RUSTAM S. SIDHWA, J; --This is a petition filed by Hakeem Syed Ashiq Hussain petitioner, seeking leave to appeal against the judgment of a learned Single Judge of the Lahore High Court dated 20-10-1987 dismissing his second appeal.
2. Mirza Nasrullah Baig respondent filed a suit for possession of Shop No.21/545 against Hakeem Syed Ashiq Hussain petitioner, on the ground that he was a transferee of the same from the Settlement Authorities -vide PTD issued in his favour, that at the time of transfer M/s. Yousaf and others were in possession of said shop as tenants, that about two years earlier the petitioner had taken possession of the same from his tenants with their collusion and that when the petitioner was asked to deliver the possession of the same, he had refused. The suit was resisted by the petitioner on the ground that he was the owner of the shop in dispute and that the respondent had no interest in the same. The learned Civil Judge ultimately decreed the suit. The petitioner's first and second appeals were likewise dismissed on 10-9-1970 and 20-10-1987 respectively. The petitioner now seeks leave against the last order.
3. On behalf of the petitioner it is submitted that neither the lower Courts nor the learned Judge of the High Court noted document Ex.D-7 and that a part of the property bearing No.21/546-547 transferred to him had actually passed to the respondent under the garb of Shop No.21/545.
4. The petitioner in his written statement did not take up the plea that any part of the shop bearing No.21/545 also included a part of the Property No.21/546-547 transferred to him under his N.C.H.
Form. In these circumstances, no fresh disputed question of fact can be taken up. The petitioner was transferred house bearing No.21/546-547 which happens to be located over the disputed Shop No.21/545. He could not have been transferred any portion of any property on the ground floor, where shops were located. The staircase on the ground floor leading to the petitioner's residence on the top, is already with the petitioner in his possession. The petitioner cannot be allowed to build up a new case before us, which he did not take up in the suit. In these circumstances, there is no merit in this petition, which is dismissed.