1976 PLP 446 (SCMR)

MUHAMMAD AKRAM, J.‑‑This is a petition for special leave to appeal from the judgment dated 4th December 1975, passed by a learned Judge of the Lahore High Court at Lahore disposing of the writ petition filed by the petitioner herein against the respondents. The dispute is this case relates to property No. 81‑D. Model Town, Lahore measuring 6 Kanal. It appears that the evacuee owner had only built 5 servant quarters. 2 garages, I bath‑room, one kitchen and 2 varandas at the site by the time of his migration in the year 1947. After the partition, the built up portion was occupied by different persons. Muhammad Hussain, husband of the petitioner Mil. Allah Di (deceased) occupied the two garages. He was a non‑claimant and the petitioner, as his wife, applied on a CH form for the transfer on the basis of his possession. On the 8th December 1.959, the Deputy Settlement Commissioner transferred the property to the petitioner and Nazim Beg, respondent No. 5, in equal shares and a P. T. O. was also issued in their names on the 7th December 1960. In spite of this, on the 15th August 1960, the property was put to auction, without any notice to them. in favour of Sh. Rehmatullah, respondent No. 4, for Rs. 30,

600. But before the auction could be confirmed, the petitioner made an application to the Additional Settlement Commissioner objecting against it. On this, the Additional Settlement Commissioner discussed the matter with the Deputy Settlement Commissioner and, with his consultation, cancelled the auction on the 26th August 1960. Respondent No. 4 went up in appeal against the order. On the 20th January 1961, Malik Ghulam Jilani Khan. Additional Settlement Commis sioner (Judicial), Lahore I, formed the opinion that the property in dispute was not a house liable to be transferred under Settlement Scheme No. 1, but a plot which was rightly put to auction in favour of respondent No.

4. He, therefore, accepted his appeal. But on further revision filed by the petitioner and respondent No. 5, the Settlement Commissioner set aside the order and remanded the case to the Deputy Settlement Commissioner for a fresh decision. After the remand on the 17th September 1962, the Deputy Settlement Commissioner, Lahore declared the property to be a building site. But he made no order for its transfer. On this, the petitioner and respondent No. 5 filed a joint appeal and respondent No. 4 filed a separate appeal against the order. The two appeals were disposed of by the Additional Settlement Commissioner on the 25th November 1963. He rejected the joint appeal filed by the petitioner and respondent No. 5 holding the property in dispute to be a building site and directed its transfer to respondent No. 4 as the auction purchaser. Dissatisfied, the petitioner and respondent No. 5 fled a revision which was dismissed by the Settlement Commissioner on the 11th January 1967. In these circumstances, Mst. Allah Di alone preferred the writ petition No. 641‑R of 1969, challenging the validity of the orders transferring the property to respondent No. 4 through auction. On the 4th December 1975, a learned Judge of the Lahore High Court at Lahore, in disposing of the writ petition, agreed with the petitioner in holding that the view formed by the Settlement that the construction on this property being not more than 1/8th of the total area, the property could not be treated as a house and had, therefore, to be disposed of as vacant plot under Settlement Scheme No. VI, was erroneous. Before him, it was urged on behalf of the petitioner that she was entitled to the transfer of the property in her possession for which she had applied plus three time of the plinth area in keeping with the definition of the term "house" contained it: section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act. In the opinion of the High Court according to the definition of the term the construction in question was not appertenant to any house or shop built at the site and should, therefore, have been disposed of as a house by itself as it was being used as such. But then, according to the Court, on her own showing the Petitioner would be entitled to only one‑quarter in Property No. 81‑D; Model Town, Lahore, for which she had actually applied on her CH form. In the result, the Court accepted the writ petition of the petitioner and directed the Settlement authorities to consider afresh the form submitted by her for the transfer of the portion in her possession along with three times the plinth area in the light of the judgment in Tufail Muhammad Khan v. Abdul Hamid etc. (P L D 1967 Lah. 1058). Indeed, in that respect, before the High Court, respondent No. 4 agreed that he would be prepared to accept the remaining area comprised in Bunglow No. 81‑D, Modal Town, Lahore on the same price without claiming any rebate for the portion thus taken away from him. In these circumstances, the petitioner has come up to this Court for special leave to appeal from the order thus passed by the High Court: It is evident from the CH form filed by the petitioner that she had merely applied for the transfer of one‑quarter in Bungalow No. 81..D, Model Town, Lahore and, therefore, she could not, as of right, claim over and above for what she had actually applied. Substantial justice has been done in this case before us and we find no good reason for our interference with the, impugned judgment passed by the High Court. This petition has no force and is, therefore dismissed. Petition dismissed.