1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court, dated 14-3-1998, whereby accepting the writ petition filed by respondent No,1, a direction was issued to Municipal Corporation and Mirpur Development Authority to hand over the possession of the plot in dispute to respondent No,1.
2. ' The brief facts of the case are that Plot No,6-D/3 situated in Mirpur Town was allotted to respondent No,1 on 16-4-1985. The allotment made in favour of respondent No,1 was challenged by respondent No,3 through a writ petition to the High Court which was dismissed, on 13-1-1988. The order of dismissal of the writ petition filed .By respondent No,3 was upheld by Supreme Court vide its judgment, dated 26-11-1990. The said writ petition filed by respondent No,3 was dismissed on the ground that as Professor Mirza Sherbaz Khan, respondent No,3, had obtained Quarter No,84-D in WAPDA Colony Mirpur, he was not entitled to any further allotment under Estate Rules 1985..
3. Thereafter, respondent No,1 applied to the. Municipal Corporation for the possession of the plot which was allotted to him by Mirpur Development Authority. The matter was referred to the Allotment Committee by the Chairman of Corporation for resolution observing that when the allotment was made by Mirpur Development Authority, Sub-Sector F-1 in which the plot in dispute is situated, had been transferred to the Municipal Corporation and thus, the allotment in favour of respondent No,1 was not properly made. However, respondent No,1 challenged the aforesaid order of the Chairman Mirpur Development Authority before the High Court praying for a writ of mandamus against respondents Nos.1 and 2 to hand over the possessions of the plot. The writ petition was accepted by the High Court whereby Municipal Corporation and Mirpur Development Authority were directed to deliver the possession of the plot in question to respondent No, 1 . The present appeal has been filed by the Corporation contending that as the allotment in favour of respondent No,1 was without jurisdiction the direction issued by the High Court was not sustainable in law.
4. ' We have heard the arguments. It has been contended by Mr. Muhammad Riaz Inqalabi, the learned counsel for the appellant, that allotment in favour of respondent No,1 by the Mirpur Development Authority was bad in law and is not sustainable. He has drawn our attention to the Government Notification, dated 4-2-1985 and has argued that the Mirpur Development Authority had no jurisdiction to make allotment of the plot in dispute on 16-4-1985, because the jurisdiction of the relevant area had already been transferred to the appellant, herein.
5. ' In reply Mr. Muhammad Yunus Tahir, the learned counsel for respondent No,1, has controverted the arguments - advanced by the learned counsel for the appellant. He has argued that in view of the aforesaid notification, the transfer of the jurisdiction of the area from Mirpur Development Authority to Corporation would have no effect on those cases in which any dispute was sub judice before some authority, appellate or otherwise; in such cases the power of allotment remained vested in the Mirpur Development Authority. The learned counsel has argued that initially Plot No,6-D consisted of 4 kanals which was bifurcated in four plots as is evident from the order of the Allotment Committee, dated 19-4-1981. As a result of the death of Jan Muhammad, the father of respondent No,1, plot measuring 1 kanal was allotted to respondent No,1 while remaining were allotted to other deserving claimants. The learned counsel has argued that the dispute regarding the allotment of the plot in question remained pending before the Mirpur Development Authority till the year 1985 when the plot was finally allotted in favour of respondent No,1. The learned counsel has also submitted an application for sending for the relevant record from the concerned authority in support of his contention that in fact the matter in dispute was sub judice before the Mirpur Development Authority when the jurisdiction of the area in which the plot is situated was transferred. The learned counsel has further argued that the appellant did not raise any objection in his written statement filed in the High Court that the area in which the plot in dispute is situated had been transferred to him as such Mirpur Development Authority had no authority to make allotment in favour of respondent No,1. The learned counsel contended that the question' as to whether there was a dispute pending regarding plot in dispute before Mirpur Development Authority when the transfer of jurisdiction took place or not, is a question of fact and same cannot be permitted to be raised for the first time in this Court. The learned counsel has further maintained that had the Corporation, raised this objection in their written statement filed in the High Court, respondent No,1 would have filed the relevant documents in support of his contention that transfer of jurisdiction would not effect the allotment in favour of respondent No,1, because the matter was sub judice before the Mirpur Development Authority at the time of transfer of jurisdiction. The tlearned counsel has contended that it is too late in the day for the appellant to make out a new case on question of face at the appeal stage.
6. ' We have given due consideration to the arguments raised at bar and also closely perused the written statement filed by the appellant herein in the High Court. The appellant, herein, has not raised any question in terms that the allotment made in favour of respondent No,1 was without jurisdiction because the area wherein the plot in dispute is situated stood transferred at the time of the allotment. The question whether any dispute was pending before Mirpur Development Authority at the time of the transfer of jurisdiction of the said area is a question of fact and the same could not be agitated by the appellant herein for the first time in appeal. This is well-settled principle of law that a party cannot make departure from his pleading and set up a new case, particularly when such case needs investigations of question of fact. We are fortified in our view by cases reported as Azad Government and others v. Qamar-uz-Zaman Khan Niazi (1993 SCR 9), Deputy Collector Excise & Taxation and others v. Abdul Hamid and others (1998 M LD 2038), Muhammad Riaz and others v. Azad Government and others (1994 SCR 82) and Muhammad Akbar V. Mst. Fauzia Begum (PLD 1982 SC (AJ&K) 62).
7. ' Mirza Sherbaz Khan, respondent No,3, has contended that some observations made by this Court in the previous round of litigation and in pursuance of the said observations, his case of allotment is still under the consideration of the relevant authorities. It may be observed that the scope of the present appeal is limited to the question as to whether the Corporation could raise the aforesaid point in the present appeal when it has not raised the same in the High Court. The observations, if any, made by this Court as has been contended by respondent No,3, are not relevant so far as the disposal of the present appeal is concerned.
8. ' As the appeal is being disposed of on the legal point, referred to above, we need not send for the record as has been prayed by the respondent through his application.
9. ' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.