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Civil Petition No.718 of 1979, heard on 3rd March, 1985.

(Against the judgment and order dated 3‑7‑1979 of the Lahore High Court, Lahore in Writ Petition No.97‑R of 1972 ),

‑‑‑Art. 185(3)‑‑Settlement Scheme No. VII, paras. 3 & 4‑‑Transfer of plot in rural area‑‑Built up portion of plot transferred to respondents while unbuilt portion to petitioners‑‑High Court in Constitutional petition ordered transfer of whole property to respondents‑‑Leave to appeal refused on ground that Scheme No.VII governed the matter and same related to transfer of rural buildings and not to open plots‑‑Transfer under Settlement Scheme No. VII envisaged rural building inclusive of land appurtenant to it and to confine respondents solely to Kotha built up by their ancestors and to ignore their occupation and possession would be arbitrary view.

Mahmood A. Qureshi, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 3rd March, 1985.

‑‑The petitioner who has been unsuccessful in obtaining the transfer of a plot in rural area under Settlement Scheme No VII seeks leave to appeal against the judgment of the Lahore High Court, dated 3‑7‑1979 whereby the constitutional petition filed by the respondents the successors‑in‑interest of Meher Muhammad Yar Advocate was allowed.

According to the petitioners their own ancestors owned in the distant past Plots No. 106 and 109 (old Nos. 53 and 64) in village Jhawarian Tehsil Shahpur, District Sargodha. They had sold it to evacuees. After the migration of the evacuees the petitioners and the predecessor‑in‑interest of the respondents occupied the plots and were in possession of the same. The predecessor‑in‑interest of the respondents had built a Kotha over a portion of it. The predecessor‑in‑interest of the respondents died in 1965 and before that he was a practising lawyer at Sargodha. They had made a joint application of the transfer of this property but during the proceedings for its transfer the respondents made exclusive claim. Under the first order passed by the Assistant Settlement Commissioner on 2‑10‑1968 the built up portion was transferred to respondents and the unbuilt portion to the petitioners. After remand the entire property was transferred to the respondents and ultimately the Settlement Commissioner by his order, dated 25‑6‑1971 restored the division as ordered by the Assistant Settlement Commissioner. A constitutional petition was filed by the respondents which has been allowed and the whole property stands transferred to the respondents.

The learned counsel for the petitioners has contended that the decision of the High Court is based on Settlement Scheme No.VI and Settlement Scheme No.I relating to urban property while in fact the case was governed by the revised Settlement Scheme No.VII relating to buildings in rural areas. It was established, according to the learned counsel for the petitioners, that the petitioners were entitled to the transfer of the plot which had been originally transferred to them and finally maintained by the Settlement Commissioner. The High Court, according to the learned counsel for the petitioners, should not have interfered with such a disposal of the property.

The learned counsel for the petitioners is justified in contending that Settlement Scheme No.1 or No. V I was not attracted to the facts of the case and it was Settlement Scheme NO. VII which governed the matter. Our examination of that Scheme shows that it relates to transfer of rural buildings and does not in terms provide for transfer of open plots or building sites independent of rural building. The case of the respondents throughout was that not only their predecessor‑in‑interest was allottee of the plot he had also built on a portion of it and was occupying the rest. The case of the petitioners was that they were occupying the open plot and were entitled to its transfer. On the facts A found, therefore, the plaintiffs were entitled to transfer under Settlement Scheme No. VII of the rural building inclusive of the land appurtenant to it. Such a division as was ordered of the plot and the built up portion was not envisaged under Settlement Scheme No. VII. Besides, it would be an arbitrary view to confine the possession of the respondents‑‑daughters 'of Meher Muhammad Yar, solely to he Kotha built up by their ancestors and their such occupation should be ignored altogether so far as the land appurtenant to the built up portion is concerned. The definition of rural building includes the land appurtenant to the built up portion and there is nothing on the record to show) that such a division was called for or was justified. In the circumstances, we do not consider that this is a fit case for grant of leave to appeal and the petition is dismissed.

A. A. Appeal dismissed.

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