1989SCMR839 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court is directed against the judgment dated 11‑2‑1980 of the Lahore High Court; whereby in an urban settlement matter the orders passed by the Settlement Authorities in favour of the appellant were set aside, in its Constitutional writ jurisdiction. The facts and circumstances of this case and the reason for granting leave to appeal are as follows:‑‑, "Property No.l/6 to 1/11 Kalaswala, Tehsil Pasrur, District Sialkot, had been transferred to Abdus Sattar, respondent No.4, on 12‑12‑1960. The transfer documents issued in his favour showed the extent of the area as 6 marlas. He sold the property in 1967 to Muhammad Ishaq, respondent No. l, by a registered sale‑deed in which also the area was shown to be six marlas. The petitioner (appellant) applied in 1974 for transfer of an area measuring 3 marlas 64 sq. ft. on the basis of his possession, which was allowed and a P.T.D. issued in his favour on 3‑4‑1975. The respondents, however, disputed the transfer of the plot in favour of the petitioner (appellant) on the ground that the same formed part of their plot. They failed before the Settlement Authorities but succeeded before the High Court, where their writ petition was accepted. "

2. Leave to appeal is granted to consider, inter alia, whether the High Court was justified, in the circumstances of the case, to hold that the plot transferred to the respondent exceeded 6 marlas despite the express mention of that area not only in the transfer documents but also in the sale‑deed itself." We have heard both the learned counsel, at some length. The original record has also been perused. Although Abdus Sattar, the transferee of the 6 marlas plot, had asked for 7 marlas in his application but by the order dated 15 12‑60, the original of which has now been seen by us, the officer concerned transferred to him only six marlas. The subsequent documentation in the office of Settlement Authorities also clearly shows that Abdus Sattar was transferred 6 marlas only. Not only this, Abdus Sattar when alienating the plot in favour of Muhammad Ishaq, through registered deed, also mentioned only 6 marlas. As against this, some circumstances have been mentioned in the impugned judgment so as to show that the present appellant (who was respondent before the High Court) was estopped by his conduct to say that only 6 marlas were transferred to Abdus Sattar. Such a ground could have been used against the writ petitioners and in the circumstances of this case it could not have been used against the respondent; because the former were seeking a discretionary relief for upsetting the orders passed in favour of the latter‑the present appellant. Some other technical grounds have also been taken note of in so far as the transfer of about 3 marlas to the present appellant is concerned on the basis that it was in excess of the 6 marlas transferred to the respondents' side. The writ petition having been filed by the respondents' side they could not have relied on technical and procedural aspects so as to deprive the appellant of the area in dispute; because undoubtedly it did not form part of the area transferred to the writ petitioners. That being so the impugned orders could not have been passed, firstly, because the area in dispute had not been transferred to the writ petitioners, secondly, because they had no locus standi in the matter in case it was in excess of their transfer, and thirdly, the discretion in the facts and circumstances of this case, could not have been exercised in their favour. Accordingly, this appeal is allowed and the im a ned judgment is set aside with no order as to costs. AA./A‑426/S Appeal allowed.