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Civil Petition No. 404 of 1980, decided on 24th March, 1982.

(On appeal from the judgment dated 29‑9‑1979 of the Lahore High Court passed in I. C. A. No. 189 of 1979):

‑‑ Art. 185(3) read with Settlement Scheme No. VIII‑Transfer of house ‑ Appeal to Supreme Court ‑ Petitioner never challenging order of transfer initially made in favour of respondent nor agitating order of remand passed by High Court‑Conclusion of Settlement Authorities that no form filed by petitioner was available on file and that property standing transferred to respondent same was not available for retransfer upheld by High Court‑View taken b High Court Held, not open to exception.

Muhammad Asif Jan and Ch. Muhammad Hassan, Advocates Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.

M. Aslam, Advocate‑on‑Record for Respondents.

Date of hearing: 24th March, 1982.

The dispute relates to the residential portion of a composite property bearing No. D‑195, situate in Burewal3, District Vehari. The portion had been transferred in favour of the respondents on 13‑4‑1960. At the instance of an informer named Ibrahim the transfer was cancelled by the Additional Settlement Commissioner who directed it to be put to auction. The respondents brought a revision petition but when the same was dismissed on 4‑6‑1966, they came up in Writ Petition No. 52/R of 1966, in which they were granted an order for maintenance of status quo. Noor Muhammad petitioner entered the scene for the first time by an application for impleadment in the writ petition and was impleaded therein as a respon dent. According to him, he also simultaneously filed form under Scheme No. VIII on 28‑i0‑1966. The writ petition ended in an order of remand with certain directions. The Settlement Commissioner, however, by his order dated 12‑10‑1976 rejected the case of the petitioner and accepted the respondents' revision petition, restoring the allotment made in their favour. The petitioner challenged the decision by filing Writ Petition No. 1845‑R of 1.976, and upon its dismissal on 15‑5‑1979 by 1. C. A. No. 189 of 1979, but the same, too met the same fate on 29‑9‑1979. He now seeks leave to appeal.

2. The office has noted that the petition is barred by 222 days as against the order dated 15‑5‑1979 passed in Writ Petition No. 1845/R of 1976. Since the petition is also directed against the order dated 29‑9‑1979 passed by the 1. C. A. Bench of the High Court, the petition is within time.

3. The contention before us is that as the petitioner had filed form on 28‑10‑1966 when the transfer made in favour of the respondents had stood cancelled, the property was available and as such he had a locus standi to seek its transfer in his favour. As already mentioned, the petitioner had entered the contest during the pendency of Writ Petition No. 52/R of 1966. However, he does not appear to have been present in person or through counsel or to have advanced any argument at the time of hearing of the writ petition, because there is no mention of his case in the judgment, and while remanding the case the learned Judge made the only direction that the Settlement Commissioner "would dispose of the settlement revision filed by the petitioners (present respondents) in accordance with law and would deal with all legal objections taken by the petitioners (present respondents) with special reference to the question of limitation regarding appeal." Obviously, the revising authority could not go outside the terms of the remand order. However, the learned Settlement Commissioner did advert to the case of the petitioner but rejected it for the reason that:‑

(1) he had never filed an appeal or revision against the transfer order made in favour of the respondents;

(2) no form filed by him was available on the file and

(3) since the property stood transferred to the respondents, the same was not available for retransfer to any body else.

The view of the Settlement Authority was upheld in the subsequent writ petition and I. C. A. filed by the petitioner. The fact remains that the petitioner had never challenged the order of transfer initially made in favour of the respondents. He had also not agitated against the order of remand passed in Writ Petition No. 52/R of 1966, whereby the scope of the remand had been limited to the re‑examination of the case of the informer qua that of the respondents. The view taken by the High Court is, therefore, not open to exception. The petition is dismissed.

Petition dismissed.

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