ABDUL HAMID vs MUHAMMAD IBRAHIM AND 2 Other
This matter arises from a petition for special leave to appeal against an order of the High Court, which had dismissed the petitioner's writ petition challenging the horizontal division of a composite property by the Settlement authorities. The property, consisting of two floors, was occupied by members of a single family. The Settlement authorities transferred the first floor jointly to the petitioner and his brother, and the ground floor to the respondent. The core legal questions involved whether a joint transfer of property to two brothers without their explicit request was legal, and whether the petitioner could raise this contention for the first time before the apex court. The Supreme Court held that the objection regarding the joint transfer was not raised before the Settlement authorities despite available opportunity, and that the division between family members was substantially just. Consequently, the Court refused to grant leave to appeal and dismissed the petition, laying down the principle that pleas not raised before lower forums cannot ordinarily be entertained.
- Can a party raise an objection regarding joint transfer for the first time before the Supreme Court if it was not raised before the Settlement authorities?
- Whether the horizontal division of a composite property among family members by Settlement authorities warrants interference under special leave to appeal?
1. S. A. RAHMAN, J.-The parties were in possession of a com--posite property which was finally divided horizontally by the Settlement authorities. The petitioner along with his brother, Abdul Aziz, was given the first floor and the ground floor was ordered to be transferred to Muhammad Ibrahim through his were, Mst. Fazal Bibi. The petitioner challenged the order of the Settlement authorities by a petition for a writ in the High Court but was unsuccessful. He now seeks special leave to appeal.
2. The respondent, Muhammad Ibrahim, is married to a real sister of the petitioner and Abdul Aziz who are brothers. It would thus appear that the whole building which consists of two floors, was in fact occupied by one family. The complaint of Mr. Gul Muhammad Khan, on behalf of the petitioner; is that he had been jointly given with his brother, Abdul Aziz, the first door of which he was not in possession, whereas he was in possession of a room on the ground floor. He also contends that a joint transfer to the petitioner and his brother was not legal unless it was asked for by the two brothers in agreement.
3. The position of possession is far from clear from the docu--ments on record. From the order of the Settlement Commissioner with powers of the Chief Settlement Commissioner, appearing at page 28 et seq, it appears that the petitioner and his brother were in occupation of the first floor along with a room on the ground floor. The point that the petitioner and his brother did not apply for a joint transfer, was not raised before the Settlement authorities, although an opportunity for such a contention existed. We, therefore, do not see much substance in the objection realized now. On the whole, therefore, it appears to have been a division between the parties who all belong to one family, and the order being substantially just, we are not inclined to grant (cave to appeal in this case.
4. The petition is dismissed.