1. DORAB PATEL J.--The dispute in this petition for leave relates to what is described as a garage in a house in an evacuee property in Rawalpindi. Even, according to the petitioner, the property measures only about 125 square yards and consists of four rooms and to garages and the contest is between him and the first respondent, to whom we will refer as the respondent. Badar Din the predecessor-in-interest of the petitioner had applied for the transfer of the entire property when Settlement operation began. But the respondent, who was in possession of a garage had applied for that garage whilst one Shafi applied for the other garage. As Shafi has been eliminated from the contest, it is sufficient to state that the entire property was initially transferred to Badar Din.
2. However, on the remand of the case to the Deputy Settlement Commissioner, by his order dated 11- 12-1961, the Deputy Settlement Commissioner transferred the garage in dispute to the respondent and the rest of the property to Badar Din. Appeals were filed and by his order dated 10-1-1962, the Addl. Settlement Commissioner directed the-- auction of the garage transferred to Shafi.
3. Badruddin's attempt to secure the to garages failed, therefore, he filed a writ petition in the Lahore High Court, and this writ petition was allowed by a very brief order which only discussed the question whether Badruddin was entitled to the garage occupied by Shafi which had been ordered to be auctioned. Although this judgment is not available, we were informed that this question was decided in the petitioner's favour and then the learned Judge, who allowed the writ went on to quash the orders of the Settlement authorities dated 11-12-1961, 10-1-1962, 24-7-1962 and 24-8-1962.
4. As the writ petition had been allowed as prayed, without any discussion of his claim to the garage in his occupation, the respondent filed a review application which was dismissed by a brief order which stated that the review was without merit. The respondent, therefore, challenged this order in a Letters Patent Appeal which was dismissed on 30-4-1979, but with a direction that the Settlement authorities should examine the question of the divisibility of the property.
5. Presumably in view of this observation, the respondent applied again for the transfer of the garage in his occupation but his application was dismissed by the Deputy Settlement Commissioner on 4- 10-1979, therefore, he filed a writ petition in the Lahore High Court which was allowed and further instead of remanding the case, a learned Judge directed that the garage in the respondent's occupation should be transferred to him as a shop. Hence this petition for leave.
6. Now during the pendency of the respondent's Letters Patent Appeal, Badruddin, therefore, his legal heirs were brought on record and in the events that happened, the petitioner Taj Muhammad succeeded to the rights of Badruddin. Therefore, Mr. Farooq submitted on behalf of the petitioner that the judgment allowing Badnuddin's writ petition had become final and as the four orders of the settlement authorities mentioned above had been quashed by this judgment, the initial order passed by the Deputy Settlement Commissioner transferring the entire property to Badruddin stood revived, therefore, the learned Judge had erred in law in setting aside that earlier judgment of the Lahore High Court and in allowing the respondent's claim. The argument would have had force, but for the direction given ba, the Letters Patent Bench in its judgment dated 30-4-1979 by which the Settlement authorities were directed to examine the question of the divisibility of the house. Learned counsel therefore submitted that the Letters Patent Bench was not justified in directing the Settlement authorities to re-examine the question of the divisibility of the property, because the learned Judges of the Letters Patent Bench had also upheld the order of the learned Judge allowing Badruddin's' writ petition.
7. We are unable to accept this submission. It is true that the order of the Letters Patent Bench is somewhat inconsistent, but the petitioner allowed it to become final, therefore, the direction to the Settlement authorities to re-examine the question of the divisibility Of the property cannot now be challenged by him. And, in view of this direction, the Settlement Commissioner was free to hold that the portion of the property in the respondent's occupation could be transferred to him. It is true that he did not, but it was open to the learned Judge to set aside this finding if it was without lawful authority. And, this means that the real question is whether the High Court was justified in interfering with the finding of the Settlement Commissioner rejecting the petitioner's claim.
8. The circumstances appear to be fatal to the petitioner's claim. The first is that the Settlement Commissioner misread the direction given by the Letters Patent Bench. The second is that the property admittedly measures only about 125 square yards, therefore, it is difficult to understand the petitioner's claim that there were to garages on it, even though the claim receives some support from the Excise Department's records. It was in this background that the learned Judge took the view that the order transferring the entire property to Badruddin was illegal, and that the respondent's claim was fit to be allowed. Although a different view could have been taken, it cannot be said that the impugned judgment is unreasonable or perverse, therefore, it is not a fit case for the grant of special leave and on this narrow ground, the petition is dismissed.