1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment dated 13-4-1981 of the Lahore High Court; whereby an Intra-Court Appeal arising out of an urban settlement case filed by the respondent, was allowed.
2. The respondent was admittedly in possession of the shop in dispute. He filed an N.C.S. Form for its transfer but made a statement on 10-12-1959 that he being a poor man would not get it.
3. Subsequently in February, 1960 the respondent's brother also made a statement to the same effect.
4. Here it may be noted that according to the learned counsel for the respondents caveators the refusal to get the shop at the relevant the was on account of the respondents' misunderstanding about the nature of the property, which in reality was composite one having a Chowbara as its component. And that the respondent thought that he might not be entitled to get the shop. The Chowbara it is admitted now stands transferred to a different party. Be that-as it may the D.S.C.
5. Ordered on 5-2-1960 that the shop be auctioned. However, within 19 days of this order the respondent again applied for transfer of the shop. This the explaining that he had entered into an association with a claimant. He pursued this application by making a prayer on 5-3-1960 that P.T.O.
6. Be -issued to him. He also filed an application on 26-4-1960 for deletion of the property from auction, which had not yet taken place. This application was allowed by an Additional Settlement Commissioner. But according to the learned counsel for the petitioners, the order was not conveyed to the authorities in the field and the shop was subsequently auctioned in favour of the petitioner. It is in the afore noted circumstances that in an Intra-Court Appeal learned Judges of the Division Bench in the High Court resolved the dispute between the petitioners (the auction- purchaser) and the respondent (a non-claimant in possession) of the shop in dispute, in favour of the latter.
7. Learned counsel for the petitioners contends that the refusal by the respondent in 1959, was irrevocable even if it was withdrawn; and further, that his fresh application for transfer before the auction would not make any difference. He has also contended that the deletion of the auction was made by an Additional Settlement Commissioner who was not competent to do so. And lastly he contended that the order of the Deputy Settlement Commissioner putting the property for auction dated 5-2-1960 should have been independently challenged in appeal.
8. All these arguments are to technical to be given any importance. In an elaborate judgment the learned Judges of the High Court have held that notwithstanding some circumstances going against the respondent, he being a non-claimant in possession of the shop in dispute at all relevant times, was entitled to its transfer. The auction of the property in favour of the petitioner notwithstanding the fact that the respondent had again applied for transfer on 24-2-1960 was obviously without lawful authority.
9. We do not agree with the learned counsel that the withdrawal by the respondent was irrevocable.
10. In reality it was not a with drawl, in favour of the petitioner; nor, in law it could be treated as irrevocable because it was not acted upon before the respondent made again an application for transfer. This second application did not suffer from any serious effect. Therefore, the shop should have been transferred on this application to the respondent. There was no real impediment. We may add that it was not necessary for the respondent to have chal--lenged the order of the Deputy Settlement Commissioner dated 5-2-1960 where he ordered for auction of the shop because he had made an application for deletion of the property from the auction-list. The circum--stance that the application was duly allowed by an Additional Settlement Commissioner but the order was not conveyed to the Deputy Settlement Commissioner would not make any difference because it was not due to any fault of the petitioner. Looked at from whatever angle it is not a fit case for the grant of leave to appeal. This petition accordingly is dismissed.