1982 PLP 973 (SCMR)

DORAB PATEL, J. The petitioner is a refugee and a shop was transferred to him in Multan, presumably on his C. S. form. The dispute in this petition, however, relates to another property in Multan bearing No. 570,in Ward No.

3. The petitioner claims that this property is a house which had been allotted to his father, therefore, oil his father's death, when Settlement operations began, he filed the usual C. H. form for it and obtained the P. T. O. for it. However, despite the P. T. O. in his favour, the property was treated as a shop and put up for auction. And, it was auctioned in due course to the private respondents, in this petition, therefore, the petitioner had challenged the order of auction in an appeal before the Additional Settlement Commissioner, which was dismissed. He then filed a revision and the revision was accepted by the Settlement Commissioner. As the auction in favour of the respondents was thus cancelled, they filed a writ petition in the High Court against the Settlement Commissioner's order. This writ petition was dismissed in limine on 22‑11‑1965. The respondents challenged the dismissal to limine of their writ petition in a Letters Patent Appeal which met the same fate. Therefore, they filed a petition for leave in this Court and the case was remanded to the Settlement Commissioner, It is unfortunate that the order of this Court disposing of the appeal of the respondents has not been filed. Be that as it may, learned counsel admitted that the same had been remanded by this Court to the Settlement Commis sioner in order to examine the question whether property No. 570 was a house or a shop. And, if the finding was that the property was a shop, then the petitioner would not be entitled to it and the auction in favour of the respondents would be upheld. In pursuance of this order, the Settlement Commissioner heard the parties on 7‑6‑1974 and after examining the records, he held that the property in dispute was a shop consisting of a shop on the ground floor and a Chaubara over it. He also held that the property was situated in a commercial area and he pointed out that the father‑in‑law of the petitioner had made a statement on oath on 8‑10‑1960 that he was running a shop on the ground floor in which he carried on the business of building paint. The Settlement Commissioner also noted that the very P. T. O. on which the petitioner relied stated that the transfer was of a shop. He, therefore, dismissed the petitioner's revision application, and, therefore, in accordance with the order of this Court, the auction of the property in favour of the private respondents in this petition was automatically upheld. Aggrieved by this order, the petitioner filed a writ petition in the Lahore High court, but the learned Judge, who heard the writ petition pointed out that the case had been remanded by this Court to the Settlement Commissioner to examine the question whether the property in disputed was a shop or a house. And as the Settlement Commissioner had after examining the evidence reached the conclusion that the property was a shop, the learned Judge held that he could not interfere in the High Court's constitutional jurisdiction with the finding of fact given by the Settlement Commissioner that the property was a shop. Accordingly as the petitioner could not possibly be transferred two shops under the Settlement Scheme, the learned Judge dismissed the petitioner's writ petition in limine by his order of 16‑12‑1974. Hence this petition for leave. Learned counsel admitted that the petitioner's father‑in‑law had made a statement on oath that he had been running a shop in the suit premises. As this is evidence in support of the finding of the Settlement Commissioner that the property in dispute is a shop, learned counsel submitted that shops could be run in residential premises and in order to convince us that the premises in dispute were residential, he stated that the petitioner had relied before the Settlement Commissioner on the birth certificates of his children, because it was stated in these certificates that the children had been born in property bearing No. 570 (namely the suit property). As admittedly there is a Chaubara over the room in which the petitioner's father‑in‑law runs a shop, at the highest, the birth certificates were a piece of evidence in support of the petitioner's claim that the property in dispute was a house and not a shop. But, in rejecting the claim of the petitioner, the Settlement Commissioner observed in his order :‑ "I have heard the arguments by both the parties and have perused the record of both the properties, carefully. It is established from a perusal of record that the two properties 318/3, and 570/3, Multan, are of identical construction. Both consist of a shop at the ground floor and Chaubara 'on top. They are also situated in a commercial area." The learned Settlement Commissioner then observed that the petitioner had taken advantage of the fact that he had somehow managed to obtain possession of this shop, and, therefore, he dismissed the petitioner's revision: The question whether the property in dispute was a shop or a house, was a question of fact within the exclusive jurisdiction of the Settlement Commissioner. And, as the petitioner's father‑in‑law was running a shop in it, this was clearly a circumstance against the petitioner's claim that the property was a house. Therefore learned counsel submitted that the Settle ment Commissioner had erred in law in holding that the property was situated in a commercial area. On the contrary, according to learned counsel, as the property was situated in a residential area, nothing turned on the fact that his father‑in‑law ran a shop in a house. But, although learned counsel challenged the finding of the Settlement Commissioner, `I did not even attempt to refer us to any evidence whatsoever which could show that property No. 570 was situated in a residential area. And, on the other hand, the learned Single Judge, who had the advantage of examining the records of the Settlement Department, has pointed out in the impugned order that the finding of the Settlement Commissioner that the property to dispute was a shop situated in a commercial area, was supported by the evidence on the record. Therefore, the learned Judge rightly dismissed the petitioner's writ petition in limine and there is no merit whatever in this petition for leave, which is dismissed. Petition dismissed.