1976 PLP 491 (SCMR)

HAMOODUR RAHMAN, C. J.‑The dispute in this case relates to a shop being No. P. 154 in Ward No. 8, Lakkar Mandi. Karkhana Bazar, Lyallpur. One Shadi Muhammad deceased, the husband of the present petitioner, was an old tenant of the shop. On 5th February 1957, he entered into a part nership with respondent No. 3 and one Nazir Ahmad to run the business in the said shop. As Shadi Muhammad was a local, the Deputy Settlement Commissioner, on the 4th of December 1959, ordered the shop to be disposed of by auction. Shadi Muhammad did not file any appeal against this order, but respondent Ali Muhammad went up in appeal making Shadi Muhammad a respondent in the appeal. Before the Additional Settlement Commissioner, both sides appeared and Shadi Muhammad alleged that the respondent Ali Muhammad was never in possession of the shop. A report was accordingly called for. The Settlement Inspector submitted a report dated 20th of July 1960, showing that the respondent Ali Muhammad was conducting the business of the shop and was in occupation thereof. Shadi Muhammad had no connection with the business. Ali Muhammad also relied on certain documents to establish his possession prior to the 20th of December 1958. The appeal of Ali Muhammad was ultimately accepted on the 20th of September 1960, and he was found entitled to the transfer of the shop in dispute. Against this order, Shadi Muhammad filed a review supporting the order of the Deputy Settlement Commissioner. It is significant that he neither claimed transfer of the shop in his own favour nor in favour of his wife, the present petitioner. He also did not mention that his wife had already submitted N C S form for the transfer of the shop. The Additional Settlement Commissioner sought the permission of the settlement Commissioner to review the previous order of his predecessor and ultimately, on the 24th of February 1972, reviewed the previous order and directed that the shop in dispute be put to auction. It appears that at this stage the present petitioner also filed an application before the Additional Settlement Commissioner claiming the transfer of the shop. This order was rejected on the same day, namely, the 24th of February 1972. From this order, both Ali Muhammad and Mst. Murad Bibi went up in second revision before the Settlement Commissioner who, by his order of the 19th of October 1962, accepted the revision of Ali Muhammad but rejected that of Mst. Murad Bibi. Mst. Murad Bibi then came to the High Court in the writ jurisdiction, but her writ petition was dismissed with costs on the 18th of January 1966. She went up in Letters Patent Appeal, but the some was also dismissed on the 16th of November 1972. The Division Bench found it difficult to accept the claim of the petitioner that she had filed a NCS form in 1959, because, neither her husband Shadi Muhammad nor her son, who continued to prosecute the litigation after the death of his father, ever made any reference to such a form at any stage of the litigation. In fact, even in his review petition in October 1969, he only asked for the property to be put to auction. If in fact his had filed a claim form as is now being alleged, he would have taken a different stand. The High Court also took the view that in any event, since the Settlement Authorities had come to the conclusion that Ali Muhammad was in possession of the shop at the relevant time and not Shadi Muhammad, the very foundation of the claim of Mst. Murad Bibi disappeared. This was a finding of fact which could not be interfered with in the writ jurisdiction. Mst. Murad Bibi has now come up to this Court for special leave to appeal, and it has been very strenuously contended on her behalf that the find ings of the Settlement Authorities are based on a misreading of the evidence and misinterpretation of the partnership deed (Annexure 'B') which clearly showed that the partners Ali Muhammad and Nazir Ahmad had nothing whatever to do with the shop. It was to remain the shop of Shadi Muhammad. The question of title was not in issue, but the question was as to who was in actual possession on the relevant date, and according to the Settlement Authorities Ali Muhammad got physical possession of the shop after the execution of the partnership deed and continued in such possession on or before 20th of December 1958. This, as rightly observed by the High Court, is a question of fact which does not appear to suffer from any misreading of the evidence or any misconstruction of the document. The question, as to whether Mst. Murad Bibi had filed a NCS form in 1959 or not, was also a question of fact, and this too has been found by all the Settlement Authorities against the said Mst. Murad Bibi. In the circumstances, no question of law arises for consideration in this case. The High Court was not an ordinary Court of Appeal, for, in its writ jurisdiction it could not review findings of fact arrived at by the Settlement Authorities which suffered from no defect. This petition is accordingly dismissed. Petition dismissed.