1980 PLP 923 (SCMR)

DORAB PATEL J‑‑The dispute in this petition for leave relates to a house on Napier Road in Karachi, which has three units each of which has its own independent staircase, The building was evacuee building and each of the three unit, were transferred by the Settlement Department as separate houses. In the events that happened, House No. 1/8 was transferred to one Mst. Willayat Begum, the mother of the petitioner and of one Ashiq Ali. Mst. Willayat Begum obtained the P. T. O. for this house in her lifetime. And, according to Mr. Abbas, although there was no construction on the roof of the house, she made a hole in the roof presumably in order to use it as a terrace in summer, and, according to learned counsel the access to the roof was through a ladder set up in a room of the house and not by a ladder from the wall of the staircase of the building. In the events that happened, the third respondent was transferred an adjoining House No. 2/3 which was a room on the roof of Unit No. 2 which adjoined Unit No. 1/8 which had been transferred to Mst. Willayat Begum. After obtaining the transfer of this House No. 2/3, the third respondent enlarged it and encroached on the roof of the petitioner's house, namely, 1/8, therefore, she filed an application before the Deputy Settlement Commissioner for an order to direct the third respondent to remove the structure which the third respondent had illegally built on the roof of her house 1/8. But, as this application was dismissed, she filed an appeal, which was dismissed by an Additional Settlement Commissioner, therefore, she filed a revision before the Settlement Commis sioner and whilst the Settlement Commissioner accepted the third respondent's claim that house No. 2/3 had been transferred to him, he remanded the case to the Deputy Settlement Commissioner for the proper demarcation of the boundaries of House No. 2/3 and house No. 1/8. On remand, the Deputy Settlement Commissioner rejected Mst. Willayat Begum's claim, so she filed a revision before the Settlement Commissioner, which met the same fate. Meanwhile, Mst. Willayat Begum died therefore, the petitioner who was her daughter, filed a writ petition in the Sind High Court against these orders of the Settlement Department, A copy of the writ petition has been sup pressed but it is clear from the judgment under appeal that the writ petition was filed by the petitioner on the basis that she was the sole heir of her mother Mst. Willayat Begum. The writ petition was contested by the respondents infer alia, on the ground that the dispute related to questions of fact and was dismissed by the High Court on 29‑8‑1978. Hence this petition for leave, After hearing Mr. Abbas, we are satisfied that the dispute in the petition turns on questions of fact, which cannot be decided without evidence. There fore, the High Court rightly dismissed the writ petition on this ground. Additionally, Mr. Akhtar Mahmood, who appeared on behalf of the caveator submitted that Mst. Willayat Begum's son had sold his right, title and interest in House No. 1/8 in 1979 to the third respondent. Therefore, in these circumstances he submitted that the petitioner did not have the locus standi to prosecute her petition for leave and/or that the petitioner for leave was fit to be dismissed on the short ground that it suppressed the fact that the petitioner's brother was also one of the heirs of Mst. Willayat Begum. Mr. Abbas claimed that Mst. Willayat Begum had gifted the house in dispute to the petitioner, but Mr. Abbas was compelled to admit that there was further litigation between the parties in which the petitioner title is in dispute and this petition is pending. As the petitioner's title is thus in dispute, on this short ground alone, it is not a fit case for the grant of special leave, therefore, we would not .go into the other submissions advanced by Mr. Abbas as they relate to the merits of the dispute between the parties which are sub judice in the lower Courts. The petition, therefore, fails and is dismissed. Petition dismissed.