been used, from before the Partition, as stairs for going to the Chaubara, with the direction that Muhammad Yasin would leave a 4 ft. passage for entrance of Barkat Ali. Aggrieved, the appellant unsuccessfully invoked the constitutional jurisdiction of the Lahore High Court. The main reason which prevailed with the learned Single Judge of the High Court for rejecting the constitutional petition on 13‑11‑1973 was that as the property had been divided, the High Court was not competent to declare against that division and that the appellant had no locus standi to challenge the transfer of the unit so divided.

2. Leave was granted to consider whether the appellant being a claimant and a prior allottee was not entitled to the transfer of the, entire portion under the provision of paragraph 1 of the Schedule to' the Displaced Persons (Compensation and Rehabilitation) Act (XXVIIIA of 1958) and whether the further division of the portion in to three portions without taking into consideration that there were no separate amenities attached to the various portions transferred to the respondents, was opposed to the instructions of the Chief Settlement Commissioner issued from time to time in that regard.

3. The arguments advanced before us by learned counsel for the appellant are directed against the division of the property made by the Settlement Commissioner. We find that the learned officer had given reasons for the division and as such the High Court was justified in declining to interfere with the same. The property having been so divided, the provision of paragraph 1 of the Schedule to Act XXVIII of 1958 was not applicable. The appeal is, therefore, dismissed with no order as to costs, M.Z.M. Appeal dismissed