1981 PLP 974 (SCMR)

A. R. Shaukat, Senior Advocate Supreme Court and Ch. Muhammad Aslam, Advocate-on-Record for Respondents Nos. 1 and

2. Date of bearing: 15th March, 1981. ABDUL KADIR SHAIKH, J. -The dispute in this case concerns a portion of Shop No. 2828/8-M, Multan. The entire shop was originally occupied by Ghulam Muhammad Gondal, a local, and the petitioner who is a claimant displaced person occupied a portion of the shop and it was transferred to him by the Deputy Settlement Commissioner on his C. H. form. There is no dispute about this portion and the controversy relates to the other portion of the shop which was also occupied originally by Ghulam Muhammad Gondal and was transferred to one Abdul Hamid on 20th December, 1959, and then to one 1qbal. Later on, this portion was ordered to be auctioned by the order of the Deputy Settlement Commissioner dated Ist May, 1962. On 30th October 1966, the petitioner applied for the transfer of this portion on the ground that it was an integral part of the portion already transferred to him. The Deputy Settlement Commissioner accepted this plea and transferred this disputed portion to the peti tioner by the order dated 9th November 1973. This order was challenged by Javaid Ashraf, respondent 2, on the ground that he was in possession and was entitled to its transfer under Settlement Scheme No. VIII. The dispute ultimately came before the Lahore High Court at the instance of Javaid Ashraf in Writ Petition No. 1907-R of 1976. The High Court set aside the order of the Deputy Settlement Commissioner dated 9th November, 1963, with the direction that the case be decided, afresh, particularly as regards Javaid Ashraf's claim that he bad applied for the transfer of the disputed portion of the shop under a Settlement form. On remand, the Deputy Settlement Commissioner held, by the order dated 3rd April, 1980, that Javaid Ashraf had filed the requisite form and he was entitled to it s transfer. This order was then challenged by the petitioner in Writ Petition No. 733-R' of 1980 which was dismissed by the High Court. The petitioner now seeks special leave to appeal. Mr. Kamal Mustafa Bokhari, learned counsel appearing in support of the petition submits that since the Deputy Settlement Commissioner had held by the order dated 9th November, 1973, that the shop was a single commercial unit, it was not open to the Deputy Settlement Commissioner to review that order and give a finding to the contrary. Learned counsel further submits that the learned Single Judge in the High Court has ignored the fact that Javaid Ashraf's claim that he had filed a Settlement form for the transfer of the disputed portion is not borne out by the record, and learned Deputy Settlement Commissioner erred in relying upon only an alleged receipt. Learned counsel finally submits that Javaid Ashraf was not in possession of the shop on the crucial date i.e. 20th December, 1958, and he is not, therefore, entitled to the transfer of the premises. Mr. A. R. Shaukat, learned counsel for Javaid Ashraf pointed out that petitioner's claim to the transfer under the C. H. form filed by him was confined to only that part of the shop which was in his possession and was transferred to him on Ist May, 1962, and the other portion was to be disposed of by auction, and it was hardly open to the learned Deputy Settlement Commissioner much afterwards, on 9th November, 1973, to treat both the portions of the shop as a single commercial unit. There is much force in this submission. Moreover, as stated earlier, the dispute between the parties relating to the transfer of the portion of the shop in question had come up before the High Court in Writ Petition No. 107/R of 1976, and it was allowed by the order dated 4th November, 1979, with the direction that the claim of Javaid Ashraf that he had filed a Settlement form for the transfer of the disputed portion of the shop should be examined. This order adversely affected petitioner's claim to the disputed portion of the shop as a single unit, and in the proceedings that followed on remand of the case, he could not have expected that the disputed portion would be transferred to him in case the assertion made by Javaid Ashraf that he had filed a Settlement form was found to be correct. It was open to the petitioner to challenge that order of the High Court dated 4th November 1979, before this Court on the ground that both the portions of the shop really constitute one single commercial unit. He chose not to do so. On these facts and also the reasons that prevailed with the learned Single Judge in the High Court, he rightly refused to exercise the constitutional jurisdiction invoked by the petitioner . The petition is, therefore, dismissed in limine. Petition dismissed.