' ABDUL SHAkURUL SALAM, J.-This order will dispose of Letters Patent Appeal No, 218 of 1969 and Criminal Original No, 62/W/79 as these are connected matters.
2. The appellant is a claimant allottee in possession of Shop No, S. III-10-S-16, Abkari Road, Lahore. It is in a composite property comprising of residential premises and the shop. The residential portions were transferred but the shop was ordered to be reserved for auction on the ground that the appellant had not filed any form vide the order of the Deputy Settlement Commissioner dated 16th October, 1960. The occupants of the residential portions filed appeal in which the appellant was cited as a respondent. The learned Additional Settlement Commissioner dismissed the appeal and maintained the order of auction of the shop. This is vide order dated 18th April, 1962. The shop was auctioned in favour of respondent No, 1 on 3rd November, 1962. Auction has not yet, however, been confirmed. The appellant filed a revision petition saying that he had filed C. S. Form for the transfer of shop which was registered at Serial No, 347 it was taken away by the Settlement Inspector, the appellant was a refugee with a large family to feed and was suffering from. T. B. For the last two years. The learned Settlement Commissioner allowed the revision petition with the observation that that should be taken up as an appeal by the learned Additional Settlement Commissioner to whom the case was remanded. This is vide order of the Settlement Commissioner dated 21st January, 1964. On remand, the Additional Settlement Commissioner declined to interfere with the order on the ground that there was already an order.Of the Additional Settlement Commissioner dated 18th April, 1962. This is vide order of the Additional Settlement Commissioner dated 16th March, 1966. The appellant filed a revision petition reiterating the ground that he had filed C. S. Form which was registered at Serial No, 347 and that he was also in possession of the certificate issued by the department to the effect that he had filed the C. S. Form. The Settlement Commissioner, however, 'dismissed the revision petition on the ground that the appellant "has not produced any piece 'of evidence to prove his contention". This is vide order dated 9th October, 19681 The appellant filed a Writ Petition No, 353/R/69 which has been dismissed by a learned Single Judge on the ground that the matter was concluded by finding of fact. This is vide order dated 22nd April, 1969. Hence, the aforetitled appeal.
2. At the preliminary stage on 22nd December, 1969 the learned Division Bench of this Court passed the following orders :- "Contends that the learned Settlement Commissioner completely ignored the certificate produced by the appellant to the effect that he had submitted his form C. S. Which was registered at No, 347 in the C. S. C.-11 Register. This certificate is signed by the Deputy Settlement Commissioner who has now sworn an affidavit that he had issued the same after perusing the original register. We consider that these circumstances require further examination. Admit. Notice."
Learned counsel for the appellant has produced the original certificate issued by Mr. I. U. Khan, ex- Deputy Settlement Commissioner. Farid Kot House, Lahore dated 10th November, 1969 alongwith a copy thereof. He has also produced a copy of the entry of C. S. Form from the C. S. C.-II Register which shows that at serial No, 347 the petitioner has filed the form. These documents are placed on the record.
3. The contention of the learned counsel for the appellant is that the appellant being a claimant allottee in possession was entitled to the transfer of the shop and the form which he had filed and was entered in the relevant register of the department had not been taken into account. He has also submitted that the auction in favour of respondent No, 1 has not been confirmed and, therefore, there is no justification to throw out the appellant claimant allottee from the shop in his possession.
4. Learned counsel appearing for respondent No, 1 has vehemently contended that the appellant had filed no form and the documents produced are afterthought and are not genuine.
5. The appellant has been saying right from the beginning in his revision petition that he had filed his C. S. Form No, 347 and in his grounds of revision before the learned Settlement Commissioner dated 30th May. 1966, he stated that he was in possession of a certificate from the department to that effect. It was for the authorities to examine it. The certified copy of the entry in the relevant register clearly shows that the appellant had filed a form. Non-examination of the record vitiates the finding. Contentions of the learned counsel for the respondent are contrary to record. The claimant allottee in possession cannot be thrown out of the shop for the benefit of respondent No, 1.
In whose favour the auction has not even been confirmed. Therefore, the appeal is allowed and the authorities concerned are directed to transfer the shop in possession of the appellant to the latter..
In the circumstances of the case th parties shall bear their own costs.
6. In view of the above and circumstances of the case, there is no justification to initiate criminal proceedings against the appellant. Therefore, the criminal original is dismissed. and criminal original dismissed.