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Petitioner: MUHAMMAD HANIF VS Respondent: ABDUL HAQUEHonorable Justice MUHAMMAD YAQUB ALI
1969 S C M R 135
1969 S C M R 135
Present: Hamoodur Rahman, Muhammad Yaqub Ali and Abdus Sattar, JJ
MUHAMMAD HANIF‑Petitioner
versus
ABDUL HAQUE‑Respondent
Civil Petition for Special Leave to Appeal No. 173 of 1968, decided on 17th October 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 24th January 1968, in j L. P. A. No. 128 of 1965).
Displaced Persons (Compensation and Rehabilitation) Act (XXVIH of 1958)---
---Sch., Part I‑House divisible and divided into two independent units‑There can be no competition of entitlement between parties about giving preference to one as direct claimant against the other claiming transfer on basis of possession of his son‑Divisibility of property‑Not open to judicial review in writ petition‑Constitution of Pakistan (1962), Art. 98.
Fazl‑ur‑Rahman Khan, Advocate Supreme Court instructed by Wajid Hussain, Attorney for Petitioner.
Nemo for Respondent.
Date of hearing : 17th October 1968.
ORDER
MUHAMMAD YAQUB ALI, J.‑Leave is asked for to appeal from an order of the High Court of West Pakistan dismissing Writ Petition No. 628‑R of 1964 filed by the petitioner against the order of the Chief Settlement Commissioner whereby he divided the house in dispute and transferred it to the parties according to their respective possession.
The Chief Settlement Commissioner found that the house was "perfectly" divisible and considered it hard to oust the respondent who had been in possession of a portion of the house since 1948. He was fortified in the view that the house was divisible as the parties are claimant allottees had lived separately in this house all along. A learned Single Judge accepted the writ petition moved by the petitioner and set aside the order of the Chief Settlement Commissioner on the view that the petitioner being a direct claimant had a preferential right for transfer of the whole house against the respondent, but this view did not find favour with the Letters Patent Bench which accepted the appeal filed by the respondent and dismissed the writ petition.
As observed in numerous cases the division of a property by the Settlement Authorities into more than one residential or commercial units is not open to judicial review by the High Court in writ jurisdiction. The view taken by the Letters Patent Bench is, therefore, patently correct. The house having been divided into two independent units there was no competition of entitlement between the parties to give preference to the petitioner as a direct claimant against the respondent who had applied for transfer on the basis of the possession of his son.
The petition for leave to appeal is accordingly found to be without any merit and dismissed.
Leave refused