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Civil Petition for Special Leave to Appeal No. 40‑P of 1971, decided on 8th December 1972.

(On appeal from the order of the Peshawar High Court, dated the 11th May 1971, in Letters Patent Appeal No. 6 of 1971).

Constitution of Pakistan (1962),

Art. 58(3)‑Objections urged during hearing of petition for special leave to appeal‑Never raised by petitioner at any earlier time, nor even in petition for special leave to appeal‑Not allowed to be raised.

S. Safdar Hussain, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing t 8th December 1872.

The dispute relates to a house that had been transferred to respondent No. 4 Muhammad Younis Barbar. Muhammad Younis had claimed that the petitioner who had been transferred the shops adjacent to the house of respondent had encroached on a portion of the house.

It appears from the order of the Settlement Commissioner, Peshawar, dated the 29th October 1966, that the Additional Settlement Commissioner, after having inspected the spot, held by his order crated the 11th July 1966, that the petitioner was in unlawful occupation of a portion of the house belonging to respondent Muhammad Younis. The Additional Settlement Commissioner had referred to a plan prepared by him in this connection. The Settlement Commissioner, however, did not find the plan on record and he accordingly remanded the case to the Additional Settlement Commissioner for deciding afresh in the light of the observation made by him. The relevant observation was as follows :‑

"There is nothing on the file to show that the parties were given any chance for adducing evidence is support of their contentions. It is essential that the plan of the property in the office of Cantonment Board should have been inspected before deciding the matter."

On remand the Additional Settlement Commissioner again inspected the site rind found that a portion of the house as mentioned in the plan prepared on the 9th July 1966, and marked Exh. P. A. was, in fact, unauthorisedly occupied by the petitioner, and he, accordingly, decided the matter by his order dated the 20th July 1968.

It has now been contended on behalf of the petitioner that the Additional Settlement Commissioner failed to comply with the order of remand passed by the Settlement Commissioner on the 29th October 1966, inasmuch as the plan referred to in the order of the Additional Settlement Commissioner never existed and that the Additional Settlement Commissioner never Inspected the record of the office of the Cantonment Board. A reference to the order of the Additional Settlement Commissioner dated the 20th July 1968, makes it abundantly clear that the plan, in fact, did exist and that the Additional Settlement Commissioner, in fact, looked at it. Furthermore, it appears clear that the Additional Settlement Commissioner had also examined the relevant records of the case.

These objections were never raised by the petitioner at any point of time earlier. He never mentioned it in his revisional application before the Settlement Commissioner nor in his petition before the High Court nor even in his leave petition before this Court. The petitioner, therefore, cannot be permitted to raise this question. Besides, we have the doubt in our mind that the plan in question did exist and that the Additional Settlement Commissioner did consult it when he passed the order. This is entirely a question of fact and the High Court was, therefore, right in saying so. The learned counsel's contention to the contrary is therefore not tenable.

The petition is accordingly dismissed.

Petition dismissed.

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