Mst. KALSOOM BIBI And Others vs BASHIR AHMAD And Another
This matter concerns a dispute over the allotment of a 'Chobara' (upper room) situated above a shop in Hamayun Bazar, Sheikhupura. The petitioners, legal representatives of the original allottee Rao Hakim Ali, challenged the transfer of the Chobara to respondent No. 1. Initially, an Assistant Settlement Commissioner transferred both the shop and the Chobara to Rao Hakim Ali. However, the Additional Settlement Commissioner reversed this, ruling that the Chobara was an integral part of the shop, which had been allotted to respondent No. 1. This decision was upheld by the Settlement Commissioner, the High Court, and in a Letters Patent Appeal. Before the Supreme Court, the petitioners argued that the shop and Chobara were distinct properties with separate numbers and thus could not be transferred as a single unit. The Supreme Court held that this contention involved a question of fact that was never raised before the Settlement authorities. Furthermore, the petitioners' predecessor had previously conceded that the shop and Chobara constituted a single unit. Consequently, the Court refused to entertain this new plea in writ jurisdiction and denied leave to appeal.
- Can a party raise a new question of fact in writ jurisdiction that was not raised before the lower settlement authorities?
- Is a concession made before settlement authorities regarding the nature of a property binding on the parties in subsequent appellate proceedings?
ORDER
SAAD SAOOD JAN, J.---The contest between the parties is about a Chobara which overlies a shop in Hamayun Bazar, Sheikhupura. Both parties are non-claimants. The Chobara was allotted to Rao Hakim Ali, predecessor-in---interest of the petitioners, while the shop was allotted to respondent No.1. When the settlement operations started an Assistant Settlement Commissioner transferred the Chobara alongwith the shop to Rao Hakim Ali. Respondent No.1 filed an appeal before the Additional Settlement Commissioner. The learned Additional Settlement Commissioner set aside the order of the Assistant Settlement Commissioner holding that he was not competent to make an order of transfer. Before him it was common ground between the parties that the shop and the Chobara were one 'unit. The Additional Settlement Commissioner thought that the Chobara was part of the shop and therefore, it should be given to respondent No.1. He made an order accordingly. Rao Hakim Ali preferred a revision petition before: the Settlement Commissioner but it, was dismissed. He then filed a writ petition in the High Court but that too was dismissed. 'He preferred a Letters Patent Appeal. That too remained unsuccessful. His legal reprehensive now seek leave to appeal from this Court.
2. The contention on behalf of the petitioners is that the Chobara and the shop were two different properties bearing different numbers and as such these could not be transferred to one person. It is to be noticed that the question whether the shop and the Chobara were two different properties bearing different numbers was one of fact. This question was not raised before the Settlement authorities. In fact the case of the predecessor-in-interest of the petitioners before the said authorities was that the Chobara and the shop were one unit. It is 'therefore difficult to entertain this contention of the petitioners in writ jurisdiction. Leave is refused.