S 1981 S C M R 708 (PLP)

KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about ' a Shop No. 54 situated, in Ward No. 1, Salim Akhtar Road, Mailsi, district Vehari. It is not necessary to go into the lengthy details of the litigation through which the present case passed and it will be sufficient for the purpose of, the present order to mention that the petitioner filed a form for transfer of this shop under a scheme known as "Scheme for the Management and disposal of available urban properties" published in the Gazette of. Punjab, Extraordinary, 31-1-1977 and also in P L D 1977 Punjab Statutes at page, 62, generally called by the lawyers, as Scheme No.

9. The form of the petitioner was accepted on 11-1-1978 by the Deputy Administrator (Residual Properties), Multan, Vehari, and the shop was transferred to him. .

2. The rival applicant lust. Sakina (respondent No. 2, herein) who had also filed .a similar form challenged that order by a revision petition which was accepted on 20-3-1979 by the learned Additional Commissioner (Rev.) Administrator (Residual Properties), Multan Division. The learned Additional Commissioner reversed the order of Deputy Settlement Commis sioner and held that, from the material produced before him, it appeared that the petitioner was not in occupation of the shop in his own right and was holding the same as a tenant under Mst. Sakina. In the light of this factual finding be then held that under the law a tenant could not claim transfer of a shop in preference to his landlord who may have also applied for getting the same shop: Consequently he transferred that shop to Mst Sakina.

3. The petitioner then filed a constitutional petition in the High Court being W. P. 503-R/79 but without any success as, the same was dismissed by a learned Single Judge of the High Court on 19-5-1979, with a short observation that the view of the learned Additional Settlement Commissioner that a tenant could not claim a shop in preference to the landlord was un exceptionable. The petitioner has come up in a petition for special leave to appeal against the same to this Court.

4. Learned counsel tried to argue that his client was not in occupation of the shop in his capacity as a tenant under respondent No.

2. He submitted that there was no evidence on the record to support the aforesaid fact. The learned Additional Settlement Commissioner, it may be mentioned for the purpose of his finding aforesaid, referred to a rent note which was executed by the petitioner in favour of the respondent and also to the entries, in the relevant excise and tax register. Learned counsel for the petitioner, however, argued that no rent deed existed on the file and as such a finding of an imaginary rent deed was not correct. Here it may be mentioned that the tenor of the order of the Additional Commissioner shows that a rent deed was shown to and produced before him and the mere fact that now that document is not on record will not detract anything from the aforesaid finding. When confronted with this situation learned counsel submitted that he was not aware whether any rent note was shown to the learned Additional Settlement Commissioner and therefore would not be in a position to make any submission on this aspect of the matter. All this will show that the plea of the learned counsel pertains merely to a question of fact and just as the High Court found itself unable to go beyond that finding the same is the position of this Court as well. The case is concluded by a finding of fact and is not fit for grant of leave. The result is that this petition has no merit and is dismissed. Petition dismissed.