1987 PLP 1396 (SCMR)

‑‑Arts. 185(3) & 188‑‑Supreme Court Rules 1980, O.XXVI R.1‑ Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10‑‑Review‑‑Erroneous assumption of fact‑‑Supreme Court dismissing petition for leave to appeal on erroneously assuming that petitioner was successor‑in‑interest of transferee and was laying a claim to portion transferred to him‑‑Such fact not being correct, earlier order reviewed and leave to appeal granted to consider contention that it was not open to High Court to make an order with regard to a portion of evacuee property which had been transferred and was not subject‑matter of dispute before it. Ch. Muhammad Farooq, Rana Muhammad Sarwar Khan, Advocates Supreme Court and Rana Maqbul A. Qadri Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 26th April, 1987. SAAD SAOOD JAN, J.‑‑The dispute in this petition relates to a composite property which, when the settlement operations began, was in the possession of two persons, namely, Muhammad Ismail and Kalu Khan. Both were displaced persons. Muhammad Ismail was a claimant while Kalu Khan was a non‑claimant. They applied for the transfer of the property. The Settlement authorities transferred whole of it to Muhammad Ismail after recording a finding that it was indivisible. Subsequently, Muhammad Ismail entered into an association agreement with Rao Muzaffar Ali Khan and as a result the portion which was in the possession of Kalu Khan was transferred to Rao Muzaffar Ali Khan. Kalu Khan invoked the constitutional jurisdiction of the High Court to challenge the rejection of his claim form. A learned Single Judge dismissed his petition whereupon he preferred a letters patent appeal. The Division Bench of the High Court which heard the appeal held that the property was divisible. Instead of remanding the case to a notified officer the Division Bench directed that the portion which had been transferred to Rao Muzaffar Ali Khan be given to Kalu Khan and the portion which was transferred to Muhammad Ismail be given to Rao Muzaffar Ali Khan. It may be mentioned that during the pendency of the appeal in the High Court Muhammad Ismail died. After his death his legal representatives sold the portion transferred to him to one Manzoor Ahmad who, in turn, sold the same to the petitioner.

2. The contention of the petitioner is that the dispute in the High Court related entirely to the portion which was transferred to Rao Muzaffar Ali Khan for Kalu Khan was laying his claim to that portion alone. It was not open to the High Court to make an order I with regard to the portion which had been transferred to Muhammad Ismail as it was not the subject‑matter of the dispute before it II.

3. The contention raised on behalf of the petitioner needs examination. Unfortunately in the earlier order made by this Court it was erroneously assumed that the petitioner was the successor‑in‑interest of Rao Muzaffar Ali Khan and was laying a claim to the portion transferred to him. This was not correct. She had purchased the portion transferred to Muhammad Ismail. Kalu Khan had not challenged the transfer of this portion to Muhammad Ismail. We would accordingly review our earlier order and grant leave to the petitioner to appeal, Security for costs in the sum of Rs.2,

500. The appeal may be made ready on the present record with permission to the parties to file additional documents. In the meanwhile status quo be maintained. M.I./K‑13/S Leave granted.