SANAULLAH BHUTTA Versus NIAZ AHMAD

ORDER

1. S. USMAN ALI SHAH, J.‑‑ ‑Leave to appeal has been sought by the petitioner against the order of the Lahore High Court dated 25‑1‑1986, whereby his writ petition was dismissed.

2. Karim Bakhsh father of the petitioner filed C.H. Form for the transfer of the shop in dispute situate in Property No.S‑38‑R/99, Circular Road, Lahore, which was in possession of the petitioner and on the basis of which the same was transferred to him vide P.T.D. dated 8‑12‑1959. The rear portion of the said shop was encroached by one Muhammad Hussain Pahlwan an occupant of the adjoining shop. At the time when the shop of Pahlwan Muhammad Hussain was put to auction Karim Bakhsh filed an application for deletion of the encroached area behind the shop from the auction. This application was rejected by the Deputy Settlement Commissioner vide his order dated 23‑1‑1960. A review petition against this order before the Addl. Settlement Commissioner was also dismissed in default on 18‑2‑1960 and the auction was confirmed in the name of Mst. Sahib Jan on 15‑4‑1960. Karim Bakhsh filed appeal before the Addl. Settlement Commissioner for the 2nd time who vide his order dated 28‑7‑1960 observed that the portion which had been taken away in an un‑authorized manner must be restored to the petitioner and the corresponding reduction in transfer price be given to the auction‑purchaser. However, P.T.D. was issued of the entire transferred price to the auction‑purchaser on 2‑3‑1967.

3. Karim Bakhsh applied on 13‑5‑1967 for demarcation of the shop in dispute according to the order passed by the Addl. Settlement Commissioner dated 28‑7‑1960 which was rejected on 27‑8‑1975 by the Deputy Settlement Commissioner. The petitioner then filed Constitutional petition in the Lahore High Court which was also dismissed vide impugned judgment.

4. We have heard the learned counsel for the parties and perused the record. The learned counsel for the petitioner contended that the disputed portion falls on the back of the petitioner's shop which was forcibly encroached and occupied by Muhammad Hussain Pahlwan. He also urged that the shop of the petitioner is not divisible and the encroached portion was restored to the petitioner by the order of the Additional Settlement. Commissioner dated 28‑7‑1960 and various applications were given by the peitioner's father for the implementation of the said order for demarcation of the back portion of the shop but this aspect of the case has been totally ignored by the learned Judge of the High Court while dismissing the writ petition of the petitioner.

5. After hearing the learned counsel for the petitioner that the case of the petitioner is arguable and needs examination of this Court. Leave to appeal is, therefore, granted.

6. Security for costs in the sum of Rs.5,000.

7. Appeal is to be made ready on the present record with permission to the parties to add other necessary documents, if any.

8. A.A./S‑480/S Leave granted.