' FAZAL ILAHI KHAN, J.---Leave to appeal is sought for against the judgment of a Single Judge of the Peshawar High Court, Circuit Bench, Abbottabad, dated 23-12-1992, dismissing the petitioners' Writ Petition No, 97 of 1991.
' Facts of the case relevant for the purpose at this stage briefly stated are that the petitioners are in occupation and possession of 8 evacuee shops shown as 31/23-A to 31/23-H adjacent to the compound of House No, 3123 on the roadside, link road, Abbottabad. They had allegedly rebuilt these shops in the year 1951-52. Petitioners applied its transfer on the prescribed form to Deputy Rehabilitation Commissioner, Bharwala on 7-8-1955 but no action was taken on these applications.
On 4-1-1960 petitioners again submitted applications for the transfer of the plot under the shops but these were returned on the ground that the tie of the property was in dispute hence no transfer could be made. However, on 4-3-1960 a double storey House No, 3123 situated on link road alongwith an open compound measuring 3 times only of the covered area was transferred in favour of respondent No,
4. The transfer order was then amended on 20-4-1960 by the Settlement Commissioner to the effect that respondent No, 1 is not entitled for transfer of the shops on the roadside adjacent to the house No, 3123. Respondent No, 4 did not object to this clarification in the transfer in his favour. The predecessor-in-interest of respondents Nos. 5 to 11 Islam Muqtada Khan and respondent No, 12 alleged to have entered into an agreement for sale with respondent No, 4 on 26-4-1960 and have also entered into an agreement of association in respect of house No,3123 and the land attached to it referred to above. This agreement was accepted by the Deputy Settlement Commissioner on 30-4-1960.
' One Mst. Fazeelat Jan moved the Settlement Authority claiming 1/2 share in house No, 3123 and for its declaration being non-evacuee. Her claim was accepted by Additional Custodian by order dated 14-12-1960 and she was held to be owner of half of the house No, 3123 alongwith some other non-evacuee land. It was directed by the Settlement and Rehabilitation Commissioner on 15-5-1971 to partition the property and separate the non-evacuee share. Accordingly on 7-5-1979 partition was carried out and the main Bungalow No, 3123 and a portion of the compound was given to Mst.
Fazeelat and Mir Afzal as non-evacuee property and marked this portion in red ink "A" on the site plan attached with the order. The portion marked "B" on the site plan was allotted to respondent No,
4. The portion marked as "C" which includes the 8 shops in question was left unallotted. Permanent transfer order was issued in favour of respondent No, 4 in respect thereof on 7-5-1979 and the property allotted was shown to be open Plot No, 3123/B measuring 6,141 sq.Ft. Without making any reference to any constructed shops.
' After the repeal of the Evacuee Laws by Act XIV of 1975 a scheme was framed for the transfer of undisposed of and available evacuee property, which is called Scheme No, I, in the year 1976. As the shops were in occupation of the petitioners since 1947 and they had re-built the same and were 'available property' within the meaning of the Act they made fresh application for its transfer on 19-9-1977.
' The predecessor-in-interest of respondents Nos. 5 to 11 and respondent No, 12 submitted a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 before the High Court wherein validity of the order of Additional Settlement Commissioner, Abbottabad passed as back as 15-5-1971 was assailed to which the petitioners were also impleaded as parties on their application.
' The learned High Court remanded the case back to the Additional Settlement Commissioner on 27-2-1988 with the direction to determine as to who are persons actually entitled to the transfer of evacuee share in the property in dispute including that claimed by the petitioners, For the first time and after the remand respondents on 21-11-1990 produced a copy of a provisional transfer order purported to have been issued on 28-7-1961 in favour of respondent No,
4. The genuineness of the said order was challenged by the petitioners through an application made before respondent No, 1.
The petitioners had been earlier informed by the department that no P.T.O. Was ever issued to respondent No, 4 after 4-3-1960. The Additional Settlement Commissioner vide his order dated 8- 5-1991 rejected the petitioners' plea for transfer of the shops ignoring their entitlement to the property shown as "C" in the site plan prepared in the partition proceedings. The petitioners challenged the judgment of Additional Settlement Commissioner through Writ Petition No, 97 of 1991 in the High Court but it was dismissed on 23-12-1991. Leave to appeal is prayed for against the judgment of the High Court.
Leave is granted, inter alia, on the ground; whether, the order of remand passed by the High Court dated 27-2-1988 has been properly complied with by the Additional Settlement Commissioner; whether the shops in occupation of the petitioners is available property within the meaning of scheme for management and disposal of available properties and the petitioners were entitled to the transfer of the shops under the scheme; whether the property marked "C" in the site plan has actually been transferred to Sardar Muhammad Anwar Khan and whether he was entitled to its transfer. And as to whether the P.T.O. Dated 28-1-1961 produced by Sardar Anwar Khan before the Additional Settlement Commissioner during arguments of the case was not a forged document, it had ever seen light of the day before it was produced.