ABDUL QADEER CHAUDHRY, J.---The dispute relates in respect of building site measuring 19 marlas situated at Murree Road, Rawalpindi. The building site was originally claimed to be in the ownership of Muhammad Ilyas Khan who alienated the same in favour of Allah Ditta son of Muhammad Din on 23-1-1965 through registered sale-deed. Later on, the said Allah Ditta through another registered sale-deed dated 2-11-1965 transferred the ownership in favour of one Fazal Ellahi. Fazal Ellahi on 4- 11-1965 through registered sale-deed alienated the said piece of land by describing the metes and bounds in favour of Mushtaq Ahmad son of Ghulam Mohiuddin, the predecessor-in-interest of the petitioners. Mushtaq Ahmad after receiving the possession of the land in dispute raised a construction over it and in the year 1971 he came to know that the building site was an evacuee property. Therefore, he submitted an application on B.S. Form on 9-2-1971 under the Settlement Scheme VIII for the transfer of the disputed property to him. Mushtaq Ahmad described the disputed property as bearing Khasra No.7403-7404/3918-7405-Min. The said Mushtaq Ahmad died in 8-11-1975 and was survived by the petitioners.
3. The petitioners filed another application for the correction of Khasra number given in the form stating therein that the correct numbers in possession of the petitioners were 7399/3978, 7422/3919, 7401/3918, 7402/3918, 7400/3918, 74 2 1 /3918.
4. The Deputy Settlement Commissioner by his order dated 12-10-1971 rejected the form of Mushtaq Ahmad in the light of the report of Patwari dated 8-10-1971 who reported that Mushtaq Ahmed had not raised any construction. The property was treated as undisposed property and through public auction held on 31-3-1979, a plot measuring 4 marlas and 2 sarsais in Khasra No.7399--7422/3918 was transferred in favour of Muhammad Latif. Permanent Transfer Order was issued in his favour on 21-8-1979. The plot bearing Khasra No.7403--4/3918 was transferred to one Maulvi Muhammad Farooq, through open auction. Permanent Transfer Order was also issued in his favour. In this way, land measuring 4 marlas and 2 sarsais and 7 marlas and 3 sarsais was transferred in favour of the aforementioned transferees leaving 10 marlas and 5 sarsis as undisposed evacuee property till Ist July 1974. The Deputy Settlement Commissioner vide his order dated 14-3-1981 rejected the application for transfer of land transferred to the aforesaid transferees but accepted the application to the extent of the remaining land measuring 10 marlas and 5 sarsais in Khasra No.7400-7421/3918-19, 7401/3918, 7405-6/3918.
5. On 16-5-1982 the revision petition was dismissed by the Administrator on the ground that the application for amendment of Khasra numbers in B.S. Form was submitted on 12-1-1982 whereas the plot in dispute had already been auctioned on 31-3-)i979 and that the petitioners had no locus standi to challenge the auction and further that the revision petition was barred by time.
6. The petitioners filed a Writ Petition in the High Court with regard to the rejection of the forth and the auction proceedings dated 31-3-79 whereby an area measuring 4 marlas 2 sarsais out of Khasra No.7399-7422/3919 was disposed of through auction in' favour of respondent No.1 and subsequent order dated 13-4-1981 passed by the Deputy Settlement Commissioner and the order dated 16-5-1982 passed by the Administrator.
7. The Writ Petition was partly accepted and the orders of the Administrator dated 16-5-1982 and 31-10-1982 and the order of the Deputy Settlement Commissioner dated 13-4-1981 were quashed for the determination of the entitlement of the petitioners for transfer of 10 marlas and 5 sarsais but it declined to declare the auction proceedings dated 31-3-1979 as without lawful authority and void.
8. The learned counsel for the petitioners has submitted that the building site upon which permanent construction existed at the time of submission of form under Settlement Scheme No.VIlI in the year 1971 could not be treated as available property within the meaning of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 as an available urban property to form part of the Scheme for the Management and Disposal of Available Urban Property, 1977. The subject-matter in dispute could not be disposed of as an open building site in favour of the respondent when the application of the petitioners for transfer of the same remained pending.
He further submitted that the petitioners had made no claim against Maulvi Muhammad Farooq and they had made their claim to the extent of the land transferred in favour of Muhammad Latif only. The learned counsel has relied on Muhammad Rashid v. Settlement and Rehabilitation Commissioner 1987 SCM R 1021.
9. The contentions raised require examination. Leave accordingly is granted. Security Rs.2,500.