1981 PLP 758 (SCMR)

Raja Said Akbar Khan, Advocate Supreme Court with kana Maqbool Ahmad Qadri, Advocate-on-Record (absent) for Petitioner. Nemo for Respondent. ANWARUL HAQ, C..J.--The dispute in this case concerns evacuee building site measuring 11 Marlas and 68 Sq. Ft., situate in Koocha Mahboob Raj, Lahore. The petitioner Irshad Ahmad applied for its transfer on form B. S. under Settlement Scheme No. VIII. By an order made on the 15th of April, 1974, the plot was transferred to the petitioner by the Deputy Settlement Commissioner. The respondent Sain Miraj Din thereupon filed an appeal which was accepted by the learned Settle ment Commissioner, by his order dated 26th of June, 1974, and the case was remanded to the Deputy Settlement Commissioner for fresh inquiry and decision. By any order made on the 2nd of October, 1976, . the learned. Deputy Settlement Commissioner rejected the claim of the petitioner to the transfer of this plot. He also rejected the claim of respondent Sain Miraj Din and directed that the plot be placed in the auction list. Aggrieved by this order of the Deputy Settlement Commissioner, both the contending parties filed their respective writ petitions in the Lahore High Court, which were disposed of by a learned Judge by a single order dated the 30th November. 1976. He accepted the writ petition filed by Sain Miraj Din and directed that an area of 3 marlas out of the disputed plot be transferred to him, and in regard to the remaining portion he directed the Deputy Settlement Commissioner for deciding afresh the question of the entitlement of the present petitioner keeping in view the fact that as laid down in Mahmooda Tahsin v. Ijaz Hussain Shah (1) it was not necessary that the petitioner should have put up construction on 1/4th of the total area. The petitioner is dissatisfied with the order made by the High Court in regard to the transfer of 3 marlas out of the disputed plot to respon dent Sain Miraj Din. It is submitted by Raja Said Akbar Khan; learned counsel for the petitioner, that the respondent was not at all in possession of any part of the building site in question, and, therefore, he was not entitled to its transfer, specially because he had not even submitted any application or form for the same. The learned counsel contends that the High Court was not competent, in the exercise of its writ jurisdiction, to go into these questions of fact, which had been found against the respondent by the Deputy Settlement Commissioner. The learned counsel further submits that the petitioner is a displaced person whereas the respondent is a local, and the only claim made by him was that he used to tether his mare in this plot and also keep a movable Khurli for feeding the mare, and it was clear that these facts did not constitute possession of the respondent on any part of the property. The learned counsel strenuously contends that the building site was one indivisible unit and the High Court had no jurisdiction to divide it for the benefit of the respondent. The learned counsel also submits that the learned Judge in the High Court has misconstrued the statement made by the petitioner so as to gain the impression that the petitioner had conceded that the respondent was in possession of a part of the plot. Relying on the judgment of this Court referred to by the High Court in the impugned order. Raja Said Akbar. Khan submits that the respondent was not at all entitled to the transfer of any portion of the disputed plot, and that his whole claim was sought to be pressed on the basis of a fabricated F.

1. R. lodged With the police on the 18th of August, 1976, by one Miskin purporting to be acting on behalf of the respondent. After hearing the learned counsel -for the petitioner at some length we have formed the view that this is not at all a fit case for our inter ference. We find that the learned Judge in the High Court took the trouble of sending for the original record of the Settlement department, and after its examination he came to the conclusion that the findings recorded by the Deputy Settlement Commissioner on the question of the possession of respondent Sain Miraj Din as well on the question of submission of B. S. form for the transfer of a portion of the-plot were factually incorrect, and were contradicted by the record. He found that on the 7th of June, 1976, an order had been made by the Deputy Settlement. Commissioner directing the Settlement Inspector concerned to inspect this plot and report whether Sain Miraj Din was in posses sion of any portion of the plot or not. The learned Judge found that this direction was made while ordering that a notice be issued to the respondent in connection with the transfer of this plot. He concluded that if the respondent had not submitted any form, the question of directing the issuance of notice and also for the inspection of the spot could not have arisen. The learned Judge in the High Court also found that on the 22nd of July, 1976, the Settlement Inspector had recorded a report, that Sain Miraj Din only tethered his mare at the spot and also kept a Khurli, but had not put up any construction. From the report the learned Judge concluded that Sain Miraj Din was in possession of a part of the plot. He, ' therefore, came to the conclusion that this portion of the plot measuring 3 marlas only should go to the respondent. He did mention the incident of the 18th of August, 1976, but his decision does not rest on the F. I. R. lodged with the police on that date. There was no legal impediment in the way of the learned Judge in the High Court interfering with a finding of a fact recorded by the Deputy Settlement Commissioner which was clearly against the material on record. It is Well established that ordinarily a finding of A fact will not be interfered with by the High Court in the exercise of its writ jurisdiction, but if the finding is not based on any evidence what soever, or proceeds in disregard of material evidence, then it can be set aside. Now, in the instant case, the facts and circumstances were such that no useful purpose would have been served by the High Court remanding the case to the Deputy Settlement Commissioner for determining these two questions. From the report of the Settlement Inspector it did become clear that the respondent Sain Miraj Din was asserting his possession over a portion of the plot. 1n the judgment relied upon by Raja Said Akbar Khan, and referred to by the High Court also, it has been laid down by this Court that there is no legal requirement that an. applicant for the transfer of a building site should have put up a permanent construction on 1/4th are of the plot, but at the same time it is also observed in this judgment that an applicant cannot claim more than the portion in his possession. In the present case Sain Miraj Din having been found to be in posses sion of a portion of the plot, the present petitioner could not lay any claim to that portion. The learned Judge was, therefore, right in directing the Deputy Settlement Commissioner to determine the entitlement of the present petitioner with regard to the remaining portion of the disputed pilot. For these reasons, the petition fails and is hereby dismissed. Petition dismissed.