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Civil Petition for Special Leave to Appeal No. 1121 of 1975, decided on 22nd February. 1981.

(On appeal from the judgment of Lahore High Court dated 15-9-1975 in Writ Petition No. 109-8 of 1969)'

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---Ss. 10 & 11 read with Settlement Scheme No. VII--Transfer of evacuee property-Contention that respondents having not been successful in earlier round of litigation in appeal and revision they could not reopen case through proceedings under Ss. 10 & 11 of Act XXV1I1 of 1958--Whether petitioner could legitimately challenge correctness of findings of High Court, viz. land in dispute was ghar mumkin abadi situated next to residential and commercial area within municipal limits-Nat denied-High Court having reached such a finding of fact on correct appreciation of record, no exception could be taken to same -Initial order of allotment of property as agricultural land having been rendered contrary to law, transfer of property in respondents' favour under Settlement Scheme No. VII, held, not barred.

Ch. Muhammad . Hasan, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing : 22nd February, 1991.

The dispute between the parses relates to 1 kanal 10 marlas of land, out of Khasra No. 5/1, measuring 3 kanals and 5 marlas of Square No. 19, situated in Chak No. 54/2--L, Tellisil Okara, District Sahiwal. This entire area was confirmed in petitioner's favour. In series of litigation between the parties, the case finally came up before Lahore High Court in Writ Petition No. 109-R of 1969 filed by respondents 1 to 5. Learned Single Judge in the High Court after perusal of the record dismissed the petition by the judgment dated 15-9-1975 for the reasons that may be stated in his own words as under:

"I do not see how by any stretch of imagination the khasra in dispute could be regarded as land. As already mentioned in the Jamabandi ands for the year 1946-47 its nature was given as ghair mumkin abadi it was also recorded that the original owner had let out the khasra to two persons on monthly rents of Rs. 30 and Rs. 20-4-0. There is no evidence whatsoever that after 1946-47, it was used for agricultural purposes subservient to agriculture. In the subsequent jamabandi too it has been shown as ghair mumkin abadi. The assertion of respondents Nos. 1 and 2 that on the eve of Partition there was an Ahata on the khasra which was used for agricultural purposes is not supported by any evidence whatsoever. In fact its proximity to the civic centre tends to indicate that the structures existing on it were intended for commercial purposes. However that may lie, there is no evidence whatsoever, that the structure found upon it on the eve of Partition had anything to do with agriculture. Consequently the finding of the learned Settlement Commissioner that the Khasra in question fell within the definition of land is without any foundation at all."

On this view of the case, learned Single Judge upheld the transfer of the property in respondents' favour under Settlement Scheme No. VIII, and set aside the order of the Settlement Commissioner dated 28-12-1968 by which transfer of the property as agricultural land in petitioner's favour was confirmed.

Choudhary Muhammad Hassan, learned counsel appearing in supports of this petition for special leave to appeal from the judgment of the High Court submits that the 'respondents were not successful in earlier round of litigation in appeal and revision, and they were therefore precluded from re opening the case through proceedings under sections 10 and 11 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

On a querry whether the petitioner can legitimately challenge the correctness of the finding of the High Court that the land in dispute is ghair mumkin abadi. situated next residential and commercial areas within the Municipal limits of Okara, learned counsel was not in a position to urge anything. Since the High Court has reached the finding of fact on correct) appreciation of the record, no exception can be taken with the view the

Prevailed with the learned Single Judge in the High Court. On the factual position found by the High Court, since the initial order of allotment o property as agricultural land is rendered as contrary' to law, it cannot serve as a bar to the transfer of the property in respondents' favour validly made) under Settlement Scheme No. VII.

Leave is therefore refused, and the petition dismissed in limine.

Petition dismissed.

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