RUSTAM S. SIDHWA, J.---This is a petition by Mumtaz/Taj Muhammad, petitioner, seeking leave to appeal against the judgment of the Peshawar High Court, Circuit Bench Abbottabad, dated 27-11- 1989 accepting the writ petition of Subedar Muhammad Amin respondent No.1 and declaring the order of the Additional Commissioner/Settlement Commissioner, Hazara Division, Abottabad, respondent No.2, dated 2-5-1983 as illegal and without lawful authority and setting the same aside.
Shop No.265/C was an evacuee property which was purchased by Subedar Muhammad Amin, respondent No.1 in open auction on 26-3-1961. The sale price was adjusted through compensation book but this compensation book was sent for in an enquiry by the Settlement Karachi which remained there for a long time and in spite of the constant efforts of respondent No.1 this could not be received back. Respondent No.1 preferred to deposit the sale price is cash and on its deposit the P.T.D. Was issued in his favour. On 2-2-1981 Mumtaz/Taj Muhammad petitioner applied under Scheme No.1 of 1976 for transfer of the shop to him, but with no success and, therefore, he filed before the Additional Commissioner/Additional Settlement Commissioner, Hazara Division, respondent No.2, two separate revision petitions. In one he prayed for the transfer of the shop in his favour, whilst in the other he requested for cancellation of the transfer order from the name of the respondent No. 1. He withdrew the revision filed for the transfer of the shop to himself, but pressed the one accepted against the cancellation of the transfer order of respondent No.1 and consequently succeeded in persuading respondent No. 2 to pass the impugned order dated 2-5- 1983 whereby the transfer order in favour of respondent No.1 was cancelled. Being aggrieved by the said order respondent No.1 filed writ petition which was accepted on 27-11-1989. The petitioner now seeks leave to appeal against the said order.
3. On behalf of the petitioner it is submitted that immediately after the auction took place in favour of respondent No.1 on 26-3-1961 but before the same could be confirmed, the Deputy Settlement Commissioner, Hazara Division on 6-3-1962 issued a list of evacuee trust properties and forwarded the same to the Deputy Commissioner and Chairman, Evacuee Trust Committee, Hazara Division, whjrU.1ist included the disputed shop in question at S. No.16 of the said list. It is submitted that the Deputy Settlement Commissioner, Hazara Division, thereupon on 29-5-1967 rejected the application of respondent No.1 for the transfer of the said shop and deleted the said shop also from the first list of auction of the evacuee shops that had earlier been issued by him. It is further contended that in 1981 respondent No.1 sought protection of a policy letter issued by the Chief Settlement Commissioner vide Memo. No.1052/Pot/71, dated 17-6-1971 and claimed that since the disputed shop had been auctioned prior to June, 1968, he should be issued the transfer order, whereupon at this stage he was allowed to clear the payment and he obtained the transfer order on 2-2-1981. Since the property had earlier been deleted from the list of evacuee properties, the petitioner was justified in moving for the transfer of the shop to be set aside. It is lastly contended that the learned Single Judge of the Peshawar High Court legally erred in declaring the order of the respondent No.2 dated 2-5-1983 as illegal and without authority, notwithstanding the fact that at the time when the transfer order was issued, the disputed shop had passed out of the compensation pool and was being 1reatcd as evacuee trust property.
4. We have given our anxious consideration to the arguments of the learned counsel for the petitioner and have also perused the record. It is admitted that in 1961 the disputed shop was treated as evacuee property and auctioned in favour of respondent No.1 against his highest bid. If the disputed shop was evacuee trust property, the petitioner should have moved the Chairman, Evacuee Trust Property Board, for declaration to that effect. The Additional Commissioner/Additional Settlement Commissioner was not competent to declare the disputed shop as evacuee trust property. Even otherwise the petitioner withdrew his own revision petition claiming entitlement to the disputed shop. Having failed to prove his own entitlement, the petitioner cannot be permitted to lay any claim on the basis of his adversary's infirmity. The judgment of the learned Single Judge does not suffer from any error in law. There being no merit in the case, the same is dismissed and the leave is refused.