1983 PLP 1285 (SCMR)

SHAFIUR RAHMAN, J.‑The petitioner, transferree of House No. AA/ 78‑A in Mohalla Shah Chan Chiragh, Rawalpindi, seeks leave to appeal against the judgment of the Lahore High Court, dated 2‑6‑1979 whereby a constitutional petition filed by him challenging the deletion of a portion of property was dismissed. The disputed portion of the property was at first the subject‑matter of litigation between its occupant and Mst. Safia, the transferee of the adjoin ing house. Both the contesting parties in that round of litigation claimed that portion to be a part of property transferred to Mst. Safia Begum. The occupant claimed a better entitlement to the transfer of that portion which was in his occupation and denied any right of Mst. Safia Begum to get it transferred. He failed. Thereafter the petitioner picked up the dispute and the second round with him came to an end with the order of the Additional Settlement and Rehabilitation Commissioner, Rawalpindi, on 14th April, 1960. In the operative part of that order the following decision was given:‑ "As a result of the above decisions the portion in his possession whether it was a part and parcel of AA/78 or AA/78‑A, stood transferred to the appellant. I doubt very much if after the decision of higher authorities the Deputy Settlement Commissioner is at all competent to transfer her portion to some other person by assigning it a separate number. It might be correct that the portion in possession of Abdul Rafiq is a part and parcel of AA/78‑A but in view of the orders of the higher Courts transferring it to the appellant, the lower Courts are not competent to transfer it to Abdul Rafiq. The only remedy with Abdul Rafiq was to get the matter clarified by the Court who actually decided the case against him or to pursue it with the higher Court. As the case stands at present, of course, the portion in his possession stands transferred to Mst. Safia Begum. If he is‑ aggrieved‑ by it he can pursue his legal remedy, if so advised. As far as House No. AA/78‑A leaving aside the portion in possession of Abdul Rafiq is concerned, of course it stands transferred to Abdul Rashid son of Hassan Muhammad and I see no reason to interfere with the order ‑under appeal, with regard to this portion. With these remarks the appeal stands partly accepted. The petitioner did not seek any relief against this order but again started from the bottom by disputing the apportionment of rent and determination of value. He succeeded on 20th March, 1969, when the Additional Settlement Commissioner ordered reduction of the price of the property transferred to him and increase in the property transferred to Mst. Safia assuming that a part of the property transferrable to the petitioner stood transferred to Mst. Safia, such transfer being not liable to interference except to the extent of revaluation of the properties. The Settlement Commissioner passed this order on 18‑12‑1969 holding that the petitioner was never a transferree and he had satisfied himself with the order passed in 1962. The learned counsel for the petitioner contended that in the first round relating to this disputed portion between Mst. Safia and Rafiq the petitioner was not a party and hence that decision should not bind him. As regards the subsequent proceedings he has stated that the matter has not been viewed in its proper perspective nor has the controversy been, settled or resolved with an independent and open mind. He has drawn our attention to the structural features of the property, its rental and occupancy at the time of Independence and its location and use. The order of the Additional Settlement Commissioner, dated 14th April, 1962, the operative part of which has already been reproduced an which was not subjected. to any challenge, binds the parties and in view of it existence and legal effect the petitioner could not lay a claim to the portion as a part of the property transferred to him. He could not achieve this object by raking up a controversy on a different and incidental matter, that is apportionment of rent. There is no merit in the petition and leave to appeal is refused, M. Z. M. Petition dismissed.