1973 PLP 426 (SCMR)

Nemo for Respondents. Date of hearing : 28th June 1973. MUHAMMAD GUL, J.‑This leave petition is from the order of a Division Bench of the Lahore High Court dated 10‑5‑72 passed under clause 10 of the Letters Patent arming that of a learned Single Judge of that Court dated 6‑3‑72 in a writ petition moved by respondent No.

2. By that order the transfer of house No. 1196/8‑M, Lakar Mandi, Multan in favour of the petitioner herein, was quashed and the case was remitted to the Settlement Authorities for a fresh decision "in accordance with law", The facts so far as they are relevant to this petition are these. The petitioner is a claimant in prior possession of a portion of the disputed house. Respondent No. 2 is a non‑claimant in possession of another portion of the house. On the eve of the settlement operations while the petitioner filed CH form for the entire house, respondent No. 2 filed NCH form for the transfer of the portion of the house in his possession. The Deputy Settlement Commissioner, by order dated 11‑12‑59 transferred the entire house to the petitioner in preference to respondent No.

2. A P. T. O. was also issued in favour of the petitioner on 15‑12‑

59. Respondent No. 2 filed (a time‑barred) appeal on 6‑7‑63 before the Additional Settlement Commissioner who by his order dated 31‑3‑64, after personal inspection, found the house divisible and transferred the portion in occupation of respondent No. 2, against his NCH form. The Settlement Commissioner, on being moved in revision by the petitioner, restored the order of the Deputy Settlement Commissioner transferring the entire house to the petitioner, without adverting to the divisibility of the house. Respondent No. L filed a writ petition to challenge the revisional order of the Settlement Commissioner, which was allowed by a learned Single Judge on the short ground that the Settlement Commissioner's omission to advert to the divisibility of the house amounted to a failure to exercise jurisdiction vesting in him under law. The case was therefore remanded to the Settlement Commissioner for a fresh decision in accordance with law. This order was maintained by the learned Judges of the Division Bench against whose order the petitioner seeks leave. The main argument of the petitioner's learned counsel was, that the question going to the root of the matter was that the appeal filed by respondent No. 2 before the Additional Settlement Commissioner was hopelessly tarred by limitation and there was no prayer for condonation and yet the Additional Settlement Commissioner reopened the case and transferred a portion of the house in favour of respondent No. 2 even though he was a non -claimant. It was stressed that this aspect of the case was not given proper weight in the two proceedings in the High Court. Learned counsel however, could not question the ratio upon which the two judgments in the High Court proceeded remanding the case for a fresh decision. There is, therefore, no ground for interference by this Court at this stage. The petition is accordingly dismissed. It is, however, necessary to observe that there is no decision either by the High Court or by this Court, on the question of limitation. Therefore, it will be perfectly open to the petitioner to resist the claim of respondent No. 2 on any plea including the plea of limitation. Leave refused.