1983 PLP 888 (SCMR)

NASIM HASAN SHAH, J.‑In the course of proceedings relating to the transfer of a double-storied house situated in Mohallah Ram Talal, Sialkot, the Settlement Commissioner, in the course of the second round, held in his order dated 17‑7‑1961 that the house could be divided. Accordingly, he ordered the transfer of the ground‑floor ‑ to the predecessor‑in‑interest of respondents Nos. 1‑9, who was occupying a part of it, while the first and second floors thereof were ordered to be transferred to the predecessor‑in interest of the petitioners herein. This order seas challenged by the petitioners by a Writ Petition (W. P. No. 1606/R/1963) which was accepted on 30‑3‑1966 and the predecessor‑in‑interest of the petitioners found entitled to the transfer of the whole house. However, the appeal filed by the predecessor -in‑interest of respondents Nos. 1‑9 (L. P. A. No. 971, of 1966), has been allowed vide judgment dated 10‑11‑1980 passed by the L. P. A. Bench and the order of the Settlement Commissioner restored. Hence this petition for leave to appeal.

2. The learned counsel for the petitioners submits that during the pendency of the Letters Patent Appeal Allah Dad Khan, the predecessor‑in- interest of the petitioners herein, had died but his representatives were not brought on record within time, with the result that the appeal abated and, indeed the Letters Patent Bench in its earlier order passed on 21‑9‑1980 bad found accordingly observing that' "as no application had been made within the prescribed period for bringing on record the legal heirs of Allah Dad Khan the appeal abates and shall stand disposed of as such". However, on a civil miscellaneous application moved by respondents the said abatement order was set aside on 8‑10‑1980 and the appeal was restored to its original number (namely, L. P. A. No. 971 of 1966). Thereafter, the appeal was heard on merits and allowed on 10‑11‑1980, as mentioned already.

3. The main contention raised by Mr. Sher Zaman Khan, learned counsel for the petitioners, is that the appeal (L. P. A. No. 971 of 1966 having abated, which abatement was set aside on 8‑10‑1980, the same shall be deemed to have been instituted on that date. Since, in the meantime, the Law Reforms Ordinance, 1972, had been promulgated and by section 3 thereof, Letters Patent Appeals became barred only pending appeals having been saved, the Division Bench allowing the said appeal had no jurisdiction to do so because the instant Letters Patent Appeal could not be deemed to be a pending appeal.

4. We observe that the question being agitated before us was not argued before the Letters Patent Bench who allowed the appeal, as no reference has been made to this point in the order. On the contrary, we observe that the Letters Patent Bench, while setting aside the abatement of the appeal vide its order dated 8‑10‑1980, had directed that it should be restored to its original number, namely, Letters Patent Appeal No. 971 of 1966, and treated it to be a pending appeal and disposed it of accord ingly.

5. Be that as it may, we do not consider the present case to be a fit case for interference. The parties have, been living in the premises for the last 35 years. They have been transferred the portions which were in their occupation. In fact, in the C. H. form filed by Allah Dad Khan he had himself prayed for the transfer of only first and second floors of the house which were in his possession. These have admittedly been transferred in his favour.

6. Leave is refused. M. Z. M. Leave refused.