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Civil Petition No. 80 of 1981, decided on 3rd April, 1983.
(Against the judgment of the Lahore High Court, Lahore dated 13th October, 1980, passed in L. P. A. No. 9 of 197.
--Art. 185(3)‑‑Settlement Scheme No. VII Leave to appeal granted to consider question whether original allottee or tenant in actual possession of shop was entitled to transfer under Settlement Scheme No. VII.
Nazar Din alias Nazar Muhammad v. Mian Ghulam Shabbir and others P L D 1966 Lah. 716 and Mst. Ambo Jan and 2 others v. Assistant Settlement Commissioner (Lands), Abbottabad and 6 others P L D 1975 Pesh. 244 ref.
A. R. Shaukat, Advocate Supreme Court with Tanvir Ahmad, Advocate -on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 3rd April, 1983.
The petitioner seeks leave to appeal against judgment of a Division Bench of the High Court, dated 13‑2‑1980, allowing the respondent's I: C. A.
2. The facts leading to this petition, briefly, are that Muhammad Fazil a displaced person was allotted the shop in question on 12‑1‑1952 and possession was delivered to him. He, however, let out the shop to Hanif respondent No. 4. On 10‑5‑1965, the petitioner filed an application for the transfer of the shop under the original Settlement Scheme No. VII. Muhammad Hanif (respondent No. 4) the licensee/tenant also filed an applica tion under the revised Settlement Scheme No. VII on 3‑5‑1967. The Assistant Settlement Commissioner transferred the shop to the petitioner on 25‑7‑1968. Muhammad Hanif appeal ‑ which was rejected by the Deputy Settlement Commissioner on 30‑4‑1970. A revision filed by him was also rejected by the Settlement Commissioner on 18‑9‑1970. He then filed a writ petition which, too, was dismissed in limine on 14‑12‑1970. Thereafter, he filed an I.‑C. A. and was successful for the first time as the learned Division Bench of the High Court accepted it vide the impugned judgment dated 13‑10‑1980, on the ground that Muhammad Fazil (petitioner before us) by letting out the shop must be presumed to have abandoned his rights therein. The learned counsel has, however, urged relying on Nazar Din alias Nazar Muhammad v. Mian Ghulam Shabbir and others (P L D 1966 Lab. 716) and Mst. Ambo Jan and 2 others v. Assistant Settlement Commissioner (Lands), Abbottabad and 6 others (P L I) 1975 Posh. 244) that the petitioner was still in constructive possession of the shop.
Leave is granted on the question as to whether, in the circumstances of this case the original allottee or the tenant in actual occupation of the shop in question was entitled to the transfer thereof under Settlement Scheme No. VII.
Security in the sum of Rs. 2,500.
To be heard on the same record with permission to file additional documents.
M. Z. M. Leave granted.
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