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C.P. No. 571 of 1977, decided on 28th November, 1978.

(On appeal from the judgment and order, dated 25‑7‑1977 of the Lahore High Court at Lahore in Writ Petition No. 991/R of 1977).

‑‑‑Article 185(3) & 199‑‑High Court dismissing Constitutional petition in limine‑‑Leave to Appeal granted to consider contention that High Court order suffered from misreading and non‑reading of evidence.

Malik Shaukat Ali, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

‑This is a petition for special leave from an order, dated 25th of July, 1977, whereby a learned Judge of the Lahore High Court at Lahore has dismissed in limine the Writ Petition No. 991 of 1977 filed by the present petitioners against the respondents herein.

The dispute in this case relates to the transfer of Shop No. 69/2‑A situated in Sahiwal Town, Tehsil Shahpur District Sargodha abandoned by its evacuee‑owner, Lala Bhim Sen.

The petitioners before us are the sons of one Basit Ali who had filed his CS. Form No. S R D 877 on the 14th of July, 1959 giving the number of the shop as 70/2. On this on the 25th of July, 1960, Mr. Nazir Ahmad Khan Leghari, Deputy Settlement Commissioner passed the order: "Undisputed. Transferred to Basit Ali. Issue P. T. C." Thereafter, on the 29th of October 1966 Muhammad Siddique respondent No. 1 filed his L.S. Form No. SRD/82 for the transfer of Shop No. 69/2‑A belonging to Bhim Sen, evacuee, in his possession since 1956 under Settlement Scheme No. VIII. Basit Ali contested the application before Mir Abdul Majid, Deputy Settlement Commissioner, Sargodha. His case was that he had already been transferred the shop No.69/2‑A Sahiwal for which he had filed a C.S. Form No. SRD/877, dated 14th of July, 1959 but had inadvertently given the number of shop in his possession in his form and the affidavit filed by him as 70/2 instead of Shop No.69/2‑A Sahiwal. The learned Deputy Settlement Commissioner took pains to go through the record of the Settlement Department and on examination of survey record, Evaluation Register and other relevant record and document he agreed with the contention put forth by Basit Ali that he was in reality the occupant /transferee of Shop No. 69/2‑A and not Shop No. 70/2 Sahiwal. This finding was based on the oral as well as the documentary evidence on the record. He further observed that it was proved that one Noor Hussain local, an old tenant since 15th of August, 1947, was in occupation of the Shop No.70/2 which was thrice put to auction and eventually sold to Basit Ali who had purchased it in auction for Rs.6,100 against its reserve price of Rs.720 on 27th August 1964. The learned Deputy Settlement Commissioner was therefore, convinced that Basit Ali was in fact the transferee of the Shop No.69/2‑A on the basis of C.S. Form No. SRD/877, dated 14th July, 1959 submitted by him as well as the transferee of Shop No. 70/2 purchased by him in open auction for which the P.T.D. had also been issued to him. He further observed that Muhammad Siddique was a tenant and a licensee of Basit Ali who was the legal transferee of the Shop No. 69/2‑A.

Respondent No.1unsuccessfully went up in appeal and then in revision against the order which were dismissed. He then filed the Writ Petition No. 1014‑R of 1969 which was disposed of by a learned Judge of the Lahore High Court at Lahore on the 14th April, 1975. He observed that the Deputy Settlement Commissioner, it must be said, had taken great pains in going into this dispute. But in his opinion the central fact as to whether Basit Ali deceased was in possession of the shop in question was not resolved on the basis of any positive evidence. He therefore, set aside the impugned orders passed by the Settlement Authorities and remitted the case to them for a fresh decision in accordance with law.

After the remand the case was disposed of by Mr. James Maula Bakhsh, Deputy Settlement Commissioner, Sargodha on the 21st of July, 1976. In his opinion the possession of the shop in dispute by Basit Ali was not proved and, therefore, he was not entitled to its transfer. On the contrary Muhammad Siddique respondent was found to be in continuous possession of the shop and consequently he was entitled to its transfer on his L.S. Form No. SRD/82 submitted under Settlement Scheme No. VIII.

It appears that in the meanwhile Basit Ali had died and the petitioners, as his legal heirs, filed the Writ Petition No. 991‑R of 1977 under Article 199 of the Constitution of 1973 against this order passed by the Deputy Settlement Commissioner, Sargodha on the 21st of July, 1976. But on the 25th of July, 1977, a learned Judge of the Lahore High Court at Lahore dismissed in limine their writ petition. Hence this petition for special leave from the order passed by the High Court.

Before the High Court it was inter alia, contended by the learned counsel for the petitioners that the finding of the Deputy Settlement Commissioner that Basit Ali was not in possession of the shop in dispute was contrary to the voluminous documentary evidence and, therefore, the finding though one of fact, could be assailed in this Court. He had relied on copies of the survey list for 1953‑54 and upto 1957‑58; copies of the assessment register for the year 1959, statement of Muhammad Sharif Khan, Settlement Inspector, the C.S. Form filed by Basit Ali, application of Basit Ali to the Administrator, Municipal Committee, Sahiwal, dated 16‑2‑1959 containing an admission in his own favour and the plan of the property. But in repelling this contention the learned Single Judge observed that the predecessor of the petitioners had applied for the transfer of Shop No. 70/2 and the same number was mentioned in the affidavit accompanying his C.S. Form. Mr. Nazir Ahmad Leghari, A.S.C. who transferred the shop to him on the 26th of July, 1960 was examined by the Settlement Commissioner but he did not evidently support the petitioners. In these circumstances the Deputy Settlement Commissioner on consideration of the evidence transferred the shop in dispute to the respondent.

In this Court before us the learned counsel for the petitioners has submitted that Shop No. 70/2, adjacent to the shop in dispute bearing No. 69/2, belonging to a different evacuee owner named Radha Kishan, was included in the auction list and put to auction thrice. It was eventually purchased by Basit Ali in auction on the 21st of August, 1964 for Rs.6,100. Neither the Deputy Settlement Commissioner nor even the High Court have attached due importance to the unequivocal evidence of Muhammad Sharif Khan who was warning as the Inspector Rehabilitation Incharge, Sahiwal from 1949 to 1969. He deposed that in 1959 there was a survey under him of Sahiwal Town for which a survey register with entries from 1 to 322 was prepared after verification at the spot and that entry at Serial No. 138 of the register showing Basit Ali in possession of the shop in dispute was in his hand and that Muhammad Siddique respondent was not in possession of the shop. The witness further deposed that at the time of the disposal of the shop in dispute he had accompanied Mr. Nazir Ahmad Leghari, A. S. C. to the spot. In column 4 of the C.S. Form No. 877 filed by Basit Ali the number of the shop was entered as 70/2 which was scored out by the witness with blue pencil and corrected as 69/2‑A. It does not appear from the impugned order passed by the High Court that the statement of Mr. Nazir Ahmad Leghari, A.S.C., on which reliance was placed, was read as a whole. In fact from his cross‑examination it transpires that this change in the number of the shop must have been made on the 25th of July, 1960 at the time of this allotment. The impugned order passed by the Settlement authority was based oil misreading and non‑reading of the material evidence on the record.

On a careful perusal of the record we find that this case requires further consideration. We, therefore, grant leave to appeal to the petitioners.

Security Rs.1,000.

Status quo to be maintained till the disposal of the appeal.

M.I. Leave granted.

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