SAAD SAOOD JAN, J.--These are three petitions for special leave to appeal. They arise in the following circumstances:
2. There is a largish evacuee building consisting of 37 rooms situate in Gujranwala City. On the eve of Independence it was being used as hostel for the King George Hindu High School. Soon after Independence it was occupied by about 40 displaced families. Some of them raised their own structures on the vacant land available in the premises. When the settlement operations started, only 12 families applied for the transfer of different portions of the building. However, the Settlement authorities rejected their forms on the ground that the building was a trust property. A local organization known as Anjuman-e-Islamia applied for the transfer of the building for setting up a school therein. As its request was being processed it was discovered that the building was not a trust property but was owned by one Lala Sundar Das. Consequently, the request of the Anjuman- e-Islamia was turned down. When the occupants of the building learnt that it had been declared as non-trust property most of them applied for the transfer of the portions in their respective possession. By an order, dated 28-9-1965 the Deputy Settlement Commissioner divided the building into 12 units and transferred these only to such of the applicants as had earlier submitted their forms. As regards the other occupants, he turned down their request on the ground that they had not submitted their forms within time. The unsuccessful applicants filed an appeal before the Additional Settlement Commissioner but without any success. They then moved the High Court in writ jurisdiction but their writ petition (W.P. No. 1148-R of 1966) was dismissed. They sought leave to appeal before this Court, but it was not granted. (See C.P.S.L.A. No. 381 of 1972).
3. When Settlement Scheme No. VIII came into force the unsuccessful applicants once again applied for the transfer of the portions in their respective possession. Their applications were rejected on 24-2-1967 by the Deputy Settlement Commissioner on the ground that the property had been disposed of and was as such not available for transfer under the said Scheme.
4. The transferees of different portions of the building initiated ejectment proceedings of the portions transferred to them under the Punjab Urban Rent Restriction Ordinance against the occupants who were unsuccessful. Some of the occupants filed another writ petition in the High Court (W.P. No. 100-R of 1975) on the assertion that the portions under their occupation could not be transferred to those who were not in possession thereof but that these should have been put on auction. Their writ petition was dismissed and their petition for special leave to appeal to the Supreme Court (C.P.S.L.A. No. 302 of 1976) also failed.
5. In the meanwhile some of the unsuccessful applicants pointed out to the Settlement authorities that some portions of the premises had not yet been disposed of. By an order, dated 31-3-1973 the Settlement Commissioner (Urban) directed the Deputy Settlement Commissioner that he should dispose of the excess area. This order was challenged by some of the transferees in writ jurisdiction in the High Court (W.P. 614-R of 1973). It was dismissed by the High Court with the following observation:- "It is contended by the learned counsel for the petitioners that there is no excess area and P . T . D .
Has been issued in some cases. The memo. Under reference is unharmful, for, it is to be found out as to whether there is any excess area. If there is none the petitioners will not be affected. If, however--- there is any then it has to be disposed of according to para. 19 of Settlement Scheme No.1. With this observation this petition is disposed of leaving the parties to bear their own costs."
Consequent upon the direction given by the Settlement Commissioner a Deputy Settlement Commissioner visited the spot. He found that Mst. Hashmat Bibi (petitioner in C.P.S.L.A. No. 838 of 1986) was in possession of a room which had not yet been transferred to anyone. He also found that Abdul Rashid (respondent No. 6 in C.P.S.L.A. No. 790 of 1986 and respondent No. 7 in C.P.S.L.A. No. 638 of 1986) had raised a construction over 1 Marla of land which too had not yet been transferred to anyone. Accordingly, he directed that Mst. Hashmat Bibi and Abdul Rashid be transferred the said room and the said piece of land, respectively. Muhammad Ibrahim alias Chotta (petitioner in C.P.S.L.A. No. 790 of 1986) who claimed the room for himself and the legal representative of Mst.
Malian who treated the piece of land as part of her allotment filed a writ petition (W.P. No. 274-R) in the High Court to impugn the order of the Deputy Settlement Commissioner. The High Court set aside the order of the Deputy Settlement Commissioner on the ground that he had not complied with the provisions of paragraph 19 of the Settlement Scheme No. 1 while finding out if there was any excess land before making the impugned order and directed him to decide the matter afresh.
After the remand, another Deputy Settlement Commissioner re-examined the matter and affirmed the findings of his predecessor and retransferred the room to Mst. Hashmat Bibi and the land to Abdul Rashid.
6. The fresh order of the Deputy Settlement Commissioner was once again challenged in writ jurisdiction before the High Court. By the impugned order a learned Single Judge set aside the transfer of the room made in favour of Mst. Hashmat Bibi but upheld the transfer of the piece of land in favour of Abdul Rashid.
7. It may also be mentioned that in proceedings under the Punjab Urban Rent Restriction Ordinance an order of ejectment had been obtained by Muhammad Ibrahim against Mst. Hashmat Bibi from the room in question. She filed a writ petition to challenge the order of eviction. It was dismissed by the High Court,
8. The petitions registered as C.P.S.L.As. Nos. 838 and 839 having been filed by Mst. Hashmat Bibi to challenge the orders of the High Court setting aside the transfer of the room in her favour and refusing to set aside the order of her ejectment from the said room. The petition registered as C P.S.L.A. No. 790 has been filed by Muhammad Ibrahim and the legal representatives of Mst. Mallan to challenge the order of the High Court in so far as it has declined to set aside the transfer of the piece of land in favour of Abdul Rashid.
9. It may be mentioned that the unit which was transferred to Muhammad Ibrahim comprised Rooms Nos. 5, 6, 7 and 8. The room in possession of Mst. Hashmat Bibi is contiguous to Room No. 5.
She had enclosed the space in front of the room in her possession to form courtyard and constructed a latrine and a kitchen therein. This space has already been transferred to her and there is no dispute about it. Thus, the only question for consideration is whether the room in her possession was a part of Room No 5, admittedly transferred to Muhammad Ibrahim. It may be mentioned that Room No. 5 is a set of three rooms. If the room in possession of Mst. Hashmat Bibi is treated as part of Room No. 5 it would be the fourth one in the set. The Deputy Settlement Commissioner who first held that the room with Mst. Hashmat Bibi did not form part of Room No. 5 had based his finding on his personal observations at the spot. The second Deputy Settlement Commissioner who upheld that finding had the following observations to make:- "I have examined the line sketch (Exh.P.A.) and found that Room No. 5 contains three rooms in actual. The room in dispute in possession of Mst. Hashmat Bibi had not been allocated any number in the said sketch and as such has not been transferred to the appellant (Muhammad Ibrahim).
She (respondent) has also constructed a Tharra, latrine and bath in front of this room from her own pocket. Exh.P.B. Shows the actual and correct position on spot. The room in question and a small courtyard ahead, on which the respondent has raised above-mentioned construction form an independent unit having no concern and connection with other rooms of any other transferee. The same for having no reference in the transfer order, dated 28-9-1965 is available. There is also a street 4 feet wide in front of the rooms of Master Muhammad Sher Khan and the vacant evacuee land measuring width of her room up to the thoroughfare on West. The same also form part of the unit occupied by Mst. Hashmat Bibi."
The findii g that the room with Mst. Hashmat Bibi was not a sub-set of Room No. 5 is a finding of fact and the High Court ought not to have lightly interfered with it particularly when it found that the Deputy Settlement Commissioner who toad divided the whole building into different units had made no specific order demarcating the portions of the properties transferred to various occupants. The order of the High Court is, therefore, unsustainable. AS it has been found as a matter of fact that the room in dispute did not form part of Room No. 5 it was clearly not included in the unit transferred to Muhammad Ibrahim. It was thus an available property; consequently, its transfer in favour of Mst. Hashmat Bibi did not suffer from any infirmity. In the circumstances we would convert C.P.S.L.As. Nos. 838 and 839 into appeals, set aside the order of the High Court as well as the order of ejectment passed against Mst, Hashmat Bibi There will be no order as to costs.
10. Similarly the piece of land transferred to Abdul Rashid has been found as a matter of fact as not having been earlier allocated to anyone. The High Court, therefore, rightly declined to interfere in the matter. Leave to appeal in C.P.S.L.A. No. 790 is refused.