1. MUHAMMAD HALEEM, C.J.-- This appeal, by leave, arises from the judgment of the High Court of Sind dated 20th of June, 1979, by which Constitutional Petition No.1015 of 1973 was disposed of in terms that the respective transfers of the parties were upheld but the claim of the respondent No.4 to be in possession of one-half of a big hall was denied. It was, however, left open to the Settlement Authorities to reconsider the claim of the respondent No.4 on the basis of his "possession" and the new construction raised by him.
2. There is a big mansion numbered as C-353, C-354 and C-355 situate at Khata Chowk, Hyderabad, which is occupied by fifteen families. On the basis of his possession the appellant applied on CH form for the transfer of one room on the first floor, a kitchen and a bath room which was in joint use, and a Provisional Transfer Order was, accordingly, issued in his favour on 17th of November, 1959. In the Appendix the price of this portion was shown as Rs.84,000 which represented the value of the entire building as according to its rental value of Rs.4,200 per month. Similarly, the respondent No.4 applied for the transfer of the portion in his possession consisting of three rooms, a Verandah and a courtyard, which portion was transferred to him and a Permanent Transfer Deed was issued in his favour on 27th of December, 1963.
3. The appellant applied for the rectification of the transfer price and accordingly for the issuance of a revised Appendix on the ground that he only occupied a small portion of the premises as per apportionment-sheet prepared in the year 1965. Notice of this application was issued to respondent No.4 on 16th of March, 1970, and on this date his application was rejected on the ground that the entire accommodation was transferred to respondent No.4 on 10th of September, 1969.
4. Against this order, the appellant, appealed to the Additional Settlement Commissioner who remanded the case to the Deputy Settlement Commissioner to give a clear finding as to the entitlement of the appellant. During the pendency of the appeal before the Additional Settlement Commissioner, respondent No.4 filed an application in October 1969 wherein he claimed for the inclusion of the big hall as being in his possession in the Permanent Transfer Deed and in respect of which it was stated that the appellant had withdrawn his claim by application, dated 26th of July, 1971, a photo stat copy of which is on the record of the Constitution Petition, on having come to know that this was transferred to him although this application was denied to have been filed by the appellant. The Deputy Settlement Commissioner not only determined the legality of the transfer of the portion in favour of the appellant but also considered his entitlement as to the transfer of this big hall to him.
5. In appeal before the Additional Settlement Commissioner, the respondent succeeded as by his order, dated 27th of November, 1972, the Additional Settlement Commissioner held that he was entitled to the transfer of one-half portion of the hall in his possession and that the other half should be transferred to the appellant.
6. Both the parties felt aggrieved and filed their respective revisions before the Settlement Commissioner who by his order, dated 17th July, 1973, accepted the claim of the appellant for the transfer of the big hall in his possession and rejected the claim of the respondent No.4 qua one- half of it. The appellant thereupon challenged the legality of the order of the Settlement Commissioner through Writ Petition No. 1551 of 1973 which was disposed of in terms that neither the appellant was entitled to the transfer of the big hall nor the respondent was entitled to the inclusion of half portion thereof in his Permanent Transfer Deed.
7. Leave to appeal was granted to consider as to whether the High Court could interfere with the conclusion of fact as to the appellant's entitlement of the big hall in the exercise of its constitutional jurisdiction A and further as to whether the High Court had erred in not dismissing the petition on the conclusion reached that respondent No.4 was not entitled to the relief claimed.
8. The High Court while examining the entitlement of the appellant that he only sought for the transfer of one room and a kitchen on the ground-floor with a common bath room in his C H . Form, and that he could not claim the transfer of any portion beyond this, held:- "I have already shown that respondent No.4 had clearly specified in C.H. Form dated 15-7-1959 that he was asking for transfer of one room and kitchen on the first story ground floor with common bath room. Even on 10-10-1969 when respondent had asked for revised appendix he had already stated that a small portion had been occupied by him. Then again in the remand order made by the Additional Settlement Commissioner on 22-2-1972, the respondent No.4 had laid claim to a portion out of the apportionment made in favour of Munshi Khan thus, it is clear that respondent No.4 had always asked for the portion in his possession, but the Deputy Settlement Commissioner as well as the Settlement Commissioner have transferred in favour of respondent No.4 even that portion of the ground floor which was not in his possession and according to the Deputy Settlement Commissioner it was in possession of Nanoo while according to petitioner it was in his possession.
9. The Settlement Commissioner has accepted the finding of the Deputy Settlement Commissioner. It may also be noted that the Deputy Settlement Commissioner and the Settlement Commissioner have both completely ignored that the petitioner had constructed a double storey block of to rooms in 1970 and the same could not have been done without the petitioner having in his possession a part of the ground floor. In this view of the matter the orders of the Deputy Settlement.
10. Commissioner transferring the whole accommodation on the ground floor to respondent No.4 is completely unjustified and is hereby declared to be without lawful authority except to the extent that the portion claimed by the respondent No. 4 and specified in his C.H. Form could stand transferred to him, but nothing beyond that."
11. We are unable to find any error in what the High Court has observed and none was canvassed before us by the learned counsel for the appellant.
12. In regard to the claim of respondent No. 4 to the transfer of one-half portion of the big hall, the High Court applied the same test and after, examining the documents on record held: "Therefore, all these documents are not of much help to the petitioner as the portion in possession is just vague, and therefore, in these circumstances it could not be possible for me to hold that the Settlement Commissioner had come to any perverse or arbitrary finding in this regard."
13. Accordingly, the High Court has not accepted the claim of the appellant to be in possession of the big hall as held by the Deputy Settlement Commissioner and the Settlement Commissioner while examining the claim of respondent No. 4 as to his being in possession of one-half of it. The counsel for the appellant while relying on the orders of the Deputy Settlement Commissioner and the Settlement Commissioner has not pointed out to us any material from which his undisputed possession of the big hall could be apparent as on the crucial date, that is, the 21st of December, 1958, nor do the orders upon which he relies show his possession to relate back to that date. In this view of the matter, it cannot be argued that the Deputy Settlement Commissioner and the Settlement Con. Missioner were correct in holding his entitlement to include . The big hall. The High Court while denying the transfer of one-half portion of the hall to respondent No. 4 has left the question open as neither the appellant nor the respondent No. 4 was found to be entitled to it in which case the authority under the repealed Act was under the law obliged to dispose it of. As such no exception can be taken to the observations of the High Court. Accordingly, we are of the view that C the appellant has no locus attend to question the further disposal of the big hall. And lastly as to the contention raised that it was respondent No. 4 who had invoked the writ jurisdiction of the High Court on being unsuccessful, the petition should have been dismissed without such an observation, we see no merit in it as this was the obvious consequence as the big hall required disposal under the law.
14. The appeal, therefore, is without any merit and is dismissed with costs.