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Civil Petition No. 368 of 1975, decided on 5th February, 1980.

(On appeal from the judgment dated 4‑3‑1975 of the Lahore High Courts' in W. P. No. 798‑R of 1969).

----S. 6‑Petitioner filing L H form for transfer of evacuee house‑ No plea taken that it was a building site and later on petitioner himself raising a permanent construction thereon‑Personal inspection by D. R. C. showing same to be an Ihata (vacant site bound by wall and; not a residential house) and such fact verified from Excise and Taxation record‑Fact of any permanent construction having been raised on property by petitioner so as to entitle him to its transfer as a building site, held, not proved‑Petition dismissed.

Zafar Pasha Chaudhry, Advocate Supreme Court and Wajid Hussain, Advocate‑on‑Record for Petitioner.

Rao Muhammad Yousuf Khan (absent) for Respondents.

Date of hearing: 5th February, 1980.

‑‑This petition is directed against the order dated 4‑3‑1975 passed by a learned Single Judge of the Lahore High Court where by be dismissed the writ petition (W. P. No. 798‑Rj69) filed by the petitioner.

The relevant facts are that the petitioner, who is a local, bad submitted L. H. form for the transfer of Property No. 24‑B‑1, Sahiwal, but the same was rejected on 28‑10‑1959 by the Deputy Settlement Commissioner. An appeal was filed by the petitioner against the said order, which was Unsuccessful but the revision petition succeeded and the Settlement Commissioner by his order dated 10‑8‑1962 transferred the property in question to him. In the meantime, respondent No. 1 had purchased this property in open auction. He challenged the order of the learned Settlement Commissioner dated 10‑8‑1962 by filing a writ petition (W. P. No. 4525‑R/62) on the ground that he had not been heard before the revision petition was accepted. This plea was accepted by the High Court and the case was remanded to be heard afresh by the Settlement Commissioner. The learned Settlement Com missioner (Mr. Maui Din Khan) then heard the case and in a detailed order expressed the opinion that the property in dispute was only a vacant site bounded by a wall and was not a residential house. Hence it could not be transferred on the L. H. form filed by the petitioner and was rightly disposed of as an open vacant sight through auction. The petitioner's revision petition was accordingly dismissed by the above order passed on 29‑7‑1969).

Aggrieved by the said order, the petitioner then moved the Lahore High Court by a writ petition (W. P. No. 798‑R/69) and the petition was admitted to a regular hearing on 7th August, 1969, by the following order: ‑

"Admittedly the petitioner had applied as an L. H. form for the transfer of property bearing No. 24‑B‑1, Sahiwal. But his form was rejected on the ground that this was not a house bet a building site. In the meantime, the site was put to auction and purchased by respondent No. 1. In the impugned order dated 29th of July, 1969 the learned Settlement Commissioner has finally held that the property in dispute was only a vacant site and not a residential house and that the peti tioner has raised three katcha/pacca rooms on the spot. So it is con tended that at any rate the petitioner was entitled to the transfer of this property to him as a building site under Settlement Scheme No. VI and his L. H. form should have been allowed to be converted into the plot form, for the transfer of the premises in dispute. Admit. Notice."

In the final hearing the point appears to have been pressed in a slightly different manner, namely, that the Settlement Commissioner had been in formed that the petitioner had raised construction in the form of a room and the same had been mentioned in the order but this aspect was not taken into consideration. The learned Judge repelled this contention by observing that according to the impugned order the Settlement Commissioner had found as a fact that the property in question was an Ihata and not a house. This being a question of fact he did not think a fit case for interference and accord ingly dismissed the writ petition.

Mr. Zafar Pasha Choudhry, learned Counsel for the petitioner, argued that the learned Judge in the High Court has not examined the plea on which the petition was admitted, namely, that even if the property was an open site it could be transferred to the petitioner by treating his L. H. form as a building site form. We do not find force in this plea. The petitioner had filed the L. H. form claiming the transfer of the house, which implied that it was an evacuee house. No plea was taken that it was a building site an that, later on he himself had raised a permanent construction on it. In fact, in the order of the learned Settlement Commissioner it is observed that even according to the plea of the petitioner there were three katcha/pacca rooms existing on the site. However, this plea was not accepted by him because in the certified copy of the order passed by the learned R. Q. C. Montgomery on 19‑6‑1953, which was produced by the petitioner himself before the learned Settlement Commissioner, it was observed that his (D. R. C., s) personal; inspection showed that the property in dispute was an 1hata and the D. R. C. had ordered' that the petitioner should not be disturbed from that 1hata. The Settlement Commissioner had, therefore, found that the property in dispute was only a vacant site bounded by a wall and not a residential house. It may be mentioned that to arrive at this finding he also took note of the entry in the Excise and Taxation Record of the year pertaining to 1946 wherein this property was described as an Ihata with only one ordinary Chhapar. 1n view of the foregoing it is manifest that it has not been proved that any permanent construction has been raised on the property by the petitioner so as to entitle, him to the transfer of this property as a building site.

No ground for interference is made out. This petition is, therefore, dismissed.

Petition dismissed.

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