1980 PLP 921 (SCMR)

SHAFI‑UR‑REHMAN, J‑The petitioner seeks leave to appeal against an order of the Lahore High Court dated 29‑8‑1974, whereby the property of which the petitioner was seeking transfer being its occupant was held to be not available.

2. The property in dispute is an evacuee residential house known as Kothi Dinanath, situate at Hospital Road, Hafizabad, in Gujranwala District. It has an area of ‑ 6 kanals 14 marlas and 4 sarsahis and it is said that it consists of 51 rooms with an extensive courtyard. The question of its transfer was taken up by the Deputy Settlement Commissioner in June 1965. The property was divided and various portions thereof were transferred to respondents 3 to 9 as displaced claimants. This order of the Deputy Settlement Commissioner was challenged in appeal and the Additional Settlement Commissioner by an order dated 11‑3‑1970 accepting the appeal remanded the case to the Deputy Settlement Commissioner with the direction that he should visit the spot personally and decide the case after hearing the parties. It was after this order was passed that the petitioner intervened for the first time by filing N. C. H. form on 21‑3‑1970 claiming transfer of the portion in his possession. This form was rejected by the Deputy Settlement Commissioner on 10‑12‑1973 on the ground that the case before him was one of remand and the dispute was confined to the parties who had been parties before the Appellate Authority under whose orders the case had come up for re‑examination. The petitioner went up in revision against such refusal of the Deputy Settlement Commissioner and failed. His Constitu tional Petition in the High Court also failed. The appeal before a Bench of the same Court met with no better results.

3. The learned counsel for the petitioner has contended that as long as Permanent Transfer Deed is not issued the property remains in compensation pool. In this case as the transfer in favour of the respondents claimants had been set aside and the Deputy Settlement Commissioner had been asked to re‑examine the entitlement of the parties the petitioner could intervene and teas entitled to be considered on merits of his claim. In any case, it is said, he ought to have been beard before his form was rejected.

4. The question as to what is available property has been considered by a Full Bench of the Lahore High Court in Master Chiragh Din v. Abdul A Hakim and another (P L D 1974 Lab. 370). On the plain definition of available property the one in dispute would not fall in that, category. It already stood transferred to certain parties before Settlement Scheme No. VIII came into the field and the transfer was interfered with for the limited purpose of examining the entitlement of the parties in litigation afresh, No outsider could be introduced. The reopening of the case was subject to this vital limitation. The limitation squarely bit the petitioner, for he could not on the strength of a for-filed after the remand order claim as of right to be considered for the property. Not only that the property was not available, the re‑examination of the case had to be in terms as ordered by the Appellate Authority i. e. to determine the entitlement of the parties before the Appellate Authority. There is no merit in this petition, which is dismissed. Petition dismissed.