SHAMIM PERVEZ And Others vs NOOR MUHAMMAD And Other
This matter concerns a petition for leave to appeal against a judgment of the Lahore High Court, which arose from an urban settlement dispute regarding the transfer of evacuee property. The core legal question was whether the High Court, in its constitutional jurisdiction, acted beyond its authority by dividing the disputed property between two sets of claimants based on their respective possession, rather than transferring the entire property to one party. The Supreme Court held that the High Court did not exceed its jurisdiction. The Court reasoned that the High Court’s decision to grant relief only to the extent of the portion in the respondents' possession was a valid exercise of its discretionary constitutional jurisdiction, rather than a formal division of property under settlement laws. Furthermore, the Court affirmed that the respondents, as direct claimants, held a superior claim over the petitioners, who were indirect claimants. The Court also rejected the argument that the respondents' appeal was time-barred, noting that the Settlement Commissioner had decided the revision on merits, thereby waiving the limitation issue. The petition was dismissed.
- Can the High Court in its constitutional jurisdiction grant partial relief to claimants by dividing property based on possession?
- Does a decision on merits by a Settlement Commissioner in revision proceedings cure a potential defect of limitation at the lower appellate stage?
- Are direct claimants entitled to preference over indirect claimants in the transfer of evacuee property?
ORDER
MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 29-11-1980 of the Lahore High Court; whereby a Letters Patent Appeal which had arisen out of an urban settlement case and which was filed by the respondents Nos. 1 and 2. Was allowed.
2. Ibrahim the predecessor-in-interest of the petitioner was transferred the house in dispute on the basis of the possession of his son who was an allottee. The respondents who were also in possession of a part of the property filed C.H. Form but without any application of mind, it was rejected. Their appeal before the Additional Settlement Commissioner was dismissed as the- barred. And their revision was dismissed mainly on the ground that other property had been transferred to some other members of the respondent's family. They challenged the orders of the Settlement Authorities before the High Court in its Constitutional jurisdiction. The petition was initially dismissed by a learned Single Judge. On their Intra-Court Appeal; they were held entitled to the transfer of the property. But the learned Judges keeping in view the basic need for settlement of displaced persons granted relief to the respondents only with regard to the portion in their possession. The petitioners successors-in-interest of Ibrahim who were the original transferees of the entire house have now sought leave to appeal.
3. Learned counsel has vehemently contended that the High Court has exceeded its jurisdiction by dividing the property into to parts on the basis of possession of both the parties. We do not agree with him. In reality instead of transferring the entire property to the respondents which could in law be transferred in their favour the learned Judges in the High Court declined to grant total relief in exercise of Constitutional jurisdiction which admittedly is discretionary, Therefore in strict sense of the term the authority which vests in the Settlement functionaries for "division" of evacuee property has not beer exercised by the High Court.
4. Learned counsel also contended that the Settlement Commissioner was right in rejecting the respondent's claim to the transfer of the property in dispute because at least three other properties were transferred to the same family. When questioned as to whether those transfers were barred under any law the learned counsel replied in the negative. That being so the ground on which the Settlement Commissioner excluded the respondents was not available in law.
5. As regards competition between the parties it suffices to observes that while the petitioner's side were indirect claimant the respondents were direct claimants for the transfer of the same property.
The preference under the relevant law was obviously to be given to the respondents. But the High Court for good reasons declined to grant the relief in the discretionary jurisdiction to the respondents to the extent of the property they were not in possession.
6. The last argument of the learned counsel for the petitioners that the appeal of the respondents before the Additional Settlement Commissioner was the-barred is also without force because the Settlement Commissioner while disposing of the revision petition gave decision on merits and did not choose to dismiss the same on the ground of the bar of limitation at the lower appellate stage.
7. None of the arguments raised by the learned counsel-has any force. This petition is accordingly dismissed.