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Petitioner: SANAULLAH BHUTTA VS Respondent: NIAZ AHMAD
1991 S C M R 1221
1991 S C M R 1221
Present: Saad Saood Jan and S. Usman Ali Shah, JJ
Ch. SANAULLAH BHUTTA‑‑Petitioner
versus
Sh. NIAZ AHMAD and others‑‑Respondents
Civil Petition for Special Leave to Appeal No.337 of 1986, decided on 20th September, 1989.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 25‑1‑1986, passed in Writ Petition No.436‑R of 1976).
Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑
‑‑‑‑S.10‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Transfer of shop in favour of petitioner‑‑‑Rear portion of shop having been encroached upon by the occupant of adjoining shop, petitioner applied for deletion of such portion from the auction of said adjoining shop but his prayer was rejected so also his review petition‑‑‑Petitioner's appeal, however, was accepted wherein Appellate Authority ordered that the portion which had been taken away in an unauthorized manner must be restored to petitioner and corresponding reduction in transfer price be given to auction‑purchaser of the adjoining shop‑‑‑Appellate Authority's order, was, however, not complied with‑‑‑Petitioner's Constitutional petition was also dismissed by High Court‑‑‑Leave to appeal‑‑‑Petitioner's contention was that petitioner's shop was not divisible and encroached portion was restored to petitioner by the Appellate Authority but order had not been implemented; that such aspect of the case had been totally ignored by High Court while dismissing Constitutional petition‑‑‑Petitioner's case being arguable needed examination‑‑ Leave to appeal granted.
Ch. Khalil‑ur‑Rehman, Senior Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Petitioner.
Sh. Muhammad Nasim, Advocate Supreme Court and Walayat Umer Ch. Advocate‑on‑Record for Respondents Nos.l to 7.
Date of hearing: 20th September, 1989.
ORDER
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.
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.
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.
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.
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.
Security for costs in the sum of Rs.5,000.
Appeal is to be made ready on the present record with permission to the parties to add other necessary documents, if any.
A.A./S‑480/S Leave granted.