P L D 1994 Supreme Court 361 (PLP)

FAZAL ILAHI KHAN, J.‑‑‑This is a petition for leave to appeal against the judgment of the Peshawar High Court, Peshawar, dated 27‑4‑1993; whereby, the Writ Petition No.1143 of 1992 was dismissed. Muhammad Zarin respondent No.4 herein instituted suit possession of the shop in question against Abdus Salam petitioner herein alleging that he being in possession of the shop in question under Ex‑Nawab entered into partnership agreement with the petitioner for running joint business in the same. That subsequently on termination of the partnership business the petitioner refused to hand over the possession of the shop to him which necessitated the filing of the present suit before the Deputy Commissioner under the FATA Regulation. Defendant resisted the suit by filing his written statement where after the dispute was referred to the Tribunal for their verdict. The learned Tribunal after recording the evidence of the parties, on 4‑3‑1990, by majority, held that the shop was constructed by Muhammad Zarin in which he was running his business till he joined the petitioner in his business. Plaintiff was, therefore, held entitled to restoration of possession. It was further held that the petitioner failed to prove that he had paid Rs.300 to Muhammad Zarin in lieu of his surrendering possession to him. The Assistant Commissioner, exercising the power of Deputy Commissioner under FATA Regulation, agreeing with the majority award decreed the plaintiffs suit on 29‑7‑1990. Abdus Salam petitioner challenged the same in appeal before the Additional Commissioner, Malakand who was pleased to accept it on the ground that the plaintiff/respondent not being the owner of the property was not entitled to the restoration of possession of the shop. The judgment and decree was set aside and the plaintiff/respondent's suit dismissed. This time Muhammad Zarin plaintiff approached the Home Secretary, Government of Peshawar in revision, challenging the judgment and order of Additional Commissioner passed in appeal, and prayed for setting aside the same and for restoration of the judgment of the Assistant Commissioner. The revision petition was accepted by the Home Secretary on 21‑10‑1989 holding that there was no justification for the Additional Commissioner to have interfered with the majority award without any legal justification. The judgment and order of Secretary Home Government of N.‑W.F.P. was questioned in Writ Petition No.1143 of 1992 .which was dismissed by learned High Court by judgment, dated 27‑4‑1993 against which leave to appeal is prayed for. We have heard the learned counsel for the petitioner and Syed Safdar Hussain, Advocate, for Ex‑Nawab who was not a party before the lower forum. The contention of the learned counsel for the petitioner that the suit property belong to Ex‑Nawab for which he has been regularly paying rent to him since long is not borne out by the record and is contradictory to his pleadings at the trial. In resisting the plaintiffs suit the petitioner in his written statement has set up a case that he purchased the possessory right from Muhammad Zarin respondent on payment of Rs.300 which is an admission of his having entered into possession of the shop with his consent. His possession being with permission and under Muhammad. Zarin he cannot be allowed to set up a new case. The findings given by the Tribunal and that by Secretary, Home in revision neither suffer from any illegality nor infirmity to warrant interference in Writ jurisdiction. We, therefore, do not find any fault in the judgment of the learned High Court refusing to interfere with such finding. Leave to appeal is, therefore, refused. AA./A‑1113/S Leave refused.