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Civil Petition No. 359 of 1977, decided on 21st September, 1978.

(On appeal from the judgment and order dated 24‑3‑77 of the Lahore High Court at Lahore in L. P. A. No. 553/66).

----Sched., Part 1‑Settlement authority transferring portion of house to M and altogether excluding S thereby from transfer of house, N. C. H. form of S thus standing rejected‑S not going up in appeal against such order‑S, held, deemed to have acquiesced in order passed against her and to have withdrawn from transfer and rightly disallowed to resile from such position.

Ghulam Mujtaba, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st September, 1978.

‑The petitioner Mst. Sakina deceased, now represented by her legal heirs, has filed this petition for leave to appeal from the judgment dated 24th of March, 1977 passed by a Division Bench of the Lahore High Court at Lahore in dismissing her Letters Patent Appeal under clause (10) of the Letters Patent.

The dispute in this case relates to a portion of property No. 28, Block No. 2, Khanewal. On the 26th of November 1959, the Deputy Settlement Commissioner, Khanewal, on the basis of a report submitted to him by his Assistant Settlement Commissioner divided the house into two portions and transferred the same to Mohammad Siddique, a brother of the petitioner on his C. H. form and Shabrati respondent No. 5, ignoring the N. C. H. form filed by the petitioner. There was no appeal or revision against this order which evidently attained finality between the parties.

In spite of this, it seems that the Assistant Settlement Commissioner, Khanewal in the course of certain partition proceedings passed two successive orders on 16th of February 1960 and 13th of April 1960 holding that Mohammad Siddique was not in possession of any portion of the house. On the other hand he found that Mst. Sakina Bibi was in possession of a room in the house and one Barkat had also surrendered another room in his possession in her favour. He therefore, excluded Mohammad Siddique from the transfer and inducted the petitioner as a transferee of the two rooms.

These orders gave rise to two appeals, one jointly filed by Mohammad Siddique and Shabrati and the other by Barkat respondent No. 4. On the 16th of March 1961, the Additional Settlement Commissioner upheld the finding that Mohammad Siddique though claimant was not proved to be in possession of any portion of the house. He further found that Mst. Sakina Bibi a non‑claimant did not produce any rent clearance certificate. He therefore, excluded both of them from the transfer of the property and directed the issuance of the P. T. Os. in favour of Barkat and Shabrati, respondents Nos. 4 and 5. On this Mst. Sakina petitioner and her brother Mohammad Siddique jointly filed a revision against the order. But this was dismissed by the Settlement and Rehabilitation Commissioner, Multan Bahawalpur Division on the 13th of May, 1961. He was of the opinion that Mohammad Saddique was not able to substantiate his contention that he was in possession of the property. They then jointly filed a second revision against the order. But that too was dismissed by the Settlement and Rehabilitation Commissioner with powers of the Chief Settlement and Rehabilitation Commissioner, Lahore, on the 7th of April, 1962. He observed that there was no proof on the record to show that Mohammad Siddique occupied any portion of the house for himself. Moreover, the form filed by him appeared to have been tampered with in respect of the number of rooms for which he had applied. In so far as Mst. Sakina Bibi was concerned she did not file any appeal against the order of the Deputy Settlement Commissioner who rejected her claim. The learned Chief Settlement Commissioner further remarked that "it is admitted by their counsel that Mst. Sakina Bibi is not in actual occupation of a room in any portion"

In these circumstances Mst. Sakina Bibi alone filed a writ petition under Article 98 of the Constitution of Islamic Republic of Pakistan against the impugned orders passed against her by the Settlement authorities. But on the 25th of February, 1966 a learned Judge of the Lahore High Court at Lahore dismissed her petition. She then preferred a Letters Patent appeal against the judgment which was also dismissed by a Division Bench of the Court on the 24th of March, 1977. In the appeal the Court took the view that her appeal was liable to be dismissed on the short ground that the Deputy Settlement Commissioner's order dated 26th of November, 1959 whereby her form had been rejected, held the field qua her and she had thereby acquiesced in the order and virtually withdrawn in favour of her brother. She could not therefore, subsequently agitate her cause more so after Mohammad Siddique had failed to establish his claim. Moreover, as recorded by the second revising authority it was admitted on her behalf that she was not in actual possession of any room in the house. The Court therefore, declined to interfere in the matter. Hence this petition for special leave to appeal.

We have heard the learned counsel for the petitioner. It cannot be denied that in the first instance on the 26th of February, 1959, the Deputy Settlement Commissioner had transferred a portion of the house to Mohammad Siddique and thereby she was altogether excluded from they transfer and her N. C. H. form stood rejected. She did not go up in appeal or revision against this order. As such, she was held to have acquiesced in the order thus passed against her and withdraw from the transfer. She was therefore, not allowed to resile from that position. Quite apart from the fact that whether or not her learned counsel in the second revision was justified in making the admission to the effect that she was not in actual occupation of any room in the house, she had no legs to stand upon on the first count found against her. The Settlement Authorities were, therefore, justified in excluding her from the transfer. We, therefore, see no good reason to interfere. This petition has no force and is dismissed.

Petition dismissed.

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