1985 PLP 551 (SCMR)

Sh. Maqbool Ahmad, Advocate Supreme Court instructed by S. Inayat Hussain Shah, Advocate‑on‑Record for Petitioners. Hanif Niazi, Advocate Supreme Court instructed by S. Wajid Hussain, Advocate‑on‑Record for Respondent No.2. Date of hearing: 15th August, 1984. M.S.H.QURAISHI, J.‑‑ In the property in question measuring 5 Kanals 5 Marlas and situate in Mianwali Town, a house had been built by the evacuee owner on an area of 2 Kanals. The entire property was occupied by respondent Dr. Mohammad Azeem Khan who converted it into a hospital, using the un constructed part as a compound. On his application, the property was transferred to him but the area was not mentioned in the P.T.D. issued in his favour on 30‑7‑1962. Taking advantage of the same, petitioners ‑1 to 3, who are residents of District Sialkot, got the un constructed area measuring 3 Kanals 5 Marlas allotted in their favour on 19‑2‑1971 as agricultural land. Immediately thereafter, they sold the property to petitioner No.4 by a registered sale‑deed dated 24‑2‑1971. The respondent, on coming to know of it, agitated the matter and succeeded in revision, which was accepted on 25‑10‑1972. The petitioners challenged the order through Writ Petition No.788‑R of 1972.

2. Meanwhile, there being conflicting decisions of the Settlement authorities, one on the land side and the other on the urban side, the matter was taken up in suo motu revision, in which it was held that the un constructed area was not agricultural land but was a part of the residential premises being used as hospital by the respondent. However, the transfer made in favour of the respondent was set-aside on the view that the Deputy Settlement Commissioner had no power to transfer the property, which had been converted, into a hospital. This is vide order dated 20‑9‑1973. Faced with this situation, the respondent applied under Settlement Scheme No. VIII, in the result of which the whole property measuring 5 Kanals 5 Marlas was transferred to him on 28‑1‑1974. This order was not specifically challenged by the petitioners.

3. The aforesaid writ petition filed by the petitioners was, however, dismissed by the High Court by its order, dated 12‑2‑1980 upon the view that the disputed area was neither agricultural land nor was it available for allotment in the year 1971, that the allotment in favour of the petitioners not being accompanied by delivery of possession could not be considered to be complete, that the order of allotment having been passed without notice to the respondent was a nullity and that the subsisting transfer made in favour of the respondent on 28‑1‑1974 had not been challenged by the petitioners.

4. After hearing learned counsel, we are satisfied that the decision taken by the High Court calls for no interference. The transfer mad on 28‑1‑1974 in favour of the respondent has acquired finality. The petition is, therefore, dismissed. M.I. Appeal dismissed.