1985 PLP 526 (SCMR)

Abdul Majid Sheikh, Advocate Supreme Court instructed by Syed Inayat Hussain, Advocate‑on‑Record for Petitioner. Muhammad Naseem, Advocate Supreme Court (absent) for respondent No.4. Date of hearing : 15th August, 1984. M.S.H.QURAISHI, J.‑‑ This petition concerns the transfer of Plot No. C/424 measuring 1 Marla 10 sq. ft. situate at Paniwala Talab, Lahore. Aziz‑ur‑Rehman respondent who had been in occupation of this plot as also Plot No.C/425 and had raised construction on them, applied for its transfer on 14‑9‑1971 but the disputed plot was transferred to the petitioner on 22‑9‑1971. However on the representation of Aziz‑ur- Rehman the transfer was on 12‑10‑1972, declared by the Deputy Settlement Commissioner to be invalid on the finding that the petitioner was a trespasser into the portion of the property belonging to the said respondent. The petitioner's revision having failed on 28‑3‑1974 he invoked the constitutional jurisdiction of the Lahore High Court but without success. Hence this petition.

2. The points taken by the petitioner before the High Court were that the Additional Settlement Commissioner. Mr. Mansoor Ahmad Malik, who had dismissed the petitioner's revision, had been the Deputy Settlement Commissioner, on 22‑9‑1971, who had transferred the disputed plot in his favour and as such he could not have heard the revision, and that the Deputy Settlement Commissioner who passed the order against the petitioner on 12‑10‑1972, had no jurisdiction, on a miscellaneous application, to have set aside the order of his predecessor dated 22‑9‑1971. Both the contentions failed before the High Court upon the finding that the petitioner had not raised these points before the revising authority. The High Court further found, after perusal of the documents on the file, that the petitioner had come into occupation of the disputed property in 1967, that he had not been in possession prior to 31‑12‑1959 and that he was thus not entitled to its transfer under Settlement Scheme NO. VIII.

3. Learned counsel disputes the correctness of the finding in regard to the date of the petitioner's occupation. In this connection he referred to an affidavit of respondent Aziz‑ur‑Rehman, dated 10‑7‑1972 and to an F.I.R. lodged by him on 6‑3‑1969, as well as an extract from the birth register of 1960 showing the birth of the petitioner's son on 22‑7‑1960 at the address of the disputed plot. These documents, however, do not clinch the point in the petitioner's favour. The question as to the date of occupation of the property by the petitioner is one of fact and the High Court has given a categorical finding after reference to the record before it, with which no interference is called for. After hearing learned counsel we do not find it to be a fit case for grant oft leave. The petition is dismissed. M.I. Petition dismissed.