1. MUHAMMAD HALEEM, C.J.--This appeal, by leave, arises from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 17th of November, 1982, by which Writ Petition No. 512-R of 1978, was dismissed.
2. Leave to appeal was granted to consider whether the Chaubara admittedly on Shop No. 442 which stood transferred to the appellant could subsequently be disposed of by auction as available property.
3. There were three shops bearing Nos. 438, 442 and 443 with Chaubaras over them. The Chaubara over the shop bearing No.442 was assigned a separate number "440". However, the Shop No. 442 with Chaubara on the top of it without a number was transferred to the predecessor-in-interest of the appellant. Subsequently, it transpires that shop No. 442 was bifurcated as it consisted of two portions distinct from each other and the other shop was given the number 442-B and transferred to Abdul Ghafoor. The Chaubara on Shop No.442 also extended over the Shop No.442-B, and as Abdul Ghafoor declined to accept its transfer on the ground that there was no separate entrance, the whole of it stood transferred to the predecessor-in-interest of the appellants. As a result of some oversight this Chaubara was put to auction earlier and it was purchased by Muhammad Siddiq, who applied for the demarcation of his property and in those proceedings a fresh number '442' was assigned to this Chaubara. But as it was already transferred to the predecessor-in- interest of the appellant, the Deputy Settlement Commissioner, Rawalpindi by his order, dated 15th of January, 1978, held that it could not have been auctioned without being first cancelled from his (appellant) name and as he had no jurisdiction to review the order of his predecessor, the appellant was advised to have recourse to a Court of law.
4. The appellant thereupon challenged this order through Writ Petition No. 512-R of 1978, but the High Court held that the Chaubara consisted of two parts; one over the shop transferred to the appellant, and the other on the shop transferred to Abdul Ghafoor, and that the later Chaubara was available for auction as it had not been transferred to the appellant, This finding, according to the High Court, gained strength from the fact that Abdul Ghafoor had, in fact, declined to accept the transfer of this Chaubara which was in possession of one Jamal, and it was thereupon transferred to the appellant by the Deputy Settlement Commissioner on 6th of June, 1963. In the result, the High Court declined to grant relief to the appellant holding that it was a separate unit.
5. It transpires from the record that the petitioner was transferred Shop No.442 and a Chaubara on it.
6. This Chaubara had only one entrance and had only number namely 440 although in the Provisional Transfer Order (P.T.O.) it was described as being without a number. On 10th of May, 1963, when it was put to auction, it was described as Chaubara bearing number 440 and was not a separate unit as would appear from the refusal of Abdul Ghafoor to accept its transfer for the reason that it had no separate entrance. It was also not partitioned as such, therefore, it could not be regarded as a separate unit. True that it was in the possession of Jamal, but the ejectment proceedings against him failed and it was then that Muhammad Siddiq applied for the demarcation of the property. This Chaubara could not have been an available property so as to be disposed of by auction as what appears from the finding of the Deputy Settlement Commissioner is that the Chaubara as a whole was transferred to the appellant, and that till 6 of June, 1963, it had not been treated as a separate unit. Accordingly, the finding of the High Court is not sustainable.
7. The appeal succeeds and is allowed, but with no order as to costs as the respondents failed to contest the appeal.