1. ' JAVID IQBAL, J.--This petition for leave to appeal is directed against judgment of the Lahore High Court, Lahore dated 13 December, 1983 whereby I.CA. Of Sher Muhammad respondent No,1 was accepted.
2. ' Briefly the facts are that the Border Allotment Committee confirmed allotment of the Kotha in dispute in favour of the present petitioner Ali Gohar by order dated 15th April 1961. The case of respondents 1 and 2 was that they had acquired possession of the disputed Kotha on the strength of a receipt indicating that they had purchased the same for Rs,500 from one Ghulam Rasul. Their claim was that they had been in possession of the same eversince 1951. The record indicates that the present petitioner filed an application addressed to the Checking Committee, Qasur dated 24 April, 1960 for allotment. On this application a report was made by the Halqa Patwari that the said Kotha was in unauthorised occupation of the aforesaid respondents and that it was liable to be allotted to the military allottee i.e, the petitioner. This recommendation was approved by the Army Member of the Border Allotment Committee as indicated by order dated 3 May, 1982 at pages 65 and 66 of the paper book. The petitioner could not get possession of the said Kotha which was allotted to him, therefore, he again agitated the matter by approaching the Border Allotment Committee. He claimed that the respondents were his tenants but they were claiming title to the said Kotha in their own right although it stood allotted in his favour since 1960. Thus, he repeated his request for allotment. The Border Allotment Committee after hearing the parties and perusal of the record arrived at the conclusion that Major Iqbal former Chairman Allotment Committee on 15 April, 1961 had allowed the proposal of allotment of this Kotha to the petitioner and it was to be construed as a regular order. The conclusion was that the respondents were not lawful occupants of the Kotha in question and they were directed to vacate the same and to deliver the possession to the petitioner. The respondents had also moved the civil Courts for a declaration to the effect that they were the owners of the said Kotha but the civil suit was eventually dismissed. So far as the writ petition is concerned it was likewise dismissed on the ground that they had already availed of alternative remedy by filing a civil suit and that controversial questions of fact could not be determined by the High Court in Constitutional jurisdiction. Thereafter, the respondents filed I.C.A.
3. Which was accepted by learned Division Bench of the Lahore High Court, Lahore as stated above.
4. Hence the present petition.
5. ' Inter alia it was argued by learned counsel for the petitioner that it was evident from the record that the petitioner had been properly allotted the disputed Kotha in 1961 on the recommendation of his application and that the respondents were in unauthorised occupation of the same. In such circumstances he could not be deprived from his legitimate entitlement to the said Kotha which he was entitled to occupy under the law applicable to the present case. There is force in the arguments of the learned counsel. Leave is therefore granted in this case. Security for costs in the sum of Rs,5,000. The appeal shall be prepared on the present record with permission to the parties to file additional documents on which reliance can be placed. Stay order already granted by this Court shall continue until the final disposal of the main appeal.
6. ' Leave to .