1983 PLP 1281 (SCMR)

Malik Muhammad Nawaz, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners (in C. P. L. A. No. 411 of 1977). Abdul Salam for Respondents (in C. P. L. A. No. 411 of 1977). Masood Javed, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner (in C. P. L. A. No. 561 of 1979). A. R. Shaukat, Advocate Supreme Court and Syed Inayat Hussain, Advocate‑on‑Record for Petitioner (in C. P. L. A. No. 368 of 1977). Shahzad Jahangir for the Settlement Department (in all Cases). Date of hearing : 12th April 1983. SHAFIUR RAHMAN, J.‑This order disposes of in all nine petitions seeking leave to appeal against the judgment of the Lahore High Court, all dealing with division and transfer of portions from a big residential property on Temple Road, Lahore. The dispute in all these petitions relates to portions of property' No. S‑57‑R35, Temple Road, Lahore. It spread over two khasra numbers. Khasra No. 2523 originally belonged to Kania Lal and Khasra No. 2524 belonged to Kishan Chand. On 31‑4‑1944 Faqir Chand purchased both these Khasra Nos. at a Court auction. Many persons,‑ claimants, non. claimants and locals occupied different portions of this property and sought transfer thereof. The last order of division and disposal of this property was passed on the settlement side on 8‑1‑1977, pursuant to remand order of the Settlement Commissioner dated 17‑8‑1973. The first principle adopted in accommodating the applicants was that those who had applied under Settlement Scheme I or were entitled thereunder and had been actively contesting the disposal were alone considered and claims under Settlement Scheme VIII were not entertained as the property was not treated to be available property. C. P. 346 of 1978: Ghulam Muhammad v. Jan Muhammad and 2 others C. P. 343 of 1978: Begum Sarfraz Khan v. Abdul Salam and another Both these petitioners are locals. They did not apply for the transfer of any portion of the property. They entered the arena of contest when Settlement Scheme No. VIII was introduced. Their claim was not enter tained and the property was held to be not available for transfer under Settlement Scheme VIII. The High Court endorsed this view. The petitioners claim that the portions in their possession could be treated as a separate unit and if that were done, it will have to be treated and disposed of as available property. This in fact amounted to asking for a redivision of the property in a manner to carve out an independent portion of what was in possession of the petitioners. Such an interference with the division of the property for the benefit of the locals cannot take place and was rightly refused by the High Court and we find no merit in these two petitions which are dismissed. The petitioners have in the division of property received a portion more or less conforming to their possession. They, however, felt aggrieved as the entire courtyard on the western side of the portion transferred to them was not transferred to them. The High Court held that apart from the built up portion in their possession the petitioners had been allowed the friint portion of the courtyard and a portion of the vacant space on the western side. It could not, for this reason be said that the division ordered by the Settlement Authority was either arbitrary or fanciful. Their writ petition failed. The petitioners challenged the division. Their case was that they should have been allowed that portion of the courtyard which was in their possession and which had been transferred to there by the Deputy Settle ment Commissioner by his order dated 6‑1‑1960 and 7‑12‑1960. They also objected to Shamsuddin being allowed two staircases for access to his property while they themselves were asked to construct another from street. Abdus Salam was not in possession of the upper portion of the property, had not asked for it and yet he was given that portion while petitioners were kept confined to the ground floor. In this Court, the parties have submitted a written compromise readjusting their possession under the orders of transfer. We accept the compromise and converting this petition into appeal accept it in terms thereof. The petitioners grievance in the Constitutional Petition was that respondent Abdus Salam had been transferred "the petitioner's roof and the verandah". At the hearing in the High Court Abdus Salam conceded the claim of the petitioner on condition that "Ziauddin may be asked to allow him in return the use of his staircase as directed by the Deputy Settlement Commissioner". Ziauddin had agreed to spare a clear four feet strip from the Trilok Street to the staircase. His petition was accepted in these terms. The petitioner wanted to avoid this compromise and filed a review petition. It was dismissed as it was found that in fact his counsel was present and he had subscribed to the compromise. In this background of events the petitioner cannot be permitted to repudiate the arrangement which he himself finalized in Court. Leave to appeal is refused to him. The petitioner claims to have been transferred on the basis of Deputy Settlement Commissioner's order dated 6‑1‑1960 what the petitioner himself occupied namely, two rooms, a gallery and courtyard in addition to the portion occupied by Ghulam Muhammad, a local, and portion of first floor of which Abdus Salam came into possession later. His grievance was that by the final order of division Abdus Salam was given the first floor of which he came into possession, later though, the transfer of his own portion and that of Ghulam Muhammad in favour of the petitioner was kept intact. The High Court rejected the claim of the petitioner to the portion occupied by Abdus Salam on the ground that it was not allotted to him under the order dated 6‑1‑1960, that the petitioner had been given what was in his occupation and something else too, that is, the portion occupied by the local Ghulam Muhammad who was found ineligible. We find that the petitioner cannot now claim anything more thane what was in his possession. If he has got something more in the division whereby units were created, it is no ground for claiming still more. The petition has no merit and is therefore dismissed. C. P. 862 of 1979, 863 of 1979 and 864 of 1979, Mst. Walian v. The Deputy Settlement Commissioner and others and 1049 of 1981 Abdul Hamid v. D. S. C. and others. Abdul Hamid and Chotey Khan laid claim to portions of lawn over which they had raised construction and the transfer of which had been refused to them. Their constitutional petitions (W. P. 502 R‑77 and W. P. 552 R‑77) were allowed on 1‑4‑1978 and the Settlement Authority was directed to take into consideration their claim to it. Mst. Walian who considers the lawn to be a part of the portion transferred to her felt aggrieved and has filed two petitions C. P. 862 and 863 against it. The Deputy Settlement Commissioner by order dated 31‑3‑1980 allowed them what was actually found in their possession and was built upon. Abdul Hamid felt aggrieved because he considered himself entitled to more. He filed a constitutional petition (W. P. 48 R/81) which was dismissed on 16‑2‑1981. His Intra‑Court Appeal also failed on 6‑6‑1981. He seeks leave to appeal (C. P. 1049/81). His petition is barred by 83 days. His petition for condonation of delay shows that the delay was on account o the petitioner remaining under the bona fide impression that the period of limitation was ninety days. This is not a sufficient ground for condoning the delay and his petition is dismissed as time‑barred. Mst. Walian has filed three petitions, one each in respect of the transfers of plot in favour of Abdul Hamid and Chotey Khan, and the third (C. P. 864) against the transfer of staircases and front lawn to Shamsuddin. As Abdul Hamid and Chotey Khan have been transferred that portion of the lawn which was in their possession and over which they) had raised construction, and it was located on a different Khasra number F (No. 2524) she could not lay claim to it. Her petitions against them are, dismissed. In C. P. 864/1979 Salahuddin one of the legal. representative has on behalf of other legal representatives and in adjustment o boundaries with a view to ensure more convenient and beneficial enjoyment of the properties agreed to transfer a portion of the open space to Mst. Walian. We have got marked and signed this portion on the plan (bounded Z 1, Z 2, Z 3 and Z 4) and converting her petition into appeal allow it to this extent. The rest of the claim with regard to stairs etc. is dismissed. Parties to bear their own costs. M. Z. M. Order accordingly.