1. ANWARUL HAQ, J. -This petition seeks leave to appeal against an order made by a learned Single Judge of the Lahore High Court on 15-4-75, whereby a Constitution Petition filed by the petitioner in respect of the transfer of an evacuee chaubara was dismissed.
2. The chaubara is part of a composite property consisting of two shop on the ground floor and the chaubara on the first floor, situate in bazar Kasera, Gujranwala Town. By an order made on 9-2- 1960, the Deputy Settlement Commissioner transferred the property according to the possession of the parties as reported by the Incharge of the Field Team, and recommended by the Assistant Settlement Commissioner by his note dated 26-1-15060. According to this report Abdul Hafeez was in possession of one shop as an allottee and had submitted a C. S. Form for the same. Respondent No. 1, Siraj Din, was in possession of the second shop as an allottee and also of the chaubara which was constructed on both the shops. It was added that Siraj Din had applied for the shop as well as the chaubara. This order was implement bar the issuance of transfer documents, and in the P. T. Q.
3. Issued in favour of the petitioner only the shop was shown by being described as BX-IS73/A. The Chaubara was entered in the transfer documents of Siraj Din besides the shop on the ground floor.
4. Subsequently Siraj Din sold the shop in favour of the petitioners and the chaubara to respondent No. 2, Muhammad Bakhsh. On the 24th of May 1961, the petitioner filed a miscellaneous application before the Deputy Settlement Commissioner contending that the chaubara should also have been transferred t6 him. This application was rejected by Deputy Settlement Commissioner by his order dated the 26th of May 1969, and the petitioner was advised to seek judicial remedy against the initial order of transfer made by the Deputy Settlement Commissioner on 9-2-1960. The petitioner thereupon Wed at appeal which war rejected by the Additional Settlement Commissioner by his order date; 24-1-1970 as being barred by time. Thereafter, the petitioner took the, matter in revision to the Settlement Commissioner who, Ivy his order dated 16-4-1970, remanded the case to the Deputy Settlement Commissioner for a fresh decision.
5. In these fresh proceedings the Deputy Settlement Commissioner by his order dated 11-11-1970, transferred the disputed chaubara to the petitioner. Thereupon Siraj Din as well as the vendee Muhammad Baskhsh filed two separate appeals, which were accepted by the Additional Settlement Commissioner by his order dated 1-1-1971, and the chaubara was transferred to Siraj Din. On a revision petition having been filed by the petitioner against the appellate order, the case was once again remanded by the Settlement Commissioner, by his order dated the 20th of March 1971. In this new round of litigation the Additional Settlement commissioner, by his order dated the 6th of May 1971, restored the Chaubara to Siraj Din. The petitioner once again filed a revision petition against this order but the same was dismissed by the Settlement commissioner by his order dated 13-E-1971, holding that according to the survey register the chaubara was in the possession of Siraj Din.
6. Aggrieved by the refusal of the Settlement auhuraies to transfer the chaubara to him, the petitioner invoked the writ jurisdiction of the High Court but as already stated, his petition was dismissed by a learned Judge by his order stated 15-4-1975. The learned Judge held that the petitioner was all along that the Chaubara had been transferred to Siraj Din. But he voiced no grievance against this transfer and against the exclusion of the chaubara from his transfer documents, and accordingly, he could not be allowed to challenge his fact nine years later. According to the learned Judge the petitioner's real grievance arose only when Siraj Din had sold the chaubara to Muhammad Bakhsh.
7. Leave to appeal is sought on the ground that the Settlement authorities as well as the High Court have failed to take note of the fact that the property bearing No. BX-IS-73/A clearly included the chaubara whereas Siraj Din was in possession of property bearing the same number bat distinguished by the letter 'B', which consisted only of the smaller shop on the ground floor. It is next submitted that the chaubara was, in fact, in the possession of the petitioner, but its physical occupation was given up which it became dilapidated but that did not mean that it went into the possession of Siraj Din. Finally, learned counsel submits that the try in the survey register relied upon by the learned Settlement Commissioner was unreliable inasmuch as it showed the date of Siraj Din's possession to be 1-1-1954, whereas the allotment of the --shop in his favour was dated the 29th of December 1954, having been made in pursuance of an order made on that very day by the Rehabilitation Officer of Gujranwala.
8. We see no merit in these submission. There is 'no document on the record to show ;hat. The property described try the letter 'A' comprised one shop on the ground floor and the chauhara situated on both the shop Nor is there is any document to show that property described by the letter 'B' did not include' the chaubara. This particular contention is, therefore, not supported by the record.
9. There is similarly no evidence at all on the record to, show that the chaubara was at any time in the possession of the petitioner; on the contrary, there is the entry in the survey register showing that property B' comprised the shop as well as the chaubara and that the chaubara was in possession of Siraj Din with effect from 1-1-1954. It is true that the allotment order relating to the shop of Siraj Din is dated 29-12-1954, A but that is not enough to negative the entry in the survey register, as the order does not relate to the chaubara. The Settlement Commissioner has accepted the entry in the survey register as being correct. And no reason has been urged at the Bar for doubting the genuineness of this entry, except the order of allotment of, two shop dated the 29th of December 1954. This order, as we have already remarked, does riot relate to the chaubara.
10. The factual position which, therefore emerged from the record which was available before the learned Settlement Commissioner, was that the chaubara had been in the possession of the respondent, Siraj Din. And that it had been transferred to him by the Deputy Settlement Commissioner by his order dated the 9th of February 1960. No satisfactory reason was adduced by the petitioner for riot having challenged that order until the year 1969.
11. In the circumstances, the Courts below were right in refusing to transfer the disputed chaubara to the petitioner. The present petition also fails and is hereby dismissed.