1976 PLP 174 (SCMR)

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑-- ‑‑ Sched., Part I ‑Transfer of house‑‑Petitioners failing to establish inclusion of disputed chaubara in shop purchased by them ‑Respon dent's entitlement to transfer of chaubara established‑Substantial justice having been done, fact of separate order not being passed for transfer of chaubara in consequential _ Inordinate delay in challeng ing order of Settlement Authority and order attaining finality‑ Petition for leave to appeal dismissed. Khawaja Mushtaq Ahmad, Advocate-on Record for Petitioners. MUHAMMAD HALEEM, J‑This is a petition for special leave to appeal from the judgment dated 13th of March 1975, of the learned Single Judge of the Lahore High Court by which it was dismissed. The dispute relates to property bearing No. 34, which is comprised of a shop and a chaubara and is situate in the Grain Market in the City of Sargodha. The chaubara is on the top of the shop. The shop was auctioned on 21st of May 1960, and it was purchased by the first petitioner who gave the highest bid of Rs. 71,

000. Sine the first petitioner was unable to pay the entire price, he associated with himself the other petitioners and after payment of the price, a P. T. D. was issued in their favour on 4th of September 1962. Both the shop and the chaubara was in the occupation of Muhammad Zafar Ullah, a local, against whom the petitioners instituted ejectment proceedings before the learned Rent Controller, Sargodha. It is the case of the petitioners that Muhammad Zafar Ullah allowed Mst. Razia Begum, the predecessor‑in‑interest of respondents 3 to 5, to occupy the shop and the chaubara during the pendency of the proceedings and while Muhammad Zafar Ullah was ejected from the shop, entire chubara continued to remain in the occupation of Mst. Razia Begum. After the demise of Mst Razia Begum, respondents 3 to 5 filed a Miscellaneous Application in 1937 before the Deputy Settlement Commissioner, Sargodha, seeking for the issue of transfer documents in respect of the chaubara. The Deputy Settlement Commissioner by leis order dated 30th of August 1967, held that the chaubara was not transferred to Mst. Razia Begum and there fore, refused to issue the transfer documents. He also held in the order that the chaubara must be taken to have been transferred alongwith the shop to the petitioners. Being thus aggrieved, respondents 3 to 5 filed an appeal before the Additional Settlement Commissioner, Sargodha, who accepted their appeal by order dated 8th of May 1968, and directed the issue of transfer documents to them. Thereupon, the petition filed a Revision before the Settlement Commissioner who rejected the application by order dated 13‑9‑1968 on the ground that he was competent to review the order of Malik Fateh Khan, his predecessor. It was urged before the learned Single Judge that the Additional Settlement Commissioner misconstrued the order of Malik Fatah Khan dated 16th of June 1960, as one relating to the transfer of the chaubara, which in fact was not so as it only rented to transfer of a house to Mst. Razia Begum, the predecessor‑in‑interest of respondents 3 to

5. According to the petitioners the chaubara was the integral part of the shop and could not be a part of the house. The learned Single Judge rejected the contention on the basis that the shop and the chaubara were distinctly shown for disposal in the auction list and was the shop alone which was suctioned and purchased by the petitioner, therefore, tit cannot claim that it also included the chaubara another ground which weighed with the learned Single judge was that the transfer of the choubara spas upheld by Malik Fateh Khan which order was not challenged and therefore, it was not open to the petitioners now to assail that order after the expiry of 15 years. He also held that since the respondents are claimants airs in possession of the chaubara they are entitled to its transfer. The learned counsel for the petitioners urged the same contention but it has no substance. The petitioners have failed to that chaubara was included in the chop purchased by ham. Besides, responder s 3 to 5 have established their entitlement to the transfer of the chaubara arid it matters not even if there is no separate order of transfer for substaial justice has been done. We agree with the learned Single Judge that there is an inordinate delay in challenging the order of Malik Fateh Khan which had attained finality and on this ground alone the petition was liable to be dismissed. Hence no legitimate exception can be taken to the impugned order. For these reasons we do not see any justification to grant leave to appeal and the petition is dismissed. Petition dismissed.