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Civil Appeal No. 69 of 1983, decided on 13th October, 1985.

(On appeal from the judgment, dated 6‑11‑1979 of the High Court in Letters Patent Appeal No. 17 of 1980).

‑‑‑Art. 185(3)‑‑Appeal‑‑Limitation‑‑Time‑barred appeal‑‑Leave to appeal granted to consider whether order of Settlement Commissioner was not bad because he had, while upsetting order of Additional Settlement Commissioner not adverted to question of limitation on which ground for decision of appeal was founded.‑‑.[Limitation].

‑‑Ss. 10 & 11‑‑Evacuee Property and Displaced Persons Law (Repeal) Act (XIV of 1975), S. 2‑‑Transfer of property‑‑Appellant having no entitlement to transfer of house in dispute at all‑‑Finding of fact reached by Settlement Commissioner, after referring to documentary evidence, that respondent who was occupant of house since 1947 submitted an N . C . H . Form‑‑Such finding of fact interfered with by Single Judge in writ jurisdiction which he could not, especially when it was based on material on record‑‑Since occupant of house applied for transfer of property on N.C.H. Form, property was not available for transfer through earmarking process‑‑Order of Letters Patent Bench upholding transfer of disputed property in favour of respondent, held, unexceptionable.

‑‑‑Art. 185(3) & 199‑‑Constitutional jurisdiction‑‑Finding of fact‑‑Finding of fact based on material on record‑‑Interference with such finding, held, could not be made in writ jurisdiction.

Irshad Ahmad Qureshi, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for Appellant.

M. R. Chughtai, Advocate Supreme Court, Iqbal A. Qureshi, Advocate‑on‑Record (absent) and Raja A. Razzaq, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 13th October, 1985.

The dispute in this case relates to the transfer of House No. 46 Block No. 10 in Dera Ghazi Khan. This house belonged to an evacuee but after the Partition of the Indo‑Pakistan sub‑continent was occupied on 15‑11‑1947 by Habibullah Khan, who is a non‑claimant displaced person from India. The allotment was confirmed in his favour on 10‑1‑1950 by the Deputy Rehabilitation Commissioner, Dera Ghazi Khan and he has been in possession of the house ever since then.

On the commencement of the settlement operations in 1959 the local settlement authorities finding that no transfer form had been filed by the occupant of the house, placed the house in dispute in the list of houses to be transferred through ear‑marking, by drawing of lots. The lot was drawn in favour of the appellant Muhammad Hanif and the house was, accordingly, ordered to be transferred in his favour by order of the Deputy Settlement Commissioner, dated 28‑1‑1960. On coming to know of this development Habibullah Khan respondent filed a belated appeal against the said order before the Additional Settlement Commissioner but this was dismissed by the order of the Additional Settlement & Rehabilitation Commissioner, Multan and Bahawalpijr Division, dated 24‑6‑1963 on the ground that the appeal was barred by time.

Dissatisfied with the said order of the Additional Settlement Commissioner, the respondent filed a revision petition before the Settlement Commissioner. This was accepted by the Settlement Commissioner, Multan Division, Multan on 16‑9‑1963 on the ground that the respondent had sent a N.C.H. Form to the Chief Settlement Commissioner on 4‑12‑1959 for transfer of the property in question and, therefore, in law the property was not available for transfer through the ear‑marking process. In the result, the order of transfer in favour of the appellant herein was set aside and the house was ordered to be transferred in favour of the respondent.

The last mentioned order was challenged by the appellant through a writ petition (W.P. No. 72‑R of 1964) before the High Court of West Pakistan, Lahore, which was ultimately disposed of by a learned Single Judge (Karam Elahee Chauhan, J.) of the said learned Court. The learned Judge observed that since the appeal of the respondent was dismissed by the Additional Settlement Commissioner as being barred by time "until and unless the Settlement Commissioner upset the findings on the point of limitation he had no jurisdiction to interfere in the matter" and referred to the decision of this Court in Syed Azmat Ali v. The Chief Settlement Commissioner P L D 1964 S C 260 in this behalf. He also found that the respondent had not filed any N. C. H. Form for the transfer of the house and, therefore, the property could have been disposed of in the earmarking process. He, accordingly, held that the disposal of the property in dispute in favour of the appellant herein through earmarking was legal and proper. On this view of the matter the order of the Settlement Commissioner, dated 16‑9‑1963 was declared to be without lawful authority and of no legal consequence and, therefore, set aside with the result that the order of the Additional Settlement Commissioner, dated 24‑6‑1963 became the only operative order left in the field. The upshot was that the transfer of the house in favour of the appellant under the earmarking scheme was upheld. This order was passed on 25‑11‑1966.

The respondent Habibullah Khan challenged the order of the learned Single Judge by a Letters Patent Appeal which was heard and disposed of by a Division Bench of the Lahore High Court. The learned Judges found that the appellant had, indeed, submitted a N.C.H. Form on 4‑12‑1959 and, consequently, the property could not legally be placed for disposal through the earmarking scheme. It was found that the appeal was liable to succeed on that short ground. Accordingly, the order of the learned Single Judge of the High Court was set aside and that of the Settlement Commissioner transferring the house in dispute in favour of Respondent No. 2 was restored.

Leave was granted by this Court to consider whether the order of the learned Settlement Commissioner was not bad because he had, while upsetting the order of the Additional Settlement Commissioner, not adverted to the question of limitation on which ground the decision in appeal was founded.

We have heard learned counsel for both the parties. Although the order of the Settlement Commissioner has not dealt with the question of limitation on which ground the appeal was decided by the learned Additional Settlement Commissioner but this defect pales into insignificance when we observe that the appellant had no entitlement to the transfer of the house in dispute at all. The learned Settlement Commissioner had, after referring to documentary evidence, found that the respondent No. 2 had submitted an N.C.H. Form on 4‑12‑1959. This being a finding of fact could not have been interfered with by the learned Single Judge, especially as it was based on the material on record in writ jurisdiction. In view of the finding that the occupant of the house had applied for its transfer on an N.C.H. Form, the property was not available for transfer through the earmarking process. The respondent who was a non‑claimant displaced person in possession of the house since 1947 and an applicant for its transfer could not, in law, be denied its transfer.

In these circumstances we are not inclined to interfere with the order of the Letters Patent Bench upholding the transfer of the house in favour of the respondent.

The upshot is that this appeal fails and is dismissed hereby. The parties, however, will be left to bear their own costs.

M. Y. H. Appeal dismissed.

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