1985 PLP 1138 (MLD)

ABDUL SHAKURUL SALAM, J.--The case of the appellants is that House No, 125-S-9 Baghbanpura, Lahore was initially transferred in favour of Mst. Sardar Bibi, respondent No.2 by the Deputy Settlement Commissioner. On the appeal of the appellant No.1, the house was divided into two portions. The portion in possession of the appellant No.l that is to say ground-floor was transferred in his favour and the upper portion in possession of Mst. Sardar Bibi, respondent No.2 was transferred to the latter by the Additional Settlement Commissioner. Both sides filed revision petitions which were dismissed by the Settlement Commissioner, the result being that the appellant No.l got the ground floor of the house and the respondent No. 2 got the upper floor of the house from the Settlement Authorities. The respondent No.2 filed Writ Petition No. 329-R of 1963 for having both the floors of the house with a view to have the entire house. The petition was dismissed in limine on 7-2-1963. After several years the respondent filed a civil suit for a declaration that the order of the Settlement Authorities had been obtained by fraud, misrepresentation etc. etc. The matter was brought before the High Court in Civil Revision No. 374 of 1971 and the learned Judge Mr. Justice Aftab Hussain a5 then and now the Chief Justice of the Federal Shariat Court upheid the transfer of the ground-floor in favour of appellant No. 1 and the upper floor in favour of respondent No.2 and further held that the civil Court had no jurisdiction whatsoever in the matter. The plaint was directed to be returned to the plaintiff. This is, vide order, dated 12-3-1976. Litigation was still being carried on by respondent No.2 in the civil Courts when a revision petition filed by the appellant No.1 was admitted in the High Court and the proceedings before the lower Court stayed. The respondent No.3 has filed an application before the Chairman, Governor's Inspection Team, Punjab, Peoples House, Lahore claiming to be a donee of the upper portion of the house from respondent No.2 which portion stands transferred in favour of the appellant No.l and has requested that "an inquiry in the subject case may please be ordered through a Military Court in order to provide me a speedy justice as regard to the legality of the ownership of lower portion of our house and if proved that the accused is an illegal occupant the rights of our property be restored to me." The application is dated 3-7-1982. On this, the appellants were called upon to file a reply. They filed a writ petition which had been dismissed for the reason that "the petitioners have only been called upon to submit their reply to the petition filed by respondents Nos.2 and

3. At the moment, the petitioners have not been harrassed in any way nor any action has been taken against them." The petition was accordingly disposed of by the learned Single Judge vide order dated 23-10-1982. Hence this appeal.

2. Learned counsel for the appellants has made various submissions regarding the validity of issuance of notice to the appellants and the competency of the authority to do so.

3. Learned counsel for the respondent No.l has submitted that the appellants had only been called upon to file a reply and they should do so.

4. Learned counsel for the respondents Nos. 2 and 3,has submitted that since only a notice had been issued to the appellants, no writ is called for. He has referred to Virasat Ullah v. Bashir Ahmad, Settlement Commissioner (Industries) and another 1969 S C M R 154 and Muhammad Yusuf and others v. Mst. Hawa 1969 S C M R

513. He has also submitted that the Intra-Court Appeal is not competent in view of Yusuf Ali Khan, Bar-at-Law v. Muhammad Javed lqbal Cheema, ,Esq. Additional District Judge, Lyallpur and 6 others v. Settlement Commissioner and 2 others P L D 1982 Lah. 98.

5. After hearing the learned counsel for the parties and going through the record with their assistance, we are of the view that the learned Single Judge had rightly disposed of the writ petition as no action had been taken against the appellants and they had only been called upon to file a reply to an Application presented by the respondent No.3. The heavy reliance of the learned counsel for the appellants on the judgment of Mr. Justice Aftab Hussain of the Lahore High Court as then and now the learned Chief Justice of Federal Shariat Court that the transfer of the house between the appellant No.l and respondent No.2 by the Settlement Authorities had been upheld by the High Court in Civil Revision No. 374 of 1971 is an apt plea which should be taken alongwith others available under the law in reply to the notice issued by the respondent No.l to the appellants. It is obvious that these will be given due consideration. The Constitutional petition was clearly premature and the learned Single Judge had rightly disposed that of accordingly. The appeal is thus disposed of leaving the parties to bear their own costs in the circumstances. H . B . T . Appeal dismissed.