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Civil Petition for Special Leave to Appeal No. 679 of 1979, decided on 13th April, 1983.
(On appeal against the judgment and order of the Lahore High Court, dated 10‑6‑1979 in Writ Petition No. 391/R/1972).
‑‑ Art. 185(3)‑Settlement Scheme No. IX‑Entitlement of respondent ordered to be considered under Settlement Scheme No. IX, property having been taken to be "available property" in her occupation‑Supreme Court, having attended to all aspects and keeping technicalities of procedure apart, held, that claimant dis placed person carrying on business in premises since long was being accommodated and technical view of matter may have at belated stage i.e., leave to appeal, deprived her of interest in property, refused leave to appeal.
A. R. Shaukat, Senior Advocate Supreme Court, Shaukat Ali Malik Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Petitioners.
Shehzad Jahangir, Senior Advocate Supreme Court for Respondents.
Date of hearing ; 13th April, 1983.
The petitioner, transferee of a shop, seeks leave to appeal against the judgment of the Lahore High Court, dated 10‑6‑1979 whereby a constitutional petition filed by the respondent Sardaran a claimant displaced person was allowed and it was ordered that the Khokha on the outer side of one of the walls of this shop should be disposed of under Settlement Scheme No. IX keeping in view her rights and that her sons and other heirs therein.
The question of the transfer of the Khokha in the outer portion of the shop transferred to the petitioner had been the subject‑matter of prolonged litigation between the parties and others also. The Additional Settlement Commissioner refused the claim of Mst. Sardaran as being barred by limitation. So did the Settlement Commissioner, on 5‑I1‑1964. The respondent was not supplied a copy of the order of the Settlement Commissioner and the endorsement at the back of her application showed that such an order of the Settlement Commissioner was not available on the record. A second revision filed by her was also rejected in April, 1972. There also took place litigation with respect to this Khokha between the petitioner and one Islam Qureshi and the result of all this litigation was noted as follows by the High Court ‑
"The result of the entire litigation is that the Khokha in dispute under the continued possession of Muhammad Sharif, a claimant‑allottee and his successor‑in‑interest, has been treated as a part of the shop transferred to Noor Muhammad respondent No. 2."
The High Court found that since before partition this Khokha had been treated as an independent business premise and had remained in possession of the children or grand children of Mst. Sardaran throughout after the partition. It was also found that Mst. Sardaran was a displaced person who had filed a C. S. form. It was also held and on local inspec tion also it was confirmed to be a separate business premise. As the settlement authorities had themselves treated it as a separate premise since 1955, the High Court held that it could not be treated to be a part of the shop nor could two commercial units be transferred to the petitioner.
The learned counsel for the petitioner contended before us that the claim of the respondent had been held to be barred by limitation and it was for that reason that her appeal and revision were dismissed. She had submitted to the transfer in favour of the petitioner and had attorned as the tenant of the petitioner. The High Court could not have interfered with the order of the settlement authorities dividing the property nor could have proceeded to determine the eligibility of the respondent under Settlement Scheme No. IX. These were more appropriately the functions of the settlement authorities.
We have attended to all aspects of the case and technicalities apart, we find that a claimant displaced person who has been carrying on business in the premises since long stands accommodated. A technical view of the mater may have at this belated stage of the proceedings deprived her of interest in the property. Her entitlement has been ordered to be considered under Settlement Scheme No. IX as the property has been taken to be an available property' in occupation of the respondent. We consider that this is not a fit case for grant of leave to appeal and the same is refused.
M. Z. M.
Leave refused.
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