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Civil Petition for Special Leave to Appeal No. 628 of 1979, decided on 22nd July, 1980.
(On appeal from the judgment of the Lahore High Court, Lahore dated 29‑4‑1979 in Civil Revision No. 332/13 1979).
Constitution of Pakistan (1973)‑
----Art. 185(3) ‑ Leave to appeal ‑ Proceedings before Settlement Authorities contested at all levels, such authorities determining question of possession and divisibility of house ‑ Such authorities having exclusive jurisdiction to determine such question, suit in question also time‑barred and barred under principles of res judicata‑Petition for leave to appeal dismissed in circumstances.
S. M. Chaudhry, Advocate with Ch. Muhammad Aslam, Advocate‑on- Record for Petitioner.
A. R. Sheikh, Senior Advocate Supreme Court with Inayat Hussain Advocate‑on‑Record for Respondents.
Date of hearing : 22nd July, 1980.
J.‑The petitioner seeks leave to appeal against the judgment of the Lahore High Court dated 29‑4‑1979 whereby a civil revision filed by him was dismissed in limine.
2. There was a long drawn out contest between the petitioner and Siraj Din, the predecessor‑in‑interest of the respondents, over the transfer of lower portion of House No. 4603 in Mohallah Madanpura, Gowalmandi, Rawalpindi. On the Settlement side the controversy concluded with the Settlement Commissioner's order dated 15‑6‑1965 holding that though the petitioner was a Jammu & Kashmir refugee he was not on the relevant date in possession of the lower portion of that house nor could he advance his case on the basis of a marriage to the sister of one Ashiq an occupant both of whom were not Jammu & Kashmir refugees. The transfer in favour of Siraj Din of the entire indivisible house was maintained.
3. The petitioner in the second round challenged the decisions of the Settlement Authorities by means of a Constitutional Petition and a Letters Patent Appeal both of which failed.
4. The petitioner started the third round after Siraj Din bad approached the Rent Controller for his eviction and in 1976 instituted a civil suit seeking a declaration that the orders passed by the Settlement Authorities were null and void for various reasons given by him and that he was not liable to be evicted and the respondents be restrained from evicting him. His claim was based on the ground that he was a Jammu and Kashmir, refugee and in possession and his portion could not be transferred to any one else and he could not be dispossessed there from. Preliminary issues were framed with regard to limitation, the jurisdiction and the suit being barred in accordance with the principles of res judicata. The petitioner failed on these issues and hence the suit was dismissed. The appeal to the District Judge was also of no avail as well as the revision in the High Court.
5. The learned counsel for the petitioner contended that the petitioner being a refugee from Jammu & Kashmir was protected in his possession over the lower portion of the house and could not be evicted and the orders passed to the contrary were a nullity and he could challenge them when ever there was any inroad on his right to possess and enjoy the property. According to him it was a case of recurring cause of action and he could not necessarily be tied down to the orders passed by the Settlement Authorities.
6. After hearing the learned counsel for the petitioner, we find that this petition has no merit. The proceedings before the Settlement Authorities were contested at all levels and determined the question of possession, of which those authorities had the exclusive jurisdiction to determine. Similarly, the question of divisibility of the house was determined. The petitioner took up all the grounds which he had taken up in civil suit for agitating against those orders in the Constitutional Petition. The suit instituted in 1979 cannot be said to be within time or not barred under principle of res judicata. The petition is dismissed as without merit.
Petition dismissed.
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