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Civil Petition No. 693 of 1976, beard on 18th April, 1982.

(On appeal from the judgment dated 30-4-1976 of the Lahore High Court, Lahore in Writ Petition No. 308-R of 1969).

-- S. 2(12)-Divisible property - Allotment - High Court's remand order challenged on ground that decision of Settlement authority on question whether property divisible or not and whether portions in dispute formed integral part of main house being questions of fact could not be interfered with by High Court-Held: Petitioners cannot agitate against order passed in writ petition for reason of no petition for leave to appeal having been filed against orders passed thereon accepting petition filed by respondents and remanding case back to Settlement Commissioner for fresh consideration - Constitution of Pakistan (1973), Art. 185(3).- [Question of fact].

----S. 2(12)-Composite property-Allotment - Property a composite property - Order of Settlement authority transferring shops to their occupants obviously passed under S. 2(12) of Act XXVIII of 1958-Order of transfer thus passed held, not open to exception.

Khan Muhammad Younus Khan, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioners

Abid Nawaz, Advocate-on-Record (absent) for Respondents.

Date of hearing: 18th April, 1982.

-This case relates to the transfer of a large evacuee property situate at Durand Road, Lahore. In the judgment of the High Court, the property has been described as a Katri' occupied by some 44 persons, 5 of whom had shops in their possession, 34 had separate quarters and there were 5 unroofed quarters. The petitioners including Qazi Sadiq Hussain, who has since died and is now represented- by his legal represen tatives, were in occupation of the main bungalow, while the respondents were the occupants of the separate quarters and shops.

2. On the commencement of the Settlement Operations, the petitioners applied on a form CH' for the transfer of the entire property in their favour, while the respondents, some of whom were claimants and the others non claimants, submitted 'CH', NCH' and NCS' forms for the transfer of the portions of the property in their possession.

3. The Deputy Settlement Commissioner, by his order dated 24-4-1960, transferred the entire property in favour of the petitioners. On appeal, by the respondents, the Additional Settlement Commissioner, by his order dated 9-12-1961, set aside the said order and remanded the case back to the Deputy Settlement Commissioner for fresh decision. In pursuance of the aforesaid remand order, the Deputy Settlement Commissioner again took up the matter and by a detailed order passed on 20-7-1963, divided the property whereby the main bungalow was transferred in favour of the petitioners, while the shops and quarters were transferred to the respondents. Feeling dissatisfied with this order, the petitioners challenged it by filing an 'appeal before the Additional Settlement Commissioner but the said appeal, too, was dismissed by him vide his order dated 18-3-1968. The petitioners then filed a revision petition before the Settlement Commissioner and the same was accepted; in that the entire property was transferred in favour of the petitioners except for three shops which were in possession of Abdus Sami (now deceased and represented by his widow, respondent No. 15 herein), Umar Din {also deceased and now represented by his legal re presentative, respondent No. 1 herein) and Habibur Rahman (also deceased and represented by his legal heir, respondent No 10 herein) and were transferred to the said respondents. This order was passed on 30-9-1968: The petitioners were, however, still not satisfied and therefore, challenged the order of the Settlement Commissioner by filing a writ petition before the High Court (W. P. No. 308-R/69) praying for the transfer of the Lahore High Court of the separate quarters naturally aforesaid three shops. The cup aggrieved on account of the deprivation of the portions of the property in their Possession, which had been transferred in their favour by Settlement Commissioner and whose order had been maintained an appeal by the Additional Settlement Commissioner Consequently, they also filed a writ petition in the Lahore High Court to question the order of the Settlement commissioner (W. P. No. 152-R/69).

4. Both the writ petitions were heard together by a learned Single Judge and disposed of by him vide his order dated 30-4-1976. The writ petition filed by the respondents (W. P. 152/R/69) was accepted on the ground that the learned Settlement Commissioner had not properly looked into the record nor examined the facts with reference to actual facts of fife on the spot and, therefore, his order was without lawful authority and of no legal effect. Consequently, the case was remitted to the Settlement Commis sioner to re-examine the case with reference to the facts and the law applicable there to and to pass orders in accordance with law. The parties were left to bear their own costs.

5. However, so far as the writ petition filed by the petitioners was concerned (W. P. No. 308-R/69), whereby the transfer of the shops in possession of Abdus Sami, Umar Din and Habibur Rehman was challenged and it was claimed that these shops were, infact rooms of the "house" to the transfer of which the petitioners were entitled, it was held that the said petition had no merits whatsoever for the reasons that "for three shops the respondents petitioners herein) had filed no forms. The shops were separate independent entities. These have been transferred to their occupants, ' who are displaced persons and two of them claimants. No exception can be taken to their transfer". Consequently, the writ petition filed by the petitioners was dismissed but the parties were left to bear their own costs.

6. In this petition leave "has been sought against the judgment of the Lahore High Court dated 30-4-1976 passed in Writ Petition No. 306-8 of 1969, that is to say, against the order passed in writ petition which was filed by the petitioners. However, the occupants of the separate quarters-who filed Writ Petition No. 152-R of 1969, which .was accepted and the case remitted for re-examination-have also been impleaded as respondents in this petition for leave to appeal.

7. Khan Muhammad Younus Khan, learned counsel for the petitioners attempted to challenge the last mentioned remand order on the group that the question whether the property was divisible or not and the quarter were an integral part of the main house was a question of fact and the High Court could not interfere with the finding of the Settlement Commissioner on the aforesaid question.

8. We, however, consider that the petitioners cannot agitate against the order passed in Writ Petition No. 152-R of 1969 because no petition for leave to appeal has been filed against the said order, whereby the petition filed by the respondents was accepted, leaving the parties to bear their own costs and the case remanded back to the Settlement Commissioner for fresh consideration.

9. So far as the challenge against the transfer of three shops in favour of respondents Nos. 1, 10 and 15 is concerned, which was the subject-matte of Writ Petition No. 308-R of 1969 filed by the petitioners; they can un doubtedly be heard in support thereof. Consequently, we have heard Mr, Muhammad Younus Khan in this connection but find that the order of the High Court in this regard is not open to exception. The property obviously is a composite property and the order of the Settlement authorities transferring three shops in favour of respondents Nos. 1, 10 and 15, which were in their possession, bas obviously been passed in exercise of the powers vesting in them under subsection (12) of section 2 of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958.

10. This petition, therefore, has no force and, accordingly, fails and is dismissed hereby.

Petition dismissed.

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