ABDUL HAMID ETC. vs RASHID AHMED ETC.

1. ' MUHAMMAD AFZAL ZULLAH, J. -This petition Culls in question, order dated. 16th December, 1978 passed by the Lahore High Court, whereby petitioners' Inter-Court Appeal arising cut of the disposal of a property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was dismissed in limine.

2. ' The dispute related to a chaubara on a shop in Raja Bazar, Rawalpindi. Noor Hussain, predecessor-in-interest of the petitioners, a local was in possesssion thereof since before 1947. He also claimed to be an allottee of Chaubara as a residential unit. He applied for its transfer on L.H.

3. Form which was rejected and the property was ordered to be auctioned. Respondent No, 1 was successful bidder. The Chuabara and the shop were claimed by him to be the parts of the same commercial unit which was put to auction. Prolonged litigation between the parties ultimately resulted in a remand order dated 17th January, 1977 by the Settlement Commissioner ; who remitted the case to the Additional Settlement Commissioner with the observation that chaubara might be transferred as a converted property under memo No, 7520-PL-Reh/60 dated 29th June 1960 (in fact Press note dated 3-5-1960).. The petitioners challenged the remand order in the High Court through a writ petition but without any success.

4. ' The Additional Settlement Commissioner by his order dated 31st May, 1977 held that the chaubara was being used as a hotel since before The Partition and that the petitioners' claim about its conversion to the existing use after Partition, was without the support of any reliable evidence. It was found to be .a commercial unit transferable as such and the petitioners' plea for its transfer as a converted property was not accepted. The transfer in favour of the respondent was thus confirmed. The petitioners again filed a writ petition in the High Court which was dismissed for the reason that the impugned findings of fact did not call for interference. The petitioners Inter-Court Appeal met the same fate. Therefore, this petition for special leave to appeal.

5. Learned counsel contends that after a finding by the Settlement Commissioner (in remand order) that the chaubara could be transferred as a con-verted property, it was not open to the Additional Settlement' Commissioner to hold that it was not a converted property and that in any case, in fact, the Chaubara was converted into Musafarkhana by the petitioners' predecessor-in-interest after Partition. Therefore, it should have been transferred under the aforementioned memo. (Press Note).

6. ' We do not see any justification for disturbing the finding of fact relating to the nature of the property at the time of Partition and thereafter. It may, however, be observed that as stated by the learned counsel Chaubara was initially sought to be transferred as a residential unit so much so that the petitioners also challenged the remand order passed by the Settlement Commissioner with the direction that the question of conversion might also be considere d. We do not agree with the learned counsel that the Settlement Corn missioner had not left it open to the Additional Settlement Commissioner to confirm the transfer of the Chaubara as a commercial unit alongwith the shop underneath the same. The interpretation of the remand order by the High Court is unexceptionable. The memo (Press note) relied upon by the learned counsel also did not restrict the exercise of judgment and discretion in this behalf by the Additional Settlement Commissioner.

7. This petition has no force and is accordingly dismissed.