NASIM HASAN SHAH, J.-This order will dispose of C. P. S. L. A. No. 456 of 1975 and C. P. S. L. A. No. 992 of 1975. The former is directed against the order dated 27-2-1975, whereby Writ Petition No. 131-R of 1975, filed by Fazal Elahi Bhatti (son) and Mst. Ghulam Fatima (widow) of Sher Muhammad Bhatti (petitioners herein) was dismissed, while the latter is directed against the order dated 22-4-1975, Whereby a learned Division Bench of the Lahore High Court refused to entertain the appeal fixed by Muhammad Asiam Bajwa (petitioner in C. P. S. L. A. No. 992 of 1975) against the order dated 27-2- 1975, passed in Writ Petition No. 115-8 of 1975. The effect of these orders was that the order dated 28-6-1975, passed by the learned Settlement Commissioner, Lahore, whereby a part of the property in dispute was transferred to Muhammad Aslam Bajwa and the other part to Fazal Elahi and Mst. Ghulam Fatima, was maintained.
2. There has been a protracted litigation in connection with the transfer of the property in dispute, which bears No. SE-10-R-19/20, Nicholson Road, Lahore. The property is apparently a large one and more than one family have been occupying it. On the commencement of the settlement operations, the Deputy Settlement Commissioner vide order dated 1-12-1969, transferred the entire property in favour of one Tufail Ahmad. Three appeals were filed against this orders, one by Mst.
Maryam amt her sister Mst. Ismat Jahan, the second by Sher Muhammad Bhatti, predecessor-in- interest of Fazal Elahi Bhatti and Mst. Ghulam Fatima and the third by Hafiz Muhammad Tayyab, The Additional Settlement Commissioner, vide- his order dated 10-2-1960, cancelled the transfer in favour of Tufail Ahmad on the ground that as the case of the property was sub judice before the Settlement Com--missioner, it could not have been disposed by the Deputy Settlement Commissioner when he passed the impugned order. The matter was taken up by the Deputy Settlement Commissions again, who found in his order dated 27-4-1960 that Tufail Ahmad P. As disentitled to the property, as he was not personally residing in the house. On the other band, Sher Muhammad was found entitled to the transfer of et portion of the house. Accordingly, the Deputy Settlement Commissioner transferred it to him. Another part of the property was found to be a shop which was occupied by Hafiz. Muhammad Tayyub and that part was transferred to him.
Aggrieved by this order three appeals were filed: one by Miss Maryam Malik etc., the second by Tufail Ahmad and the third by Hafiz Muhammad Tayyub. The Additional Settlement Commissioner, Mr. Ghulam Jillani Khan, in his appellate order dated 9th March, 1961, divided the property into three portions, two residential and one shop. The back portion of the residential house was transferred to Miss Maryam Malik etc., the front portion, except the shop, was transferred to Tufail Ahmad while no interference was made in the transfer of the shop made in favour of Hafiz Muhammad Tayyub Sher Muhammad Bhatti, however, was eliminated altogether. Aggrieved thereby, Sher Muhammad filed a revision petition against this order. Two other revision petitions, one by Hafiz Muhammad Tayyub who claimed the upper portion of the shop transferred to him and the other by Tufail Ahmad, were also filed against it. The learned Settlement Commissioner found that Tufail Ahmad had already left the house after his transfer from Lahore to Sheikhupura and his allotment was cancelled in 1953 and that his portion was actually in the occupation of his brother-in- law Muhammad Aslam Bajwa (petitioner in C. P. S. L. A. No. 952 of 1975). Consequently, ho was found to have no right to the transfer of any portion of the house. So far as the revision petition of Hafiz Muhammad tayyub eras concerned, it was dismissed on the ground that the upper portion was a part of the residential building which he could not obtain as part of his shop As regards the revision petition of Sher Muhammad, it was found that he was a claimant displaced person and was allotted a portion of the house on 3-2-1958, but could not be put in possession of it before 20-12-1958 despite his bus: efforts. In these circumstances, he was entitled to the benefit of the instructions of the Central Government contained in the Press Note of 9th September, 1960, on the subject of "transfer of houses and shops to the allottees without possession". On the other hand. Miss Maryam Malik wax held not to be a displaced person, but to be a local from Sialkot who was serving at Batala (East Punjab) in connection with her service. Accordingly, the, transfer in her favour was set aside. The result was that the entire house except the shop transferred to Hafiz Muhammad Tayyub was ordered by the Settlement Commissioner to be transferred to Sher Muhammad, tide his order dated 9-8-1961.
3. Curiously, despite the above order disposing of 'he entire property an order was passed on 28- 10-1961 by the Deputy Settlement Commissioner to put a room in the occupation of one Muhammad Akram, in this property to unrestricted public auction. Sher Muhammad Bhatti Bled writ petition No. 1569-8 of 1963 to challenge the aforesaid order of the Deputy Settlement Commissioner, while Miss Maryam Malik and Tufail Ahmad filed separate petitions to challenge the said order. All the three writ petitions were disposed of by -a common order, passed by Mr. Justice Abdul Kadir Sheikh, whereby both the order of the Settlement Commissioner dated 9-3-1961 and the subsequent order of the Deputy Settlement Commissioner dated 28-10-1961 were set aside and the case was remanded to the learned Settlement Commissioner for decision afresh. Sher Muhammad Bhatti challenged this order by filing a Letters Patent Appeal, but this was dismissed on 8-10-1971 by a Division Bench, comprising Mr. Justice S. A. Haq, Chief Justice (as his Lordship then was) and Mr. Justice Muhammad Akram.
4. It appears that before the matter could be taken up afresh on remand, a part of the property, which was marked as "A" to "R" by the Deputy Settlement Commissioner, Centre-I, Lahore, was transferred to Muhammad Aslam Bajwa by him, vide his order dated 22-11-1973, on the ground that this portion had not yet been disposed of and was "available for transfer to Muhammad Aslam Bajwa under the reconstituted Settlement Scheme No. VIII as it was in his possession.
5. When the case came up before the learned Settlement Commissioner, it transpired that Miss Maryam Malik had entered into a compromise with Sher Muhammad Bhatti (predecessor-in- interest of Fazal Elahi Bhatti and Mo. Ghulam Fatima) to allow the transfer of the portion in her occupation to them Tufail Abroad also did not press his Revision Petition as he was apparently not interested in contesting the transfer of his portion to Muhammad Adam Bajwa, who had since, been transferred the same vide order of the Deputy Settlement Commissioner dated 22-11-1973.
During the course of the hearing before the Settlement Commissioner, Fazal Elahi Bhatti simplified matters further by allegedly stating that he had no objection to the transfer of the portion of the property already made in favour of Muhammad Aslam Bajwa and merely contending that he was desirous of contesting only the transfer of the shop on the ground-floor in possession of Muhammad Akram which was not yet disposed of. The learned Settle--ment Commissioner accepted this plea and decided to transfer the said shop in favour of Fatal Elahi Bhatti, with the result that with the exception of the portion occupied by Muhammad Aslam Bajwa, the rest of the property was transferred to the legal heirs of Sher Muhammad Bhatti. This order was gassed on 28- 6-1975.
6. Before us, on behalf of Sher Muhammad Bhatti, it was contended that Muhammad Aslam Bajwa was never a, pasty either before any Settlement Tribunal or before the High Court in the Writ Petitions or in the Letters Patent Appeals, and his case was also 'not under consideration after the acceptance of the Writ Petitions and remand thereto. In these circumstances, the Deputy Settlement Commissioner had no authority in law to transfer a portion of the property to Muhammad Aslam Bajwa. His order dated 22-11-1973 was, therefore, a nullity. This was also so because the said order dated 22-11-1973 was passed without issue of any notice to the other interested parties.
7. On behalf of Muhammad Aslam Bajwa, it was submitted that he had in fact filed L. H. Forms for the transfer of the said property on 1-8-1959 as tie property was in his possession since 1950, and this fact was even mentioned in the order of the Settlement Commissioner dated 9-8-1961 and that he bad again filet a form on 22-10-1962 after the promulgation of the Displaced Persons (Compensation and Rehabilitation) Amendment Ordi--nance II of 1962 and that the form referred to in the order of the Deputy Settlement Commissioner dated 22-11-1973 was filed on the oral direction of the Deputy Settlement Commissioner in order to further fortify and consolidate his claim under Scheme VIII of the Displaced Persons (Compensa--tion and Rehabilitation) Act, 1958.
He, therefore, submitted that not only was be entitled to the petition actually in his possession which was transferred to him, but also to the shop in occupation of Mohammad Akram, which was directed to be put to auction on 28-10-1961 as it was an integral part of the poi Lion transferred in his favour.
8. The learned Judge in the High Court rejected the claim of Muhammad Aslam Bajwa to the room in dispute on the ground that it was never in his possession and that it did not constitute a part of the portion in his possession. It was put to auction and the auction was set aside by this Court on the petition of Sher Muhammad Bhatti. Therefore, he had no right to ask for its 'transfer. So far as the challenge to the portion transferred to him by the heirs of her Muhammad Bhatti was concerned, it was observed that it was stated before the revisional Court that there was no objection to the transfer of the portion already transferred to Muhammad Aslam Bajwa. In these circumstances, the heirs of Sher Muhammad Bhatti could not challenge the transfer of the portion in his possession at this stage.
9. Before us, Mr. Iftikhar Ali Sheikh, appearing on behalf of Fasal Elahi and Mst. Ghulam Fatima, stated that the learned Settlement Commis--sioner had wrongly mentioned in his order that they had consented to the transfer of the portion in occupation of Muhammad Aslam Bajwa, otherwise the latter had no right to the transfer of any portion of the properly.
10. We are not persuaded to agree because the learned Settlement Commissioner appears to have passed a consent order and the learned Judge in the High Court bas accepted this position. We are not inclined to permit this factual matter to be reagitated before us at this stage. So far as the claim of Muhammad Aslam Bajwa to the transfer of the shop underneath the portion transferred to him is concerned, we agree with the reasons given by the High Court in rejecting this claim that this portion has never been in occupation of Muhammad Aslam Bajwa and the disposal of this portion through auction having been successfully challenged by Sher Muhammad Bhatti by filing a writ petition in the High Court, Muhammad Aslam Bajwa had no right to its transfer. The learned Judge of the High Court has exercised his discretion properly and there is no ground for interference. Both the petitions are dismissed.