1994 PLP 1251 (MLD)

SHAIKH ABDUL MANNAN, J.

This letters patent appeal is directed against the order of the learned Single Judge dated 18-10-1971 dismissing the Writ Petition No.1155-R of 1964 in respect of the transfer of House No.P/230, Street No. 5, Douglaspura, Lyallpur transferred to respondent. Nabi Bakhsh.

2. Briefly stated, the disputed house was transferred by the Deputy Settlement Commissioner on 22-10-1959 in favour of the respondent, the only applicant for the transfer thereof as at that time the appellant did not file any form having already submitted application in Form `E' on 5-12-1959 under Settlement Scheme No.V. On 13-12-1959 lots were drawn but without any luck for the appellant. In this view of the situation he filed belated C.H. Form on 22-2-1960 and the same was entered by the Additional Settlement Commissioner subject to the condition that "if he was found to be an allottee or in undisputed possession of the house and secondly that the said house has not been included in the list of earmarking". The transfer of the house in favour of the respondent by the Deputy Settlement Commissioner on 22-10-1959 was challenged, and appeal of the appellant Shadi Khan was accepted on 29-6-1960 by the Additional Settlement Commissioner and the case remanded mainly on the ground that the order of transfer was not available on the file.

3. After post-remand proceedings the Deputy Settlement Commissioner again transferred the house in favour of the respondent on the ground that C.H. Form was filed in time and the respondent was also in possession of part of the property through his sons allottees .from 28-9-1947. In case of Shadi Khan, it was held that his possession was disputed and that he was also not the allottee. Shadi Khan again filed an appeal which was disposed of vide order dated 18-6-1962 of the Additional Settlement Commissioner and transferred the house to evacuee pool for the purpose of auction, as according to this officer the possession of the respondent Nabi Bakhsh through his sons was not proved. As to the claim of Shadi Khan he held as hereunder:-.-- "The appellant (Shadi Khan) filed a belated CH Form. The house was then already disposed of. His belated CH Form was conditionally forwarded to D.S.C. The appellant (Shadi Khan) did not fulfil any of the prescribed conditions. Apart from that he forfeited his right to get this house by not filing CH Form and instead participating in earmarking proceedings."

4. Against this order both the parties filed two different revision petitions which were disposed of by a single order dated 15-5-1964 whereby the revision petition of the respondent was accepted by the learned Settlement Commissioner considering his possession of a part of the house. It was observed that "Nabi Bakhsh was entitled to put in his CH Form in respect of House No.230 on the basis of possession of his son Ali' Muhammad". It was also observed by the Settlement Commissioner that "the learned Additional Settlement Commissioner has reversed .the order of Syed Iqbal Hussain, D.S.C., Lyallpur so far it relates to House No.230 in the name of Nabi Bakhsh without affording him any opportunity to answer the case against him.. I am, therefore, inclined to hold that he should be given an opportunity of establishing .the fact before the D.S.C., Lyalipur that he had been in possession of a part of. House No.230 before 20-12-1958".

5. Revision petition of Shadi Khan was dismissed and on the above facts the case was remanded to the D.S.C. for fresh decision after determining the possession of Nabi Bakhsh. After recording evidence the Deputy Settlement Commissioner vide his order dated 25-6-1964 again transferred the disputed house in favour of respondents and this order was not challenged in appeal. Finally the appellant filed a writ petition out of which present LPA has arisen and the same was dismissed by the learned Single Judge on 18-10-1971 by the impugned order.

6. During the pendency, the writ petition was dismissed for non- prosecution and the respondent contested the restoration tooth and nail and finally the learned Judge overruled the objection of the respondent by holding that he was inclined to take equitable view of the matter and thereafter the case was heard on merit.

7. Number of contentions were raised as is evident from para. 5 of the impugned order but the learned Judge did. not deal with each and every contention because he proposed to decide the matter on a different plane and this in manifest from para. 6 of the impugned order. Finally, the learned Single Judge dismissed the writ petition relying upon 1968 SCMR 475 at page 483 (Asghar Hussain and another v. Dr. A.H. Harhid Musa and another) where it was laid down that a person participated-in the earmarking scheme he forfeits his rights to claim the property as against CH Form. It was held in the precedent case that "The lottery was drawn on the 21st December, 1959. The decision in the appeal was announced on the 3rd January, 1960 and went against him. This rendered his participation in the earmarking scheme effective in all respects, i.e. it would be deemed that his application in Form CH was cancelled as from the filing of his Form `E' application, and he had to proceed with the scheme till its final termination, that is to say, till transfer of the house he drew was made to him. The only circumstances in which substitution of a house drawn in an earmarking scheme by another house are permissible are those specified in the Central Government's instruction of the.7th April, and 'the 28th July, 1960, mainly, where the house drawn in a participant's favour could not be transferred to him on account of its acquisition by the Government or for any other reason, such claimant would be entitled, to choose another house out of an earmarking or an auction list under certain conditions. Mere refusal of a house by the successful claimant in an earmarking cannot be accommodated within the circumstances cited above."

8. In the aforementioned circumstances the respondent in the precedent case having participated in the earmarking scheme was disentitled to claim the house as against his CH Form. It will be interesting to note that the appellant admittedly filed belated CH Form on 22-2-1960 after he was unsuccessful in the earmarking on 13-12-1959 while `E' Form was submitted on 5-12-1959 and this CH Form was entertained subject to the condition of the appellant being in undisputed possession of the house.

9. Learned counsel vehemently assails the findings of fact as to the possession of the respondents but this being disputed question of fact the plea was not entertained and this view has not been shown to be contrary to law. It appears that the evidence was recorded by the Settlement Authorities and it was held that the respondent was in lawful possession and rightful claimant for the transfer of the house.

10. Having given anxious consideration to the submissions of the learned counsel and the well-reasoned judgment we do not find any room for interference in the impugned order particularly when rights have been conferred on the respondent for the last several years in the shape of a permanent settlement. For the reasons stated above there is no force in this appeal which is dismissed but without any order as to costs. AA./S-437/L Appeal dismissed.