' The dispute between the parties relates to House No, 3/11, situated in Mohallah Shahal, Sialkot, which was in occupation of the petitioner's father, namely, Nawab Din, a displaced person from J & K State. It was originally transferred to one Muhammad Sharif under the earmarking Scheme. He commenced ejectment proceedings against Nawab Din and succeeded in obtaining an ejectment order from the Court of the Rent Controller. Consequently, Nawab Din was evicted. It appears that later on the transfer order in favour of Muhammad Sharif, was cancelled. The record shows that respondents No, 4 and 5, who are also displaced persons from J & K State applied for the transfer of the House under Settlement Scheme No, VIII. The petitioner also filed KCH form under that Scheme. The Deputy Settlement Commissioner passed two orders dated 7-10-1967 and 13-10-1967 transferring the respective portions of the House in possession of Respondents No, 4 and 5 in their names. Subsequently, respondent No,4 surrendered his rights to respondent No,5. The latter died during the pendency of this litigation and has been substituted by his legal representatives.
2. The petitioner challenged the transfer of the House to the respondents through an appeal and the learned Additional Settlement Commissioner on 28-6-1969, accepted the same and remanded the case to the Deputy Settlement Commissioner for its re-examination and submission of a report.
The latter tendered his report but the Additional Settlement Commissioner differed therewith and on 14-3-1970 transferred the House to the petitioner. However, on the respondents' revision, the learned Settlement Commissioner, remanded the case to the Additional Settlement Commissioner.
3. As a result of post-remand hearing, the Additional Settlement Commissioner gave a decision against the petitioner and transferred the House to the respondent. His order in this behalf is dated 30-9-1970. But, in revision, preferred by the petitioner, the Settlement Commissioner transferred the House in his favour, vide his order dated 21-10-1971. He maintained that the petitioner's possession before the year 1961, was established and expressed the view that respondents' possession was doubtful.
4. Two writ petitions bearing No, 6/R-72 and 163-R-72, were filed against the orders aforesaid, which were accepted on 12-6-1975 and the case was again sent back to the Settlement authorities. The learned Settlement Commissioner, who heard it by means of his order dated 26-3-1976 impugned through this writ petition, held the respondents eligible for transfer. The operative part of his order is as under:- "After hearing the parties and perusal of the relevant record my views are not different from these expressed by the learned Additional Settlement Commissioner in his order dated 30-9-1970 that the petitioner was not eligible for transfer of the House because possession of his father which was abandoned by him in 1961 does not entitle him to transfer of the House. On the other hand possession of Ahmad Din one of the respondents who surrendered his share in favour of Rehmatullah is borne by the report of the learned Deputy Settlement Commissioner. Ghulam Nabi has not been able to prove his possession before 20-12-1958 but with the amendment of definition of possession his case is also covered. The revision petition of Bashir Ahmad viewed in the light of the above would appear to be such as meriting dismissal which is awarded to it."
5. The respondents are absent despite service. They are, therefore, proceeded against ex parte.
6. I have heard the learned counsel for the petitioner and examined the available record. He argued that the petitioner was in possession of the house alongwith his father, who was an allottee, and died after his eviction in 1961; thus all rights enjoined by the deceased to have the house transferred in his name, stood conferred on the petitioner. Reference was made by him to subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, to contend that the deceased being a displaced person from J & K State, the house in his possession could not be disposed of in favour of any one. In this behalf reliance was placed on Sher Ahmad v.
Doctor Ahmad Ali Khan and another PLD 1961 Lah.
240. According to the learned counsel notwithstanding the petitioner's ouster from the house and consequently his ceasing to be in physical possession thereof, for the purposes of Settlement laws, he would be deemed to be in its possession. In this behalf he also referred to the Additional Settlement Commissioner's order dated 14-3-1970. As regards the possession of the respondents, he contended that they trespassed into the house in connivance with Muhammad Sharif after the eviction of his father under the ejectment order which was wholly illegal.
7. I see little merit in the submission of the learned counsel. The question of possession is one of fact and in this behalf the Settlement Commisioner, on the strength of the record before him, accepted the possession of the respondents and treated the petitioner as out of possession. It is to be noticed that the ejectment petition was filed against the petitioner's father to whom the house was allotted and thus before his eviction he alone would be deemed to be in possession. It is reasonable to hold that the petitioner resided with the deceased allottee as member of his family and thus, cannot be clothed with the status or an independent occupant. It may also be observed that there is no material on the record before me to hold that Nawab Din had died.
8. In exercise of constitutional jurisdiction it is not possible to disturb the findings of the Settlement Commissioner as to the respondents' possession, on evaluation of some extrinsic evidence now added to the file. The learned counsel's reliance on the Additiona Settlement Commissioner's order dated 14-3-1970 is also ill-founded. The reason being that in this long drawn out litigation between the parties, the said order stood merged in the subsequent orders and the final verdict on the Settlement side is to be found in the impugned order which confirms the respondents' possession.
9. The argument resting on subsection (5) of section 30 ibid, has no force. This provision of law, was repealed by virtue of Ordinance XIII of 1965. In the precedent relied upon by the petitioner it was maintained that the Settlement authorities by deciding a building to be one house or a shop could not transfer whole building to a claimant in violation of subsection (5) of section 30 ibid. As the property has been disposed of under Settlement Scheme No, VIII, long after the repeal of subsection (5) ibid, this precedent has no bearing on the instant case.
10. While hearing the writ petition, this Court cannot act like an appellate Court and review the findings of fact recorded under the impugned order by the Settlement Commissioner. There is n C jurisdictional defect in his decision much less to speak of any illegality.
11. As all the contentions raised by the learned counsel have failed, this writ petition is dismissed but with no order as to costs.