1976 PLP 463 (SCMR)

ANWARUL HAQ, J.‑‑The petitioner is aggrieved by the dismissal of his writ petition bearing No. 495 of 1963 by a learned Single Judge of the former High Court of West Pakistan. Lahore Branch, as well as by the dis missal of his Letters Patent Appeal by a Division Bench of the High Court by its order dated 12‑6‑

72. The dispute relates to the transfer of house No. 7, Scotch Corner‑ Upper Mall. Lahore a portion of which is in the possession of the petitioner Syed Manzoor Hussain Ghazi, and the rest is with respondent No. 3, Mrs. Abdul Karim and her children namely, son Abid Karim and daughter Zubaida Fasal. The Settlement authorities have treated the entire property as being indivisible as that was the stand taken by both the parties including the petitioner; and they have held that the respondents were better entitled to its transfer on the basis of their prior allotment dating back to the 18th of August 1949. The main dispute in the case has centred round the status of the respondents, namely, whether they were claimants or non‑claimants, and. also whether the present petitioner could be regarded as a claimant as he had failed to produce his compensation book before the learned Settlement Commissioner, when called upon to do so. The Courts below have held the respondents Nos. 3 to 5 to be claimants for the reason that by an order made on 28‑11‑1961, Mr. Ziaullah Khan, Claims Commissioner, included the respondents Nos. 3 to 5 in a claim which had previously been verified in the name of respondent No. G, Mohammad Ali a brother of the late Abdul Karim, the predecessor‑in‑interest of the other three respondents. They have further observed that this order of Mr. Ziaullah Khan was challenged by the present petitioner in a writ petition and the matter was again reviewed by Mr. Saeeduz Zaman as a successor Claims Commissioner, and he upheld the previous verification by his order dated 17‑4‑

69. In the presence of these two verification orders the Settlement authorities as well as the High Court have treated the contesting respondents as claimants, entitled to preference over the present petitioner for the purpose of the transfer of the property is dispute. The petitioner seeks leave to appeal on the following grounds:‑‑ (a) That both the Claims Commissioners had gone wrong in treating respondents Nos. 3 to 5 as co‑sharers in the claim originally filed by respondent No. 6, Mohammad Ali, in his own name, as there was no evidence at all to show that Mohammad Ali was a brother of the late Abdul Karim, predecessor‑in‑interest of respondents Nos. 3 to 5; (b) That in any case even if the said respondents are treated as co‑sharers in the claim originally filed by Mohammad Ali, they could not acquire the status of a claimant for the purpose of the transfer of urban property, as Mrs. Abdul Karim had filed N. C. H. form for this purpose which was not allowed to be converted into a C. H. form by the learned Settlement Commissioner; and That the learned Settlement Commissioner acted hastily and arbitrarily in giving only two hours time to the petitioner to produce his compensation book, and he erroneously . proceeded to regard the petitioner as a non‑claimant. , After hearing the petitioner in parson at some length, we are of the view that there is no merit in these submissions. The question whether the late Abdul Karim, predecessor‑in‑interest of respondents Nos. 3 to 5, was indeed a brother of respondent No. 6, Mohammad Ali, and whether he had any share in the ancestral property claimed by Mohammad Ali as boring been abandoned in India were questions of fact, and had to be decided by the statutory authorities concerned on the basis of evidence produced before them. These questions have been answered in favour of the respondents by two successive Claims Commissioners on the basis of the available evidence, and the High Court was satisfied, after considering this evidence, that the findings recorded by Mr. Ziaullah Khan and Mr. Saeeduz Zaman ought not to be interfered with. We do not see how we can interfere with these findings of fact. It does appear that there was evidence produced before the two Claims Commissioners in support of the joint application which had been made by Mohammad Ali as well as by the successors‑in‑interest of Abdul Karim to the effect that they were brothers and that Abdul Karim had a share in the ancestral property abandoned in India. In view of the orders passed by the two Claims Commissioner 3, the respondents Nos. 3 to 5 have been rightly treated as claimants. Once it is held that the predecessor‑in‑interest of respondents Nos. 3 to 5 had a share in the claim verified previously in the name of Muhammad Ali, it is obvious that the aforesaid respondents become entitled to be treated as claimants. The learned Settlement Commissioner was, therefore, right in deciding their case on that basis, even though, acting on a mere technicality he considered that the N. C. H. form submitted by Mrs. Abdul Karim could not be allowed to be converted into a C. H. form. This observation was no more than technicality and could not deprive the respondents of their true entitlement as claimant displaced persons. Once the respondents are treated as claimant displaced persons, they would be entitled to preference for the transfer of the property in view of their admitted prior allotment and possession as compared to the petitioner Even if, therefore, we consider that the learned Settlement Commissioner ought to have allowed more time to the petitioner to produce his compensa tion book, and we consider him as a claimant for the purpose of transfer of the property, it would only mean that there would be a contest between two sets of claimants, one of which was admittedly in prior possession, and the property was being treated as indivisible by all concerned. On this view of the matter, the respondents were obviously better entitled to the transfer of the house in dispute. Towards the close of his submissions, the petitioner pleaded that the house may be divided between the parties. We regret, however, that we cannot accede to any such request, as it is not within our domain tot divide properties which have been regarded as indivisible by competent Settlement authorities In this case, the petitioner himself had all along been contesting for the transfer of the entire property on the ground it was indivisible. It is, therefore, too late in the day for him to urge at this stage that the property be now divided between the parties. Such a contention should have been raised before the Settlement authorities, mat least before the High Court, but it was not done so. For the foregoing reasons, we consider that this petition must fail. It is accordingly dismissed. Petition dismissed.