' MUNIR A. SHAIKH, J.---Through this application, Subedar Abid Hussain, applicant/respondent No,1 seeks review of judgment, dated 20-1-1986 passed by this Court by which Writ Petition No,1005/R of 1978 was accepted and the case remanded to Additional Deputy Commissioner(G), Lahore for fresh decision.
2. The dispute relates to Plot No,B-894 measuring 7 Marlas situated at Khajurwali Ghali Maddan Bhaian, inside Bhati Gate, Lahore. Through order, dated 21-8-1977 passed by the Deputy Settlement Commissioner (Plots) Lahore, this plot was transferred to the applicant which order was challenged by Taj Muhammad Khan and Umar Khan, two real brothers through Writ Petition No,1005/R of 1978 which was accepted vide judgment under review.
3. The writ petition was accepted mainly on the ground that B.S. Forms allegedly filed by the writ petitioners vide Receipt No,DSC(L)/203 under Scheme No,VIII on 29-2-1970 had not been disposed of and they were not heard before order, dated 21-8-1977 was passed for transfer of plot in dispute in favour of the present applicant.
4. In support of this application, learned counsel for the applicant has raised the following contentions:---
(a) that it was altogether ignored that the month of February, of the year 1970 was of 28 days, therefore, no form could possibly have been submitted on 29-2-1970 as alleged by the writ petitioners,
(b) that it was pointed out in the written statement by the Settlement Department which was present on the record that Form No,203 which formed the basis for remanding the case was entered in the register maintained for the purpose on 29-12-1970 which was filed by Umar Khan son of Zarin Khan for transfer of Khasra No,13/908 inside Mori Gate, Lahore whereas the plot in dispute was situated in Bhati Gate, Lahore,
(c) that with the written statement filed by the applicant, a certified copy of the plaint of the suit for permanent injunction filed on 12-5-1977 by Taj Muhammad, one of the writ petitioners was appended in which Taj Muhammad admitted that he was occupying the plot as tenant of Habib Ullah, deceased, predecessor-in-interest of the applicant for the last fifteen years at the rate of Rs,65 per month in which no mention was made that his brother, Umar Din, the other writ petitioner was also occupying the same, with him,
(d) that a pure question of fact having been decided by D.S.C. (Plots) through order of transfer of the plot, dated 21-8-1977 that, the applicant was entitled to its transfer as successor-in-interest of Habib Ullah, deceased who was the original applicant which finding could not have been assailed in Constitutional jurisdiction.
5. Learned counsel maintained that the judgment under review is based on errors and mistakes apparent on the face of the record, therefore, should be re-called and writ petition dismissed.
6. The arguments have considerable force. The main ground on which the writ petition was accepted was' that without disposing of Form No,203 allegedly filed by the writ petitioners on 29-2- 1970 seeking transfer of plot in dispute and hearing them the order, dated 21-8-1977 for transfer of the same was passed in. Favour of the applicant. It was considered that month of February of the year 1970 was of only 28 days and no form could possibly have been filed on 29-2-1970 which fact was so apparent on the face of the record which was sufficient to raise an inference that' the plea of submission of the said form was falsified by the said fact. In the written statement filed by the Settlement Department, it was clearly pointed out that Form No,203 was entered in the relevant register on 29-12-1970 which Umar Din filed for transfer of plot bearing Khasra No,12/908 which was situated in Mori Gate whereas the plot in dispute was situated in Bhati Gate from which it was clearly established that he was not in possession of the plot in dispute but was allegedly in possession of a plot in Mori Gate bearing Khasra No,13/908 which fact was corroborated by Taj Muhammad who filed suit for permanent injunction admitting that he was in possession of plot in dispute as tenant under Habib Ullah, predecessor-in-interest of the applicant who was the original applicant in which no mention was made about the possession of the plot by Umar Din alongwith him. While passing the impugned judgment, it appears that these matters which were brought on record escaped the notice of the learned Judge which if would have been considered, the judgment certainly would have been different and there was no need to remand the case. It has been consistently held by superior Courts that any person in possession of evacuee property as tenant under another person who was applicant for the transfer of the same could neither claim any independent right for transfer 'of the said property as he could not be deemed to be in possession of the same in his own right as contemplated by law which was sine qua non for seeking transfer of the evacuee property/plot, therefore, Taj Muhammad, according to established law as declared by the superior Courts could not be the applicant for the transfer of the plot in dispute and to compete with Habib Ullah, deceased, the original applicant through whom the present applicant as his successor-in-interest has been transferred the plot. Some of the reported judgments in support of this view are as follows:
(1) Syed Muhammad Munir Shah v. Mst. Akbar Jan and others PLD 1963 (W.P.) 59;
(2) Ch. Sadiq Ali v. Settlement Commissioner, Lyallpur and 6 others 1977 SCM R 44; and
(3) Shamsuddin and another v. Haji Khuda Bakhsh and 3 others 1975 SCM R 215.
7. For the foregoing reasons, we are satisfied that it is eminently a case for review of judgment dated 20-1-1986 as the same suffers from not only errors apparent on the face of the record but even otherwise, there are sufficient grounds for its review.
8. This application is accepted, the judgment dated 20-1-1986 passed by the learned Single Judge is set aside and the said writ petition dismissed with no order as to costs.
Review .