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Civil Petition for Special Leave to Appeal No. 900 of 1974, decided orb 25th February, 1980.

(On appeal from the judgment and order of the Lahore High Court, dated 31-7-1974, in W. P. 658-R of 1968).

---Art. 199-Writ-Decisions turning on facts-Not liable to interfer ence in limited constitutional jurisdiction of High Court-Case turning on allegations of fraud-Proper remedy, held, a suit and remedy of writ petition misconceived.

Muhammad Hassan Munir and others v. Sikandar and others P L D 1974 S C 139 ref.

Muhammad Naazar Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing : 25th February, 1980.

The petitioners are brothers and they were joint trans ferees from the Settlement Department of the residential portion of a property (hereinafter called the house) in Lyallpur of which particulars have been given to the petition for leave. Mr. Naazar Khan stated that they were also the transferees of a part of the shop underneath the house transferred to them.

And, no 18-4-1963 the first petitioner is alleged to have made in agreement with the fourth respondent to transfer to him both the house and a portion of the shop underneath for a consideration of Rs. 20,000 out of which the first petitioner is alleged to have received only Rs, 1,000 as an earnest money. The sale was to be executed upon the receipt of the transfer documents within three months and this period was later extended by mutual agreement by another two months. Next and this is an allegation vehemently denied by the petitioners, they are alleged to have entered into an association deed on 25-7-1964 with the fourth respondent, who presented it before the Deputy Settlement Commissioner on 31-12-1964 in support of his application that the house be transferred to him. The Deputy Settlement Commissioner held an enquiry as the petitioners denied the extension of the association deed, and both parties examined evidence in support of their respective contention. However, by his order dated 15-7-1966 the Deputy Settlement Commissioner accepted the claim of the fourth respondent and held that the association deed had been duly signed and executed by the petitioners therefore, he directed that the transfer documents would be issued to the fourth respondents.

This order was challenged in an appeal and then in a revision by the petitioners but as the appeal and the revision were dismissed by an Additional Settlement Commissioner and by the Settlement Commissioner respectively the petitioners filed a writ petition in the Lahore Seat of the West Pakistan High Court which came up for hearing in the events that happened before a learned judge of the Lahore High Court on 31-7-1974. The learned Judge was of the view that there were some evidence to support the fourth respondent s claim, therefore in view of this Court s Judgment in Muhammad Hassan Munir and others v. Sikandar and others (PLD 1974 SC 139) he dismissed the writ petition of the petitioners. Hence this petition for leave.

Mr. Nazzar Khan took us through the evidence of the scribe, who had prepared the deed of association and submitted that the concurrent findings of the Settlement Department were based on a total misreading of evidence. But there is evidence to support the claim of the fourth respondent that the first petitioner had entered into an agreement on 16-4-1963 with him and as the deed of association was the consequence of this agreement it cannot be said that the view taken by the Settlement Department is not based on any evidence whatever. Therefore, it would appear Prima Facia that the High Court was justified in not interfering in its limited constitutional jurisdiction with decisions which turned on facts. Additionally, is very clear from learned counsel s arguments that the case of the petitioners turns on allegations of fraud. Therefore, the proper remedy for the petitioners would have been a suit and the remedy of a writ petition was misconceived. And if the petitioners are so advised it would be open to them to file suit to enforce their alleged rights. With these observations, the petition is dismissed.

Petition dismissed.

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