' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 13-12- 1989 passed by a learned Single Judge of the Peshawar High Court in Writ Petition No,164 of 1981 filed by the appellants, dismissing the same and maintaining the orders dated 9-94976 and 9-8- 1980 passed by the Deputy Settlement Commissioner, Peshawar, and the Settlement and Rehabilitation Commissioner, Peshawar, respectively, whereby the transfer of the suit shop, hereinafter referred to as the shop, in favour of respondent No,3 was made and maintained, respectively.
2. The facts to be noted are that the building bearing Nos.89/11 and 89/12 known as Jaimal Singh Building, situated on Sardar Road, Peshawar Cantt., hereinafter referred to as the building, comprises of ground and the first floor. It seems that the first floor was in occupation of one Mst.
Husna Begum, wife . Of Tahir Farooqi, whereas the ground floor was partly in occupation of appellant No,1, Hafiz Laeeq Ahmad, and partly in occupation of Naeem and Sons. It may be observed that it is the case of respondent No,3 that he had been in occupation of the shop even before appellant No,1, who was in occupation of two rooms, and the third room on the ground floor was used as the shop by respondent No,3. Be that as it may, M/s. Naeem and Sons did not apply for the transfer of the portion in their occupation but appellant No,1 applied for his portion as a non- claimant. The Deputy Settlement Commissioner ordered the transfer of the building as a whole to Mst. Husna Begum. Thereupon, appellant No,1 filed an appeal which was rejected as time-barred.
Against the above order, appellant No,1 filed a revision petition which was disposed of by the Settlement Commissioner by his order dated 13-104960, in which he held that appellant No,1 had no case for the transfer of his house because he had no allotment and was an unauthorised occupant. He also opined after inspecting the building that it was a very big building which had two separate numbers and which was always occupied by more than two persons and there was no reason why it should not be divided into two separate units and disposed of separately as two units. He accordingly purported to divide the building into two equal portions vertically and ordered the transfer of half portion to Mst. Husna Begum. He rejected appellant No,l aforesaid revision petitions. After that the matter was taken up before the Settlement Commissioner by Mst. Husna Begum as well as by appellant No,1 through revision petitions Nos.309 and 616, respectively. The Settlement Commissioner, exercising the powers of the Chief Settlement Commissioner, by his order dated 21-6-1961 dismissed the revision petition of Mst. Husna Begum, whereas he upheld the revision petition of appellant No,1 and ordered the transfer of the portion of the ground floor which was in occupation of appellant No,1. He also ordered that the other portion in possession of a Printing Press should be put to auction. The operative portion of the order reads as follows:- " It is an admitted fact that Hafiz Laeeq Ahmad has been in possession of his portion since a long time though without holding an allotment order, therefore, his possession was undisputed and as such he could apply for transfer even though he was not an allottee. He is a non-claimant no doubt but even as such he could request for its transfer. It is a self-contained unit which he is occupying and as such it should have been transferred to him. The other portion which is being used as a Printing Press will be put to auction while Mst. Husna will be given transfer deed only for the first floor which has been in her possession as an allottee. I may mention that she holds a nominal claim of Rs,2,000. Thus the petition of Mst. Husna fails and is dismissed and the petition of Hafiz Laeeq Ahmad is allowed with the direction that the portion in his possession be transferred to him. The rest of the portion in the ground floor will be put to auction."
3. It appears that Muhammad Amin son of Muhammad Naeem, the owner of the Printing Press, contested the above order inasmuch as eventually he filed Writ Petition No,374 of 1964 which was allowed by the Peshawar High Court and the case was remanded to the Additional Settlement and Rehabilitation Commissioner, who by his order dated 20-44971 ordered the cancellation of the auction of the portion of ground floor in favour of Tahir Farooqi and ordered the transfer of the same to Muhammad Amin. The operative portion of the order reads as follows:- "Regarding his objection that a person who had been transferred a home and a shop is not entitled for the transfer of another property whether house or shop under the conversion scheme as industrial concern. The onus to prove this was put to the learned counsel who failed to establish it.
The record produced regarding the transfer of properties made to Muhammad Amin showed that a Balakhana bearing Nos.85/4A and 85/1 in respect of a Chobara and a shop beneath it was transferred to him on his CH form treating both the units as a house. Muhammad Amin's possession over the disputed portion since 1952 for which he first filed a CS form and subsequently an application under the conversion scheme on the introduction of this scheme was also found established from the record produced by the representative of the D.S.C. Peshawar. Therefore the petition for transfer of Muhammad Amin, in respect of the disputed unit (portion in possession) under the conversion scheme has been accepted and the same has been transferred to him. The amount deposited, by the auction-purchaser Mr. Tahir Farooqi, will be refunded to him under the rules."
4. It seems that appellant No,1 entered into a sale agreement on 19-71963 with appellant No,2 agreeing to sell the portion of the ground floor of the building transferred to him in favour of appellant No,2. It is the case of appellant No,2 that after the above sale agreement, she inducted respondent No,3 as a tenant into a room at Rs,60 per month on 1-1-1965 i.e, after the expiry of nearly two years from the date of entering into an agreement of purchase and taking over of possession of the portion of the ground floor transferred to appellant No,1, whereas the case of respondent No,3 is that he was not inducted by appellant No,2 as the tenant and that he was in possession. Since 1950, and that he paid rent for a period of 9 years and 10 months under a mistake and on account of fraud of appellant No,2, who claimed to be the purchaser of a portion of the ground floor including the shop, but upon discovery of the above fact that the shop was not transferred to appellant No,1 by the Settlement Department, he stopped making of payment of rent and also applied for the transfer of the shop. Be that as it may, it appears that upon respondent No,3's application filed under Scheme No, VIII, Deputy Settlement Commissioner transferred the shop to respondent No,3. Against the above order, appellant No,1 filed a revision petition which was dismissed by the Additional Commissioner/Settlement Commissioner, Peshawar, by his order dated 9-8-1980. The operative portion of the order reads as follows:- "The original NCH Forms dated 8-8-1959 submitted by Hafiz Laeeq Ahmad reveals that he was in possession of only two rooms of the building which was transferred to him. His Forms do not include any shop nor are there any separate Forms or order of any competent authority to prove that the shop in dispute was also transferred to him.
' In the absence of any transfer order of the shop in dispute in favour of the petitioner, his plea claiming its ownership has no force.
' In view of my above observations, as the shop in dispute was available for transfer, therefore, it was rightly transferred to Sagheer Ahmad respondent No,2. The Revision Petition of the Petitioner being without substance is hereby dismissed."
5. Thereupon, the present appellants filed aforesaid Writ Petition No,164 of 1981 which was dismissed by a learned Single Judge of the Peshawar High Court by the judgment under appeal on the ground that the question, whether the shop was part of the unit transferred to appellant No,1, was a question of fact which has been concurrently decided by the two competent forums against him and, therefore, the writ petition was not competent. After that, the appellants filed a petition for leave which was granted to consider the questions, whether after the Chief Settlement Commissioner divided the building into three units as far back as 21-6-1961, the shop which fell in the unit transferred to appellant No,1 was not available property within the meaning of revised Scheme No,VII, and, whether the transfer in favour of respondent No3 was entirely illegal.
6. In support of the above appeal, Mr. M. Sardar Khan learned A.S.C. Appearing for the appellants, has vehemently contended that since the Chief Settlement Commissioner had divided the building into three units, namely, one on the first floor and two on the ground floor, and as one unit on the ground floor was transferred to Muhammad Amin, the owner of the Printing Press, and the second unit was transferred to appellant No,1 for which the price was recovered, the shop which fell within the limits of the unit transferred to appellant No,1 could not have been transferred to respondent No,3 who was the tenant of appellant No,2.
' On the other band, Mr. N.M. Khan, learned A.S.C. Appearing for respondent No,3, has urged that the shop was never transferred by the. Settlement Department to appellant No,1 as it was never in his possession. His further submission was that since the competent forums acting under the Settlement Laws have concurrently held that the shop was not transferred as a part of the unit transferred by the Settlement Department to appellant No,1, neither the High Court nor this Court can interfere with the above concurrent finding of fact in exercise of Constitutional jurisdiction. He also submitted that, in any case, the equity is in favour of respondent No3 inasmuch as admittedly the appellant No,2 and her husband Muhammad Amin got the entire building excluding the shop in their favour from the Settlement Department besides another building comprising of a shop and a residential portion on the first floor, whereas respondent No,3 is transferee of the shop only and no other property.
7. The learned counsel for the parties have referred to the relevant record in support of their respective contentions. The basic question which requires consideration is, as to whether the shop was in the possession of appellant No,1 as it is evident from the above-quoted portion of the Chief Settlement Commissioner's order dated 21-6-1961 that the appellant No,1 was transferred only the portion which was in his physical possession. The appellant No,2's version is that after entering into an agreement to purchase the portion of the ground floor on 19-7-1963 from appellant No,1 (which comprised of three rooms), after its transfer to him by the Settlement Department, she inducted respondent No,3 into a room as a tenant. The question, therefore,' arises, whether the Settlement Department had transferred three rooms to appellant No,1 or two rooms. In this regard, it may be pertinent to refer to para 8 of NCH form filed by appellant No,1 on 8-8-1959 wherein appellant No,1 stated as follows:- "Only two rooms in the lower storey are in my possession."
' Though Mr. M. Sardar Khan, learned counsel for the appellants, has urged that it was a mistake on the part of appellant No,1 to have mentioned two rooms in his possession instead of three rooms, we are unable to subscribe to the above submission. It is the case of appellant No,2 that she had entered into an agreement on 19-7-1963 to purchase the portion of the ground floor from appellant No,1, the portion of the ground floor transferred to him by the Settlement Department, and obtained possession from him in pursuance thereof. In our view, it is highly improbable that she would have let out a room out of the above unit of the ground floor purchased by her from appellant No,1 (who was brother-in-law of respondent No,3), though the entire ground floor was in her possession and that too at Rs,60 per month for using as a shop. The above inference which we are inclined to draw is corroborated by the factum that appellant No,1 in his NCH form stated on 8-8-1959 that he was in possession of only two rooms in the lower storey. If that is so, the appellant No,1 could not have claimed the transfer of the third room on the basis of the above-quoted Chief Settlement Commissioner's order dated 21-6-1961, as it speaks of transferring of the portion of the ground floor in occupation of appellant No,1 in his favour.
8. However, it was vehemently contended by Mr. M. Sardar Khan that even if it is to be assumed that appellant No,1 was not in physical possession of the third room which was used by respondent No,3 as a shop, the factum that the Chief Settlement Commissioner divided the ground floor into two units and that the price of the two units of the ground floor was recovered from appellant No,1 and Muhammad Amin at the ratio of 2:1 with reference to annual rent of Rs,402 the appellant No,1 was transferee of the third room as well. The above contention is devoid of any force as the Chief Settlement Commissioner by his aforesaid order dated 21-6-1961 had ordered the transfer of the portion of the ground floor to appellant No,1 which was in his physical possession as pointed out hereinabove and according to appellant No,1's NCH form, he was in physical possession of two rooms only on the ground floor, for which he had applied for transfer. But in case appellant No,1 had also paid the price of the third room as alleged by him without its being transferred to him, he could ask for refund of the same. However, we cannot examine the above controversial factual aspect particularly in the absence of any finding on the above question by the two forums under the hierarchy of the Settlement Laws and by the High Court.
9. We are, therefore, of the view that the High Court was justified in declining to interfere with the two impugned orders of the Settlement Department in the writ jurisdiction keeping in view the above factual aspect. The appeal is, therefore, dismissed but there will be no order as to costs.