P L D 1979 S C 16 (PLP)

KARAM ELAHEE CHAUHAN, J.‑The dispute in this case is about a residential portion in Property No. S‑38‑R‑159, Circular Road, Lahore Muhammad Yaqoob (respondent No. 2) a claimant displaced person applied to have that portion which was transferred to him by the Deputy Settlement Commissioner on 26-4-1960.

2. The petitioners who are heirs of one Shamasuddin after a long time filed an application that their predecessor in- interest Shamasuddin who was a non-claimant displaced persons had also filed an N. C. H. from for the transfer of the above mentioned property on 8-8-1959 which according to them had not been taken into consideration and that the portion in dispute should therefore be transferred to them. The Department rejected their application holding that the property stood transferred as back as on 26-4-1960 and the matter could not be reopened after the lapse of such a long time. The petitioners filed a writ petition bearing No. 1371-R/1975 which was dismissed by a learned Single Judge of the Lahore High Court on 23-1-1976 with the following observation:- .but the learned counsel could not challenge the finding that the petitioner after the submission of the form moved the Settlement authorities for the first time in the year 1975 pressing for its disposal. There is nothing on the record to show that after the form had been filed the predecessor in interest of the petitioners pursued the matter and therefore it is difficult for me to ignore the finding that the property stood disposed of earlier. Had the predecessor in interest of the petitioners been vigilant in pursuing his case perhaps his case perhaps then there would have been some force in the submission made by the learned counsel but in the present circumstances I am not inclined to interfere in the order impugned especially when the property had been transferred to the respondent. Towards the end of their submissions it appeared that the petitioners brought to the notice of the learned Single Judge that the property had been resumed from the name of the respondent for non payment of the transfer price and therefore they prayed that the case of the petitioners may be considered in the light of that development. The learned Single Judge held that there was nothing on the record to support the aforesaid but if we can say so made a gratis observation that if that was so the petitioners might approach the settlement authorities and it would be fore them to re consider the claim of the petitioners and decide the same in accordance with the relevant law. Taking benefit of the aforesaid observation the petitioners again filed an application with the Department claiming the property pleading that it had become available due to the cancellation of the order of transfer from the name of Muhammad Yaqoob. It may be mentioned that the order of the resumption obviously was subject to challenge by the respondent and it appears that he was successful in getting the said order set aside and the property was restored to and allowed to remain with him by means of order dated 18-2-1976. The petitioners application which they had filed after the dismissal of the aforesaid writ partition was consequently dismissed on 29-4-1978 with a finding that the property was not available as it already stood transferred and consequently restored to the respondent.

3. The petitioners did not lose heart and again filed a writ petition No. 67-R of 1978 which was dismissed by the same learned Single Judge on 1-7-1978. The petitioners have come up in a petition for special leave to appeal against the last mentioned order.

4. Learn counsel for the petitioners argued that the N. C. H. Form filed by Shamasuddin predecessor in interest of his clients was not disposed of and therefore the transfer of property to the respondent without disposing of the aforesaid form was not justified. Apart from the fact that Muhammad) Yaqoob was a claimant whereas Shamasuddin was a non‑claimant displaced person, the view taken by the learned Single Judge in his earlier order dated 23‑1‑1976 that the petitioners had moved in the matter only in the year 1975 and as such the case could not be reopened at their behest after a lapse of such a long period was operative and still holds the file. The petitioners I did not challenge that order and as such it became final and cannot now be taken exception to before us. When confronted with this situation learned counsel argued that as the learned Single Judge had in his earlier order observed that the petitioners could move the Department in case the property was resumed from the name of respondent No. 2, therefore in the face of that) observation the entitlement of petitioners should have been examined by their department afresh. The contention has no merit. The observation of the learned Single Judge was dependent upon the finalisation of the resumption matter and if ultimately the property was not resumed from the names of the respondents, obviously the contingency on which the petitioners, depend did not materialise and as such the stage for reopening the case of the transfer of the property did not arise. On our part we also feel that the proper stood transferred as far back as 26‑4‑1960 to Muhammad Yaqoob and the conduct of the petitioners in not moving in the matter up till the year 1975 was a ground sufficient by itself in not reopening this case at such a belated C stage. The orders impugned in the circumstances do not suffer from any error of law or fact warrantnig interference by this court. The petition ha no merit and is dismissed. S. A. H. Petition dismissed.