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Civil Petition for Special Leave to Appeal No. 334 of 1967, decided on 11th October. 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 19th June 1967, in Letter's Patent Appeal No. 116 of 1963).
----Sched., Part I & S. 2(12)‑Settlement Authorities competent to declare which part of premises should be shop and which a house.
M. S. Baqir, Advocate Supreme Court instructed by Raja Abdul Razzaque, Attorney for Petitioner.
Nemo for Respondents.
Date of hearing : 11th October 1967.
The dispute in this case relates to premises No. 170/2, Ward No. 9, Lyallpur. It consists of two shops and a residential portion. The shops have been disposed of by auction and there is no dispute with regard to their disposal. The. dispute now is confined to the residential portion.
The petitioner was in possession of a portion thereof but the major portion was in the possession of one Maula Bakhsh. The portion in possession of the said Maula Bakhsh was original ly allotted in the name of his son Wali Muhammad but the name of Maula Bakhsh was also included in the allotment order on the 1st of May 1958. The petitioner, however, took no step to have his own possession regularised.
The Deputy Settlement Commissioner divided the premises into two portions, transferred one to the petitioner and the other to Maula Bakhsh. But on appeal this order was set aside by the Additional Settlement Commissioner and the entire residential portion was transferred to Maula Bakhsh, presumably on the ground that the petitioner had already been transferred another shop with a chaubara over it. A revision against this order was also dismissed. The petitioner thereupon challenged the order by a writ petition in the High Court. The High Court found that the petitioner, though a claimant, was a non‑allottee, while the said Maula Bakhsh was. a claimant allottee. He was, accord ingly, held to have been rightly preferred over the petitioner in the matter of the transfer of the residential portion.
The petitioner went up in Letters Patent Appeal without any success. He now seeks Special Leave to Appeal. Three points have been urged on his behalf in support of this petition.
The first is that the Settlement Authorities and the High Court were wrong in taking the view that the shop and .the chaubara transferred to him were two premises, namely, a. shop and a house, which exhausted his claim. It is contended that the chaubara and the shop constituted a shop. But we are unable to accept this contention, as under .the second proviso to, subsection (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Settlement Authorities,' had every jurisdiction to declare as to which part of a premises shall be deemed to be a shop or a house. The Settlement Authorities having treated it as a separate residential portion it cannot be said that the shop and the chaubara formed one unit.
The next contention urged on behalf of the petitioner is that the Settlement Authorities were wrong in holding that he was a non‑allottee. This, however, is finding of fact based upon adequate evidence. It could not, therefore, be disturbed by the High Court in the writ jurisdiction. He based his claim as an allottee upon an allotment chit said to have been issued but he could not produce even such a chit. The entry in the survey register merely showed that he was in possession. It did not establish that he was an allottee of the premises.
The last contention advanced on his behalf is that under the law if he was entitled to more than one premises he had an option to choose as to which he would retain. This option had not been given to him. This question does not arise, for, in respect of the premises in dispute he being a non‑allottee had no right thereto as against a claimant allottee. No question of option, therefore, arose.
In these circumstances, there is no substance in this petition which is, accordingly, dismissed.
Leave refused.
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