The dispute relates to Property No. SE=IV-41-S-22, commonly known as 22 Manohar Street, Nicholson Road, Lahore. It is a residential house.
2. There is a chequered history of the case which need not be reproduced in extenso. Suffice it to mention for the purpose of this writ petition, that in pursuance to a remand order dated 16-2-1980 passed in W.P. No. 343-R of 1974, the case was taken up by the Settlement Commissioner (respondent No. 3 herein). Through the remand order it was directed that the Settlement Commissioner shall hold a proper inquiry in which all the affected parties would be given reasonable opportunity of being heard and adducing evidence and then pass a fresh order objectively and reasonably, in the circumstances of the case, in accordance with law.
3. Before the Settlement Commissioner, the contesting parties, i.e. the petitioners on one side the respondent No. 1 on the other, entered appearance. They were granted full opportunity of leading evidence and they availed of the same by placing on record documents in support of their respective versions and producing some witnesses. The learned Settlement Commissioner also paid a visit to the spot and then, after hearing the parties, pronounced the order dated 24-3-1982, impugned in the present writ. petition. He held that Hassan Ashraf Siddiqui respondent was in possession of the disputed property, prior in time to that of Muhammad Amir, predecessor-in- interest of the petitioner He also held that the main building (called portion No. II), subject --matter of the present writ petition, was indivisible. In this view of the matter, he directed its transfer to Hassan Ashraf respondent.
4. In arriving at the conclusion that the disputed property is indivisible, the learned Settlement Commissioner, after paying a visit to the spot, observed, inter alia, that the building has a single entrance and single stair--case; and keeping in view the width of the main door and the staircase and the existence of amenities of life, coupled with the basic requirement of privacy and harmony, there was hardly any scope for its division into parts, meaning thereby that the property could accommodate only one family. As regards the merits of the case, he found that Hassan Ashraf had a clear edge over the petitioners for transfer of the property in his name., He took note of the school leaving certificate and certain other documents produced by the petitioners, and after going through the other material available on record, arrived at a finding of fact that the petitioners had failed to prove that their predecessor-in---interest was in prior possession of the property in question. Consequently, the property in dispute was directed to be transferred to Hassan Ashraf respondent.
3. Syed Zamir Hussain, learned counsel for the petitioners, during the course of arguments, made a feeble attempt to submit that the property in question was divisible. In his view, since the two families were residing therein since after the partition, this fact, per se, is sufficient to hold that the property was, in fact, divisible, and as the purpose of the settlement laws is to settle people and not to displace them, the finding of the Settlement, Commissioner, to the contrary, was not only' unjust, but arbitrary and thus merited to be quashed as being without lawful authority. He even went to the extent of saying that there was a possibility of compromise between the parties, implying thereby that the petitioners were still alive with the hope that they might be accommodated in the premises in dispute by Hasan Ashraf respondent. When questioned, learned counsel for Hasan Ashraf respondent clearly stated that no such compromise was in the offing and that the case, per necessity, has to be decided on merits.
4. BAs regards the submission of Syed Zamir Hussain that the property was divisible and, therefore, the petitioners should not be ousted there from completely, suffice it to say that this is contrary to the stand taken by his clients before the learned Settlement Commissioner. Reference to para 6 of the impugned order would show that before the said officer it were the petitioners who had forcefully asserted that the property was indivisible and that it should be transferred in their names exclusively. In these circumstances, it is not possible for this Court, in exercise of writ jurisdiction, to upset the finding of the learned Settlement Commissioner, in so far as it relates to the indivisibility of the house in dispute.
5. It was next contended on behalf of the petitioners that the evidence/material placed on the record of the learned Settelement Commissioner established beyond any shadow of doubt that the predecessor-- in-interest of the petitioners, occupied a portion of this house prior in time viz-- a-viz Hassad Ashraf respondent, and the finding recorded to the contrary stood vitiated on the face of the record. On the contrary, both the learned counsel for respondents 1 and 2 have supported the impugned order of the Settlement Commissioner, and in their view there is neither any misreading nor non---reading of evidence/material of such nature as to render the impugned order to be without lawful authority.
6. It is well-settled that findings of fact recorded by a tribunal of exclusive jurisdiction, after taking into consideration all the relevant factors, which findings it was competent to arrive at, are not open to scrutiny in writ jurisdiction. See Mirza Akram Beg v. Messrs Abdul Ghani and others (1987 SCM R 1284).
7. I have gone through the evidence/material placed before the learned Settlement Commissioner.
In my view, he has correctly appraised the same before recording a reasonable and fair finding of fact to the effect that it is Hassan Ashraf respondent who first arrived in the house in dispute and Muhammad Amir, predecessor'-in-interest of the petitioners, was later to come.
8. Learned counsel for the petitioners wanted me to look into the statement of Hassan Ashraf respondent recorded by this Court during the course of hearing of W.P. No. 343-R of 1974, in support of his stance that the predecessor-in-interest of the petitioners, was the first who entered the house and Hassan Ashraf came there much later.
I am afraid, it is not possible for me to look into and appraise the statement of Hassan Ashraf, for the reason that after the case was remanded to the Settlement Commissioner, it was the duty of the petitioners to place a copy of the said statement before the aforesaid officer to enable him to appraise it, in conjunction with the other evidence/material on the record and then pronounce his decision on the crucial question involved in the case, namely, as to which of the contending parties was in prior possession. I have questioned the learned counsel on this aspect 'of the matter and he has very fairly conceded that neither a copy of the statement, referred to above, was procured and placed before the Settlement Commissioner, nor even a reference to the same was made during the course of arguments before him. In this view of the matter, I am not in a ,position to look into this, statement at this stage.
9. For what has been said above, there is no merit in this writ petition. It is dismissed with no order as to costs.