M. BURHANUDDIN KHAN, J. -By this petition leave is sought against the judgment and order of the Lahore High Court, Rawalpindi Bench dated 21-10-1981, in R. S. A. No. 125 of 1980 where by the appeal of the petitioner was dismissed against the order of the Additional District Judge, Rawalpindi dated 9-10-1979
2. The facts which are relevant for the purpose of this petition are as T follows: House No. B/15, Liaqat Road, Rawalpindi was evacuee property and its owner was Mst. Vishma Wanti, widow of R.I Sahib Mohan Lal Kapur. Respondent was in possession of the said house and consequently on promulgation of Displaced Persons (Compensation and Rehabilita--tion) Act respondent Nur Muhammad applied for the transfer of the said house under Settlement Scheme No. 1, shops Nos.
B/32, B/33, B/34 and B/35 are also situated close to house No. B/15. These shops were owned by a different evacuee namely Gobind Ram but were allotted to the respondent by order of the Deputy Settlement Commissioner, Rawalpindi, dated 18-5-1960. Respondent Nur Muhammad had entered into an asso--ciation with one Muhammad Hanif but later on they fell out as Muhammad Hanif was seeking the transfer of shop R/32 for himself, who, vide order dated 23-6-1960 got a P. T. D.
Issued in his favour and the matter was remanded to the Deputy Settlement Commissioner for reconsideration. Muhammad Hanif filed a revision petition before the Settlement Commis--sioner which was rejected but at the same time it was observed that transfer of shop in favour of respondent Nur Muhammad could not be ordered and the same should be put to auction. Nur Muhammad then filed a revision petition under section 20(2) of the Displaced Persons Act, 1958 before the Chief Settlement Commissioner which was dismissed vide order dated 15-4-1961.
Aggrieved from this order Nur Muhammad respondent filed a Writ Petition in the Lahore High Court which was accepted and the order of the Chief Settlement Commissioner was set aside and the original order by which the shop in question was originally transferred by the D. S. C. To the petitioner was declared to be operative, vide judgment dated 14-5-1968.
3. Amir Ahmad, predecessor-in-interest of the petitioner who was in physical possession of shop No. R/32 on knowing that the shop was available for transfer, applied for its transfer on 30-9-1966 under Settlement Scheme No. VIII. The Settlement Department refused to transfer the shop to the petitioner's predecessor-in-interest and on the other hand a P. T. D. Was issued in favour of the respondent. A civil suit was filed challenging the transfer of the shop to the respondent and seeking transfer thereof to him (Amir Ahmad). The Court tried the matter but dismissed the suit on 20-10- 1977 and petitioner's appeal was also dismissed by the District Judge on 9-10-1979 while the second appeal was dismissed by the High Court, vide the impugned judgment.
4. Learned counsel for the petitioner vehemently argued that perusal of the judgment of the learned High Court dated 14-5-1968 in W. P. No. 539/R of 1964 shows that the question whether or not house No. B/15 and shop R/32 were two separate properties or two separate units owned by two separate evacuee owners, never came up for consideration. The only question, Which the Lahore High Court entertained was whether the Settlement Authority could divide the property to put it in auction pool. The learned High Court was under the impression that the two properties constituted one unit which the Settlement Department was trying to divide, and as the decision of the learned High Court was based on erroneous assumption of factual position its judgment dated 14-5-1968 did not come in the way of the learned trial Judge in the suit or the lower appellate Court or the learned High Court in its judgment in the R. S. A.
5. We have examined these contentions and we are of the view that under Settlement Scheme No. VIII, applications were invited only in respect of available property and L. S. Form was filed by Amir Ahmad, petitioner's predecessor-in-interest on 30-9-1966 when the writ petition to respect of the shop in dispute was pending before the High Court. It was thus not "an available property" and could be applied for. In fact the petitioner or his predecessor- in-interest were not a party to the writ petition and the shop in question had to be disposed of in accordance with the provisions of Settlement Scheme No. 1 under which the respondent was an applicant. The High Court, in the earlier writ petition, took the view that the Settlement Authorities were competent to divide the property to accommodate a claimant but the could not do so to put a part of the property to an auction. Consequently, the order for the disposal of the shop through auction was struck down. As the decision of the High Court was declaratory in character and had the effect of removing an illegal order passed by the Settlement Commissioner, the result was that the D. S. C's order dated 18-5-1960 transferring the shows to the respondent stood restored and it was not open for the petitioner to assai that order which was otherwise upheld by the High Court. We also agree with the finding of the learned Single Judge that the shop and residential portion are part and parcel of the same building, which is a matter within the competence of the Settlement Authority. Under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act there was a clear bar to the maintainability of civil suit. Thus was finding no merit in this petition, which is accordingly dismissed.