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Civil Petition No. 1265 of 1980, decided on 10th September,1985.
(Against the judgment and order, dated 2‑6‑1980 of the High Court, Lahore, in Writ Petition No. 200‑R of 1976).
‑‑‑Arts. 185(3) & 199‑‑Constitutional jurisdiction, exercise of‑‑Settlement matter‑‑Finding of fact concerning demarcation of evacuee property‑ Disturbed by High Court in Constitutional jurisdiction‑‑Petition for leave to appeal‑‑Order of High Court being fully borne out from record and conclusions being such as could consistently be drawn and order impugned being eminently a just and fair order, leave to appeal refused.
A.R. Shaukat, Senior Advocate Supreme Court instructed by Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 10th September, 1985.
The petitioners against whom a constitutional petition filed by the respondent No. 1 in respect of transfer of Khasra No. 2915 measuring 3 Marlas 195 sq. ft. in the urban area of Raj Garh, Lahore, was allowed, seek leave to appeal against the judgment of the Lahore High Court, dated 2‑6‑1980.
2. The petitioners undisputedly got transferred a property No. SW‑IV‑49‑S‑19. A dispute subsequently arose with regard to exact limits thereof. The petitioners' contention was that it comprised two Khasras Nos. i.e., 2916 measuring 7 Marlas 83 sq.ft. and 2915 measuring 3 Marlas 1.95 sq. ft. The latter served as the courtyard of the house in the former Khasra number. These both belonged to the same evacuee. By a very elaborate order and after fully inquiring into the dispute, the Deputy Settlement Commissioner by an order, dated 12‑7‑1971 held that the two properties were separate that the transfer of the house to the petitioners was confined to 2916 Khasra number and the demarcation was done accordingly separating Khasra No. 2915 measuring 3 Marlas and 195 sq.ft. Aggrieved by this order, the petitioners filed a revision before the Settlement Commissioner who allowed it on 16‑10‑1975 holding that the house extended to the other Khasra number also. In the constitutional jurisdiction, the order of the Settlement Commissioner was held to be without lawful authority and of no legal effect and that of the Deputy Settlement Commissioner was restored.
3. The learned counsel for the petitioners contended that a finding of fact had been recorded by the Settlement Commissioner while deciding the revision petition. It concerned with the demarcation of the property of which P. T. D. was held by the petitioners. It was an order competently passed showing awareness of all the relevant facts. Such an order, according to the learned counsel for the petitioners, could not be disturbed in the constitutional jurisdiction.
4. Indeed, before the competent Settlement authorities the controversy of facts was to be resolved. The Deputy Settlement Commissioner has refused to a number of factors all consistently established from the record for holding that the two Khasras were separate that on one was located the house and the others was a building site yet to be built upon. Notwithstanding that both these plots belonged to the same owner it was held that they had their distinct existence and the one could not be held to be the pert of the other. The Settlement Commissioner after noting the contentions of the respondents drew his conclusion as follows:‑‑
"After going through the record, the written arguments of the parties and different orders passed by the D.S.C. I have come to the conclusion that the property consisting of Khasras Nos. 2915 and 2916 is owned by the one evacuee namely Dhani Ram. The assertion of the respondent that he was in possession of the plot in dispute in pre‑partition days is falsified by his own conduct of not filing a form of transfer under Settlement Scheme No. VI but a subsequent scheme. The urge of the petitioner that she informed the Department of the construction being carried out by Meraj Din shows that Meraj Din was not in possession of the plot as claimed by him. I, therefore, feel that the property in dispute is a part of the main house and is not a separate entity."
After a review of the nature of the controversy the material on the record and inference drawn, in High Court made the following observations: ‑‑
"I am of the view that the impugned order of the Settlement Commissioner dated 10‑10‑1975 Is no order in the eye of law. It has been made without appreciation of the relevant and material factors and in fact the considerations on the basis of which the learned Settlement Commissioner has proceeded to hold that Khasras Nos. 2915 is a part of property S‑19 are irrelevant. The fact that Khasra No. 2915 and 2916 were owned by one evacuee does not mean that they comprise one property. It is possible the; one evacuee may have abandoned many properties adjacent to each other. Further, the fact that the petitioner could not establish that he was in possession since before independence, could not lead to the result that property No. 2915 was a part of Khasra No. 2916. The last consideration that the contesting respondents had informed the Department of construction being made by Meraj Din similarly could not lead to the conclusion that Khasra No. 2915 was a part of property S. 19."
5. We find that the observations of the High Court are fully borne out from the record and the conclusions are such as can consistently be drawn and the order passed by the High Court is eminently a just) and fair order. No further question of law arises in the case. Leave to appeal is, therefore, refused.
M. I. Leave refused.
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