1. NASIM HASAN SHAH, J.--This petition is directed against the judgment dated 17-11-1975 passed by a learned Single Judge of the Lahore High Court in Writ Petition No. 1210-R of 1975.
2. The facts briefly are that Property No. SE-6-R-169, Dharampura, Lahore, is a composite property. It consists of three shops in front and a residential portion on the back. There is no construction on the roof either of the shops or the residential portion. However, the occupants of the house are using the latrines which are located on the portion of the roof situated above the shop portion of the building. The staircase also opens on the portion of the roof which falls on the top of the shops.
3. The predecessor-in-interest of the petitioners was transferred the residen--tial portion by order of the Deputy Settlement Commissioner dated 4-8-1960 while the shops were transferred to the respondents. The P. T. D. Was issued to the respective parties thereafter. It is submitted before us that in July, 1969, the petitioners wanted to raise certain constructions on the portion of the roof falling on the top of the shops whereupon the Municipal authorities required the petitioners to obtain a No-Objection Certificate from the Settlement authorities. On this being solicited the Deputy Settle--ment Commissioner, who dealt with the matter, held that the respondents were entitled to the ownership of the portion of the roof falling on the top of the shops "which they had every right to utilize in the manner they liked and no one could encroach over it". He, therefore, held that the transferee of the house had no right to use the portion of the roof above the three shops.
4. He disposed of the application of the petitioners in the above terms by his order dated 31-7-1969.
5. The petitioners, therefore, filed an appeal before the Additional Settle--ment Commissioner which was treated as a revision and disposed of by the Settlement Commissioner vide his order dated 10- 6-1975. He agreed with the learned Deputy Settlement Commissioner that in so far as the question of ownership of the roofs was concerned the matter had been rightly decided by the Deputy Settlement Commissioner. However, as regards the use of the roofs was concerned he observed that the petitioners could use the roof above the shops as a passage to approach the roof falling on top of the house as was being done already. With these observations, the revision was disposed of vide order dated 10-6-1975.
6. The petitioner then filed a writ petition before the Lahore High Court (W. P. No. 1210-R/75) and the learned Single Judge held that the fact that there was no construction on the first-floor indicated that the transfer by the Deputy Settlement Commissioner of the portions to the parties in possession would mean that the transfer "extended from the ground to the sky and not horizontally". He, therefore, dismissed the writ petition in limine. This petition for leave to appeal is directed against the said order.
7. Mian Saeed-ur-Rehman Farrukh submitted before us that after the transfer documents had been issued by the learned Deputy Settlement Commissioner in 1960, which were followed by the issuance of the P. T. Ds. The Settlement Authorities had become functus officio and could not, there--fore, demarcate the property and indicate which portion of the roof would fall to the ownership of the petitioners and which fall to the ownership of the respondents. This was the function of the civil Courts and not that of the Settlement Authorities. He relied upon 1976 SCMR 493.
8. We are not inclined to give effect to this submission. The petitioners had themselves approached the Settlement authorities for a No-Objection Certificate and wanted the Settlement authorities to declare that the parts of the roof on the shops were included in the transfer made to them. The Deputy Settlement Commissioner as well as the learned Settlement Commis--sioner went to the spot and after inspection clarified the situation. The clarification having been invited by the petitioners themselves they can hardly be heard to say that the Settlement Authorities could not have gong into the matter.
9. In any case, this is not a fit case for grant of leave to appeal as we a satisfied that the orders passed and impugned before us are fair and just This petition therefore fails and is dismissed hereby: