GHULAM SARWAR Versus SETTLEMENT COMMISSIONER
This matter arises from a petition for leave to appeal against the judgment of the Lahore High Court dismissing review petitions in an urban settlement case. The core legal question concerns the competing rights of a subsequent auction-purchaser and a non-claimant in possession who had submitted a transfer form. The Supreme Court held that the auction of the property in dispute was illegal because the respondent, being in possession and having submitted an N.C.H. form, was entitled to the transfer of the property prior to any auction taking place. The Court established that a finding of fact regarding the submission of a transfer form, based on official reports and orders, cannot be easily disturbed, and a displaced person in possession who applied for transfer holds a superior right over a subsequent auction-purchaser. Consequently, the Supreme Court dismissed the petitions for leave to appeal.
- Whether an auction of property can legally take place without disposing of a pending transfer form submitted by a non-claimant in possession?
- Does a displaced person in possession who applied for transfer have a superior right over a subsequent auction-purchaser?
- Will the Supreme Court interfere with concurrent findings of fact regarding the submission of a transfer form?
1. JUDGMENT ,
2. MUHAMMAD AFZAL ZULLAH, J ‑‑ Leave to appeal has been sought from judgment dated 4‑7‑1981 (in these two petitions: C.P.No.829/1981 and C.P.‑No.830/1981) of the Lahore High Court; whereby two review petitions arising out of an urban settlement case, were decided against the petitioner.
3. The petitioner is a transferee through auction of the property in dispute held in May, 1971. While predecessor‑in‑interest of the respondent‑‑Wazir Muhammad is a non‑claimant in possession who had sought transfer through an N.C.H. form submitted in 1968, It has been held that without the disposal of Wazir Muhammad's from the auction could not have taken place. Accordingly it was held that Waziz Muhammad was entitled to the transfer. The petitioner auction‑purchaser has sought leave to appeal.
4. In face of the aforenoted simple` proposition that Wazir Muhammad being in possession of the property and having submitted an N.C.H. form for its transfer was entitled to the transfer of the property unless there was an un-surmountable hurdle, which in the circumstances of the case was none, the auction of the property was illegal, learned counsel for the petitioner contended that it has not been established that Wazir Muhammad had submitted any form. He further argued that the High Court for the same reason visualised the other position that even without the submission of the form Wazir Muhammad being in undisputed occupation would be entitled to the transfer of the property under the prevailing law, at the relevant time.
5. We do not agree with the learned counsel. Regarding the submission of the form by Wazir Muhammad suffice it to say that the learned Judge in the High Court relying on a report of a Settlement Inspector and the order of the Deputy Settlement Commissioner dated 4‑5‑1968 held that N.C.H. form was in reality submitted by Wazir Muhammad. This being finding of fact if other possibilities vis‑a‑vis the legal positions prevailing at different stages of litigation were visualised, it would not dilute the effect of the findings of fact. It is not necessary to deal with the other aspects of the case. Contest before us being between a displaced person in possession who had made an application for transfer and a subsequent auction‑purchaser, no justification has been made out for interference in the discretionary jurisdiction of this Court to grant leave to appeal. These petitions accordingly are dismissed.
6. M. I. ??????????????????????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.