ABDUL SHAKURUL SALAM, J.--Property No. S-00 It-7, was burnt during 1947. It was reconstructed by various persons. Noor Elahi respondent No. 1 (since deceased and represented by his legal heirs) con--structed one shop and was allotted the same on 9th July, 1949 regularising his possession with effect from 24th December, 1947. On the advent of the settlement operation, he applied for its transfer. The Settlement Inspector submitted a report that "the small shop of Kaka (appellant) is a part and parcel of the shop and he being sub-tenant of Noor Elahi having not applied for the transfer, the shop in possession of Noor Elahi alongwith the small shop of Kaka be transferred to him." The report was approved by the Deputy Settlement Commissioner on 5th October, 1960. The appellant filed an appeal which was dismissed on the grounds inter alia, that the appellant did not hold any regular receipt to have filed the trans--fer form and that the appeal was barred by time.
This was vide order of the Additional Settlement Commissioner dated 28th November, 1962. The appellant filed a revision petition in which the learned Settlement Commis--sioner observed :- "He (the appellant) has drawn my attention to an application for transfer of the shop in question, marked A. 1, dated 30th. November, 1959. It appears that this application has been placed on the record after the dismissal of the petitioner's appeal. The learned counsel for the petitioner (appellant) has urged that this application was duly entertained in the relevant register at serial No. 2368. The crucial point for consideration however is whether a part of a dama--ged property in occupation of Muhammad Talib can be transferred to Nur Elahi merely because the former failed to put in his form within the prescribed period."
2. During the pendency of the appeal, transferee Noor Elahi (respondent No. 1) died on 17th March, 1970. No application for bring--ing on record his legal representatives, was filed by the appellant.
On 3rd April, 1971 an application bearing No. C. M. 3-71 was filed by one of the L. R. Praying for dismissal of the appeal having abated. Nearly a year later, the appellant filed C. M. 4 and 5/72 praying for bringing on record the legal representatives of the deceased-respondent and for con-- doning the delay in filing the application. Both sets of applications were ordered to be heard alongwith the main appeal.
3: Learned counsel appearing for the legal representatives of the deceased-respondent has vehemently contended that the appeal has abated because the deceased-respondent died on 17th March, 1970 and his legal representatives were not brought on the record, within the period of limita--tion. Even when it was brought home through C. M. 3/71, the appellant did not move in the matter until 23rd February, 1972. Grounds No. 3 in the application for condonation of delay that the appellant did not know of the death of the deceased-respondent, is untenable for the simple reason that both the deceased-respondent and the appellant were occupants of the adjoining premises that it would not be possible that the appellant would not come to know of the death of his neighbour. This being so, the deceased-respondent having died and his legal representatives having not been brought on the record in time, the appeal was abated automatically.
4. Learned counsel appearing for the appellant has strenuously contended* that the appellant had filed the appeal in the year 1966 and the same should be disposed of on merits notwithstanding the death of Noor Elahi respondent No. 1, especially when they are represented by their learned counsel.
5. We have gone through the record and the various orders passed by the Settlement authorities and the learned Single Judge. Appellant's first appeal before the Additional Settlement Commissioner was dismissed both on the ground of limitation as well as for the reason that there was no proof that he bad applied for transfer of the disputed shop ? Learned Settlement Commissioner also appears to be doubtful as to whether the appellant had filed any form. He however thought that the crucial question was whether the respondent No. 1 could be transferred the portion of the shop in dispute. This was not the crucial question. The crucial question was whether the appellant had filed the form and whether the appeal was filed in time. The order of the learned Settlement Commis--sioner has been set aside by the learned Single Judge on the ground that the learned Settlement Commissioner had failed to take note of the reason that the appellate Court dismissed the appeal as barred by time and with--out adverting to the question of limitation the learned Settlement Commis--sioner had no jurisdiction to set aside the order. Learned Single Judge based his decision on the judgment of the Supreme Court. So it does not appear that the older under appeal calls for any interference, in any case, the appeal stands abated because the legal representatives of the deceased respondents were not brought on record within the period of limitation and the plea in ground No. 3 of the application of condonation of delay is un--tenable that the appellant did not come to know of the death, as be has said in Court that he attended the funeral of the deceased which is quite natural as well, both being neighbours.
6. For the aforesaid reasons, this appeal is dismissed but in the circumstances the parties shall bear their own costs.