1. MUHAMMAD HALEEM, J.--The petitioner seeks special leave to appeal against the judgment of the Lahore High Court Lahore, dated 24th of January, 1975, by which Writ Petition No. 343-R of 1969 was dis--missed.
2. The dispute relates to the transfer of a small house situate in Village Bangial, Tehsil and District Jhelum. As the petitioner was in posses--sion of the house since 1957, he applied for its transfer under Settlement Scheme No. VIII on 15th of May, 1967, and on 27th of May, 1967, it was transferred to him by the Assistant Settlement Commissioner. Respondent No. 4 appealed against this order and on 31st of July, 1967, he appeared before the Deputy Settlement Commissioner and stated that he would withdraw the appeal which was accordingly dismissed as withdrawn. Thereafter, his son Rehmat Khan made tan application for its restoration stating therein that his father was insane and in support of it he filed a medical certificate. The Deputy Settlement Commissioner, by order dated 9th of August, 1967, accepted his plea and revived the appeal. The petitioner, thereupon, applied to the Deputy Settlement Commissioner for the setting aside of the order on the ground that it was passed ex parte but did not succeed as it was dismissed on 18th of October, 1967.
3. Thereafter, the Deputy Settlement Commissioner, by order dated 19th of October, 1967, transferred the house to respondent No. 4.
4. The petitioner went in revision before the Settlement Commissioner but did not succeed as it was dismissed on 10th of December, 1968. He next filed the aforementioned writ petition, which also met the same fate. It was contended before the High Court : firstly, that the Deputy Settle--ment Commissioner was not competent to revive the appeal which was dismissed as withdrawn ; secondly, that respondent No. 4 had no entitlement as he was not in possession of the house ; and thirdly, that the Settlement Commissioner had misread the evidence in regard to the insanity of respondent No. 4. -The High Court held that as the petitioner had not appealed against the order dated 18th of October, 1967, he was debarred from raising this contention. In regard to the entitlement of respondent No. 4, the High Court next held that he had filed the application for its transfer which was pending for disposal when the house was transferred to the petitioner.
5. Therefore his entitlement had also to 'be taken into consideration before transferring the house to the petitioner. Again, the High Court held that as respondent No. 4 was found to be in possession of the house this question could not be agitated as it was one of fact. Lastly the High Court relied on the finding of the Settlement authorities that respondent No. 4 was insane and, therefore, the revival of the appeal was justified as the petitioner was instrumental in its fraudulent withdrawal.
6. The petitioner seeks leave on the ground that the Deputy Settlement Commissioner had no power to revive the appeal after its withdrawal by respondent No. 4 as it was not a case of dismissal in default. The learned counsel next submitted that the medical certificate does not show that respondent No. 4 was insane and, therefore in the absence of unequivocal evidence to this effect, the withdrawal of the appeal could not be questioned in the context of the fact that he had himself appeared and withdrawn the appeal. He also invited our attention to the medical certificate wherein it is not stated that he is insane but the Deputy Settlement Commissioner held him to be insane merely from his visual observation. The learned counsel urged that if the finding of insanity was not established from the record, the question arises as to whether the Deputy Settlement Commissioner is competent to revive the appeal when it was voluntarily withdrawn by respondent No. 4 ; and on this premise the order of the Deputy Settlement Commissioner dated 29th of October, 1967, was erroneous. The other orders, according to him, were dependent on it and if that is found to be without jurisdiction the others also cannot stand. These submissions need consider action. Accordingly, leave to appeal is granted to the petitioner.
7. Security for costs Rs. 1,000. The interim order is confirmed. The appeal arising out of this petition should be heard on the present record with liberty to the parties to file additional documents, if any.