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C. P. No. 686 of 1974, decided on 2nd February, 1980

(On appeal from the judgment and order of the Lahore High Court, dated 14-6-74 in W. P. 1033-R of 1974).

--- Sched., Part II-Transfer of evacuee shop-Converted property, transfer of-Predecessor-in-interest of transferee of shop submitting several applications before Settlement authorities and High Court definitely agitating his claim for property on basis of its conver sion-Transfer of shop by auction in favour of another having taken place when still available for transfer as applied for by predecessor-in-interest of transferee, transfer of same as a converted property, held, unexceptionable.

F. M. Anwari, Advocate with Sh. Abdul Karim, Advocate-on- Record for Petitioners.

Nemo for Respondents.

Date of hearing: 2nd February, 1980.

This petition is directed against the order dated 14th June, 1974 passed by a learned Single Judge of the Lahore High Court dismissing the writ petition (W. P. No. 1033-R/74) filed by the petitioner

The dispute in this case is about Shop No. P-189, Chiniot Bazar,Lyallpur, which is a double-storeyed building and was an evacuee pro perty. Before the Partition Maula Bakhsh, the predecessor-in-interest of respondent No. 1, was occupying it as tenant of the evacuee owner.The said Maula Bakhsh has since died (9-8-1962) and is represented by his wife Mst. Salamat Bibi respondent No. 1 herein. The case of the petitioner herein is that Maula Bakhsh being a local had not filed any form for the transfer of the property in dispute as locals were not entitled to the transfer of shops under the law. The property was, therefore, put in the auction list vide order of the Additional Deputy Settlement Commissioner, Lyallpur on 1st December, 1959. It was put to auction on 25th August, 1960 and Muhammad Ismail, the predecessor-in interest of the present petitioner offered the highest bid of Rs. 81,000 and paid 1/4 price out of his compensation book and was prepared to pay the balance after the issuance of the P. T. O. and demand notice. The auction proceedings were, in due course, approved by the Additional Settlement Commissioner and a P. T. O. was issued in favour of Mohd. Ismail on 29th September 1960. In the meantime, however, Maula Bakhsh filed an appeal before the Additional Settlement Commissioner presum ably claiming that he had filed a transfer form on 2nd August, 1959 and hence the property could not have been put in auction and the order dated 1st December, 1959 including it in auction list was illegal. He also claimed that after the creation of Pakistan he had converted the property into a hotel and was entitled to its transfer as a converted property under the relevant instructions issued on 3rd May, 1960. This appeal was, however dismissed as time-barred by the Additional Settlement Commissioner vide his order dated 28th August, 1960. However, a revision petition against the said order by Maula Bakhsh was accepted by the Settlement Commissioner vide his order dated 14th October, 1962 and the property was ordered to be transferred in his favour.

Aggrieved by this order, petitioner No. 1 and Muhammad Ibrahim, predecessor-in- interest of petitioners Nos. 2 to 5, filed a writ petition (W. P. 730-R/64l before the High Court admitting inter alia that the Settlement Commissioner had decided the revision petition exparte and the L. H. form allegedl filed by Maula Bakhsh upon which he relied was a forged and fabricated document. The writ petition was accepted by the then learned Chief Justice, Mr. Justice Waheeduddin Ahmad by his order dated 28th October 1968 and the case was remanded to the Settlement Commissioner for deciding the contention raised by the petitioner that "R 1" purporting to be a receipt for L H form filed by Maula Bakhsh was a forged document. The learned Settlement Commissioner took up the case and by his detailed order passed on 7^th December, 1973 held that the L. H. form was genuine, that Maula Bakhsh had also applied on 13th June 1960 after the issuance of the instructions dated 3rd May, 1960 relating to the transfer of the converted properties and that he was, therefore, entitled to the transfer of the property as a converted property.

Aggrieved by the said order, the petitioner again moved the High Court by filing a writ petition (W. P. 1033.R/74) which was dismissed in limine by a learned Single Judge who held that the order of the learned Settlement Commissioner dated 7th December, 1973 was not open to exception and did not call for any interference. Hence this petition for leave to appeal.

Mr. F. M. Anwari, learned counsel for the petitioner has reiterated the submissions made by him before the Settlement authorities and the High Court, namely, that the so-called L. H. form filed by the respondent was a forged and fabricated document and that respondent No. 1's predecessor-in-interest Maula Bakhsh was not entitled to the transfer of the hotel as a converted property as under the said instructions the property could be transferred only if it was still avail able whereas the property has been auctioned in favour of Muhammad Ismail, predecessor-in-interest of the petitioners on 25th August, 1960 and the P. T. O. also issued in his favour shortly thereafter.

We regret we cannot accept these pleas. The fact whether the L. H. form filed by Maula Bakhsh was a forged and fabricated document is a question of fact. The matter was remanded by the High Court, while disposing of Writ Petition No. 730-R of 1964, for examination of this question and the learned Settlement Commissioner after careful examina tion of the relevant facts held that the form was indeed a genuine docu ment. This finding of fact was rightly not interfered with by the High Court.

As for the second contention that the property was not available and hence the instructions relating to converted properties did not apply, Mr. Anwari relied before us upon some application submitted by Mauls Bakhsh in 1961 wherein he prayed for the transfer of the property as a converted property. However, the perusal of this application showed that Maula Bakhsh bad stated therein that he had submitted several applications on the subject before. The Settlement, authorities as also the High Court has found that Maula Bakhsh had definitely agitated his claim for the property on the basis of its conversion by an application filed in the month of June, 1960. Since the auction in favour Muhammad Ismail took place in August, 1960, the property was still available when it was applied for by Maula Bakhsh. Consequently, the transfer of the same as a converted property to him is unexcep tionable.

The upshot is that there is no force in this petition which is, accor dingly, dismissed hereby.

Petition dismissed

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