1976 PLP 493 (SCMR)

SALAHUDDIN AHMED, J: This leave petition is from an order of a learned Single Judge of the Peshawar High Court dismissing the revision petition of the petitioner. The dispute between the parties relates to a space 7' x 5' at the back of evacuee shop No. 2914 purchased by the petitioner at an auction held by the Settlement Department. The petitioner mortgaged the shop with the wife of Azad. Azad had been in possession of the shop since before the auction. Respondent Nazir Ahmad had also purchased an adjacent shop at' the same auction, and claimed the vacant back space running along the three adjacent shops including those of the petitioner and the respondent, and a purchaser of the third shop. At first a dispute arose between respondent Nazir Ahmad Rind Azad over the back space behind shop No. 2914. and the former lodged a report with the police and also filed a complaint under section 145 of the Code of Criminal Procedure. In this proceeding Nazir Ahmad .was held to be .inn possession and Azad was asked to establish his title in a civil Court, During the pendency of the section 145 of the Code of Criminal Procedure proceeding Nazir instituted a suit against Azad in a civil Court for possession of the land in dispute under section 9 of the Specific Relief Act and it was decreed in his favour on the 28th of November 1967. There was another dispute between Nazir and the purchasers of the third shop. Nazir instituted a second suit on the 23rd of January 1967, for a permanent injunction against the defendant. The suit was decreed on the 1st of July 1970, and an appeal from the decree, was dismissed. On the 24th of July 1968, the petitioner instituted the present suit against respondent Nazir Ahmad and some others for a declaration that the petitioner was the owner in possession of the disputed space behind shop No. 2914, and that be was not bound by the decree passed in favour of the respondent against Azad on the 28th of November 1967. The suit was dismissed, and it was, inter alia, found that the petitioner failed to prove ownership of the land in dispute. An appeal from this order was dismissed by the learned Additional District Judge on the 14th of March 1973. During the pendency of this appeal the petitioner transferred the disputed land to Azad. The petitioner applied for revision before the High Court and It was dismissed on the ground that there was a concurrent, Ending of fact against the petitioner and it could not be interfered with in revision. It appears that during the pendency of his suit, the petitioner approaches the Settlement Department ca the 16th of November 1970, for demarcation arid obtained an order dated the 16th of March 1971. From the Deputy Settlement Commissioner demarcating shop No. 204 and including the disputed back space in the shop. The order oaf the Duty Settlement Commissioner was produced for first time in the High Court, and it was rightly refused to be considered for the purpose of ousting the jurisdiction of the civil Court in the matter. It tray be pointed out here that a Permanent Transfer Deed had already been issued in favour of respondent Nazir, and Settlement Authority was, therefore, not competent to make the demarcation. We see no reason to interfere with the order of the High Court, and the petition is accordingly dismissed. Petition dismissed.