1. ANWARUL HAQ, J.-This petition for special leave to appeal seeks to call in question an order made a learned Single Judge of the Lahore High Court on 28-11-1972, whereby a constitution petition filed by the two petitioners, in respect of the transfer of an evacuee shop situate in Iqbal Mandi, Sirai Alamgir, in the Kharian Tehsil of District Gujrat, wasdismissed in limine.
2. The facts relevant to the present dispute are that the shop in question, situated in a rural area, was allotted to petitioner Nawab Baig on 23-2-1948 as a local. In May 191,8, Nawab Baig's brother Mirza Yousaf Baig, who is petitioner No. 1, applied for the transfer of the shop under revised Settlement Scheme No. VII. This application was, however, rejected by the learned Assistant Settlement Commissioner by his order dated the 10th of September 1968, and the shop was instead transferred to respondent No. 4, Fateh A.I, who is a displaced person from the State of Jammu & Kashmir. The petitioner No. 1, thereupon, made an application to the Deputy Settlement Commissioner, which was treated as an appeal by this Officer ,and rejected on 8-4-1969. A revision petition was then filed by the two brothers, but it was also rejected by the Additional Settlement Commissioner by his.
3. Order dated the 26th of April 1971. All these authorities recorded a concurrent finding to the effect that although the shop was at one time allotted to Nawab Baig yet he had abandoned its possession in the year 1956, or, at any rate, before the prescribed date on the 1st of January of 1971, that Nawab Baig's brother Yousaf Baig was not in occupation of the shop, and that in fact respondent Fateh A.I was in occupation and, therefore, entitled to its transfer.
4. Aggrieved by the refusal of the Settlement authorities to transfer the shop to them, the petitioners moved the High Court in the exercise of its extraordinary jurisdiction, but their petition was rejected on 28-11-1972, as already stated. The learned Judge in the High Court has observed that he could not interfere with the finding of fact recorded by the Settlement authorities on the question of the occupation of the shop by the contending parties. He has also given an additional ground for refusing to interfere, -viz., that under para. 3 of the revised Settlement Scheme No. VII promul-- gated by the Government of West Pakistan on the 26th of March 1966, it was necessary for the petitioners to show that they were in occupation not only on the prescribed date, I.e., the 1st day of January 1961, but also on the date of the application which was made in May 1968. It is submitted :by the learned counsel-
(a) that the Settlement authorities as well as the High Court have erred in holding that the petitioners were not in occupation-of the disputed shop on the prescribed date, and that this error has been occasioned by the fact that the receipts produced by the petitioners regarding the payment of rent to the Rehabilitation Department were misread;
(b) that in any case the learned Judge in the High Court has not correctly interpreted para. 3 of the Revised Settlement Scheme No. VII, inasmuch as he has read into this paragraph an additional requirement regarding continuous possession until the date of the application for the transfer of the property; and
(c) that Nawab Baig being the allottee of the property, the respondent Fateh A.I must be deemed to be his licensee and holding the shop on his behalf, as Fateh A.I was only a servant or Karinda of the petition--ers and did not have any independent status in the matter.
5. After hearing the learned counsel at some length and perusing the various orders passed by the Settlement authorities at various levels, as well as the grounds of appeal and revision submitted by the petitioners, we have come to the conclusion that there is no merit in any of these submis-- sions. The High Court is clearly right in observing that the question of physical occupation was primarily a question of fact and it was not open to the High Court to interfere with the finding recorded in this behalf by the Settlement authorities. On this view of the matter it would appear that the petitioners were not in possession on the prescribed date.
6. Even if it be assumed that there has been some misreading of the documentary evidence produced by the petitioners, the best that can be said on their behalf is that they remained in possession until April 1962. The learned counsel has asserted that the petitioners held receipts of the payment of rent to the Department until April 1962 and the Courts below were wrong in thinking that the receipts did not extend beyond December 1960. How--ever, even if the contention be accepted as correct, the fact remains that the petitioners ceased to be in occupation of the shop beyond April 1962. In the revisional order recorded by the learned Settlement and Rehabilitation Commissioner on 26-4-1971, it is recorded that the petitioners had admitted before this Officer that they had handed over occupation of the shop to the respondents, and the only dispute was about the date when it was done. The petitioners were asserting that the occupation was handed over in 1963, whereas the respondent Fateh A.I was asserting that he came into possession in the year 1960. It would be seen, therefore, that in either case the petitioners were not in occupation in May 1968 when the application for transfer was made, nor even on the 26th of March 1966 when the revised Settlement Scheme No. VII, creating an entitlement in favour of the petitioners, was promulgated.
7. Clause (1) of paragraph 3 of this Scheme lays down that:- "Notwithstanding anything contained in any other Settlement Scheme, a claimant, a non-claimant displaced person or a local who has been in occupation of a rural property of any value situated within an extended area, or a house or a shop of the value of Rs. 10,0'0 or more in a rural area since before the 1st day of January 1961, shall if he applies in this behalf be entitled to its transfer on payment of the price hereinafter provided."
8. It seems to us that the paragraph does contain a requirement that the applicant should be in occupation of the rural property for the transfer of which he applies, and that this occupation should be since before the 1st day of January 1961. The paragraph does riot appear to us to create an entitlement in favour of persons who might have been in occupation of the property since before the 1st of January 196: but who had subsequently abandoned the same, before making the application for its transfer, or at IC any rate, before the Scheme itself was promulgated. The High Court was, therefore, right in thinking that the petitioners were not entitled to the transfer of the property as they did not fulfil one of the requirements embodied in the relevant paragraph of the Scheme.
9. As regards the contention that the respondent Fateh A.I was holding the property as a licensee of the petitioners, suffice it to say that at no stage was this position taken up by the petitioners during the proceedings before the Settlement authorities. In the appeal and revision it was asserted the property had in fact been let out by the petitioners to respondents Nos. 5 and 6 who had fraudulently set up respondent Feteh A.I, a displaced person, to claim the property. It is clear, therefore, that the new plea now raised on behalf of the petitioners cannot be entertained.
10. As a result, we are satisfied that no justification is made out for our interference in the matter. The petition is accordingly dismissed.