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Writ Petition No. 1627‑R of 1977, decided on 28th October, 1985.

‑‑‑Art. 199‑‑Findings of fact‑‑Constitutional jurisdiction‑‑Findings of fact that property in dispute was not part of property transferred to petitioner, proved to be correct from evidence on record and no evidence was available on record to show otherwise‑‑Matter concluded by findings of fact, held, was not to be interfered in exercise of Constitutional jurisdiction .

Malik Muhammad Nawaz for Petitioners.

Nemo for Respondents Nos. 1 and 2.

Muhammad Anwar Sipra for Respondent No.3.

Nemo for Respondents Nos. 4 to 6.

Date of hearing: 28th October, 1985.

Rafique Muhammad Gill, predecessor‑in‑interest of the petitioners, was transferred House No.B/258, Gali Guru Kotha, Wazirabad, District Gujranwala, on 2‑2‑1960. Adjoining Property No. B/256 was initially transferred to somebody but due to non‑payment of the transfer price, it was resumed and subsequently put to auction on 24‑11‑1967. It was purchased by Nasir‑ud‑Din and Muhammad Yar, who transferred their rights by an agreement of association in favour of Ilam Din on 14‑6‑1968, Rafique Muhammad Gill filed an application before the Deputy Settlement Commissioner complaining that House No.B/258 stood transferred in his favour and his tenant Ram Din who had purchased some property was raising construction on a part of the property transferred to him. On this application, after contrary report, the Deputy Settlement Commissioner inspected the spot and came to the conclusion that the two rooms disputed formed part of the house transferred to Rafique Muhammad Gill. This is, vide order, dated 3‑10‑1968. This‑was challenged by Ilam Din by means of an appeal which was allowed and case remanded by the Additional Settlement Commissioner, vide order, dated 11‑10‑1976. In pursuance thereof, it was taken up by an Additional Settlement Commissioner on 30‑7‑1977. He referred to the evidence in the form of auction list, survey report and the report of the Settlement Inspector and further that against the auction of Property No.B/256, Rafique Muhammad Gill having not taken any steps, the two rooms stood transferred under the auction. This is, vide order, dated 30‑7‑1977. This is chellenged by his heirs, the petitioners through this Constitutional petition.

2. Learned counsel appearing for the petitioners submitted that the learned Officer has referred to auction list, survey register and the report of the Settlement Inspector. Auction list does not show that the disputed two rooms formed part of the Property No.B/256. Survey Register contains overwriting and the report of the Settlement Inspector had been found to be incorrect by the Deputy Settlement Commissioner after spot inspection. It is also contended that the reasoning on which the petitioners have been deprived of the two disputed rooms that these were auctioned being part. of House No.B/256 and the petitioners did not challenge the auction, is not quite correct because the auction list did not show that the Property No.13/256 had two rooms. Rather it showed that it was Khola. The petitioners had no objection to the auction of the House No.B/256 but their dispute is regarding the two rooms which were part of the House No,B/258.

3. Learned counsel appearing for the respondents auction‑purchasers and their associate has contended that the order of the Deputy Settlement Commissioner, dated 3‑10‑1968 relied upon by the petitioners was passed at their back, even though rights had earlier accrued in their favour. Secondly, that the matter is concluded by findings of facts not interferable in exercise of Constitutional jurisdiction.

4. I have heard the learned counsel for the parties at length and perused all the record available. According to the Additional Settlement Commissioner, vide the impugned order, dated 30‑7‑1977, after partition, the disputed two rooms of House No.B/256, although connected from within with House No.B/246, remained in occupation of (1) Mst. Dasonndhan, (2) Muhammad Umar and (3) Muhammad Yasin, as an independent and separate unit, having separate entrance. No evidence is available on the record to show it otherwise, or that the respondent ever tried to make through his way out through the two entry doors of disputed two rooms or to get back possession of these rooms. On the other hand, it is an established fact that the two disputed rooms remained in use ever since partition as part and parcel of House No.B/256". This finding seems to be correct also from the extracts of Survey Register of the two houses, copies of which were seen from the file of the learned counsel of the petitioners. From there, it also appears that Mst. Dasonndhan, as stated by the learned counsel for the petitioner, was related to the petitioners predecessor‑in‑interest because in House No. B/256 she was shown in possession alongwith Rafique Muhammad Gill. The latter has got transferred House No. B/258. He has got that on the basis of his possession. House No.B/256 was not applied for by them. It was transferred to somebody else and then auctioned. In these circumstances, it cannot be said that the two disputed rooms formed part of House No.B/258 transferred to the petitioner predecessor‑in‑interest. The matter is concluded by a finding of fact. The petition is, therefore, dismissed but in the circumstances the parties are left to bear their own costs.

H . B . T . Petition dismissed.

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