P L D 1965 (W (PLP)

MUHAMMAD AKRAM, J.‑This order will dispose of Writ Petition No. 2123‑R of 1962, by Agha Shaukat Ali, Writ Petition No. 2472‑R of 1962, by Mr. Mahmud Khan Durrani and Writ Petition No. 2824‑R of 1963, by Begum Ali Muhammad which are connected together and are directed against the orders dated 19th of March 1962, passed by S. Muhammad Azhar, Additional Settlement and Rehabilitation Commissioner (Judicial), Lahore and dated 5th of September 1962, passed by Sh. Muhammad Rafiq, Settlement and Rehabilitation Commissioner, Lahore.

2. The dispute in these writ petitions pertains to property No. 7, Egerton Road, Lahore, belonging to Lala Guranditta Mall Kapoor and brothers, now evacuees. It comprises of three bungalows located within the same compound. Bungalow No. 1 is situated on the one side and is detached from the rest of the property. The main block is comprised of bungalow No. 2 situated in the middle and bungalow No. 3 at the rear. Besides these residential portions, there are a large number of servant quarters, garages, a tube‑well and a swimming pool situated in one corner of the premises. The property has .got three drives with three main gates, one opening on Egerton Road and the other two on the side of Kashmir Road. There are spacious lawns in the front towards the Egerton Road as well as on the Kashmir Road which are appurtenant to the premises.

3. Bungalow No. 1 is in the possession of Mr. Abdul Hamid Ghani, who is a claimant and is its allottee since March 1957. He submitted a C.H. Form for its transfer to him. Bungalow No. 2 is the main bone of contention. A portion of its ground floor is in the occupation of Agha Shaukat Ali, a claimant, displaced person from the Indian Occupied territories of Jammu and Kashmir State. He is an allottee in possession of this portion. The other portion on the ground floor is allotted to Mr. S. Z. Ahmad. He is a local and was allotted this accommodation in his capacity as a Government servant on his transfer to Lahore from Karachi by the Estate Officer, Lahore, vide his Memo. No. 5278‑EO‑54/3938 dated 26th of October 1955. He is residing in this portion along with his wife. Mr. Abdul Hayee, a respondent in all the three writ petitions, is the father‑in‑law of Mr. S. Z. Ahmad. He is a claimant and applied on CH Form for the transfer of bungalow No. 2 to him on the strength of the possession of his daughter, Mrs. S. Z. Ahmad. He claims to be living in the bungalow along with his daughter and son‑in‑law. The whole of the upper storey of bungalow No. 2 was allotted to Mr. Ahmad Shah, another local in his capacity as a Government servant. He did not apply for the transfer of this property to him and was, therefore, rightly excluded by the Settlement Authorities. He is not directly in the picture. Bungalow No. 3 is in the possession of Begum Ali Muhammad, claimant‑allottee. She is residing in it since 5th of May 1948. She applied for the transfer of the entire property to her, on her C.H. Form on the ground that the whole of the house was indivisible and she being the senior-most allottee in possession, was entitled to it to the exclusion of all others.

4. The question of the transfer of this property was in the first instance taken up by Mr. S. A. Qayyum, Deputy Settlement Commissioner, Centre I, Lahore, who, by his order dated 2nd of January 1960, treated it as comprising of three independent houses. He transferred bungalow No. 1 to Mr. Abdul Hamid Ghani being a claimant‑allottee in possession. In addition to this he was given seven servant quarters and one garage attached to his bungalow, Bungalow No. 2, in which Agha Shaukat Ali, Mr. S. Z. Ahmad and Qazi Ahmad Shah were residing, was treated as one independent house and transferred to Agha Shaukat Ali along with eight servant quarters and four garages. The Deputy Settlement Commissioner excluded Sh. Abdul Hayee, the other contestant from the transfer on the ground that he cannot take advantage of the allotment to his son‑in‑law, Mr. S. Z. Ahmad, who is a local. He observed that Sh. Abdul Hayee submitted a CH Form for the transfer of this bungalow in the name of his daughter, Mrs. S. Z: Ahmad, in whose favour he had made a gift of his verified claim to the tune of Rs. 85,000, under Schedule

1. He expressed doubt about the validity of the alleged gift. He was not sure as to how Sh. Abdul Hayee was residing with his daughter in that house when he did not apply for his Compensation Book from that Centre. The learned Deputy Settlement Commissioner treated Bungalow No. 3 as another independent house and transferred it to Begum Ali Muhammad, as the allottee‑claimant. This transfer to her included six servant quarters and two garages as well. The swimming pool, the tube‑well and two quarters adjacent to it and the system of water supply from the tube‑well were allowed to remain common under the joint control of the three transferees of the property.

5. This order of the learned Deputy Settlement Commissioner gave rise to four appeals separately by Mr. Abdul Hamid Ghani, 13egum Ali Muhammad, Agha Shaukat Ali and Mr. Abdul Hayee before the Additional Settlement and Rehabilitation Commissioner, Lahore. It appears that all these four appeals did not come up together before the Additional Settlement and Rehabilitation Commissioner. The grievance of Mr. Abdul Hamid Ghani in his appeal was that the drive along the outer boundary wall of his Bungalow No. 1 should also be given to him exclusively as a part of the house transferred to him. But this appeal was dismissed by the learned Additional Settlement and Rehabilitation Commissioner on 26th of February 1960. As regards the appeal by Mr. Abdul Hayee, it was rejected by Lt. Col. J. D. Malik Additional Settlement and Rehabilitation Commissioner, Lahore Division II, Lahore, by his order dated 16th of March 1960 on the ground that the father‑in‑law, who was living with the family could not rely on the allotment to his son‑in‑law, Mr. S. Z. Ahmad, and the concession granted to the wife under the instructions of the Central Government to take advantage of the possession of her husband in claiming the transfer of the property, could not be extended to any of the relations of the wife to enable them to indirectly claim the property through her. The learned Additional Settlement and Rehabilitation Commissioner was of the opinion that Abdul Hayee had no locus standi to the transfer of the property. He, however, reserved his decision on the transfer of Bungalow No. 2 and observed that if, after enquiry, he found that the accommodation was being utilised by more than one families before Partition and the bungalow was divisible, the portion in the possession of Mr. S. Z. Ahmad may have to be reserved for ear‑marking. The decision on the appeal filed by Begum Ali Muhammad was also deferred to a future date by him to examine the connected records of the Corporation.

6. Dissatisfied with the orders passed by the Additional Settlement and Rehabilitation Commissioner against them, Mr. Abdul Hamid Ghani and Mr. Abdul Hayee both preferred separate revisions to the Settlement and Rehabilitation Commissioner. It appears that after the disposal of these two appeals the learned Additional Settlement and Rehabilitation Commissioner sent the file pertaining to this property to the Chief Settlement and Rehabilitation Commissioner by his letter No. A. S. R. C/11/3080 dated 27th of May 1960 with the recommendation that it should be dealt with under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. But the Chief Settlement and Rehabilitation Commissioner returned the papers to the Additional Settlement Commissioner, Lahore, with the direction that he should decide the case of this property as a whole and not piecemeal. Keeping in view this direction, Khan Farzand Ali Khan, Settlement and Rehabi litation Commissioner, Lahore Division, Lahore, on 1st of July 1961 accepted the two revisions and set aside all the orders passed by the Additional Settlement Commissioner in relation to this property and remanded the case back to Lt.‑Col. J. D. Malik, Additional Settlement and Rehabilitation Commissioner for a joint disposal of all the appeals before him afresh. After the remand, Mr. Abdul Hamid Ghani, Agha Shaukat Ali and Begum Ali Muhammad together put in a written deed of compromise agreeing to the details of the division of the three bungalows between them to the exclusion of Mr. Abdul Hayee. All the four appeals were later on transferred to Ch. Nasrullah Khan, Additional Settlement Commissioner (Judicial), Lahore, and were disposed of by him by a consolidated order dated 7th of July 1960. Following the decision by the Chief Settlement Commissioner in the case of one Mst. Saadat Begum, the mother in‑law of Dr. A. A. Khan, as a precedent, the learned Additional Settlement Commissioner (Judicial), Lahore, held that Abdul Hayee was entitled to the transfer of the property on his CH Form on the strength of the possession of his daughter, Mrs. S. Z. Ahmad and could indirectly derive the benefit from the allotment in the name of his son‑in‑law. In his opinion, both Mr. Abdul Hamid Ghani and Begum Ali Muhammad were in possession of portions of the property and were eligible for the transfer. He declined to give effect to the compromise between the three parties on the ground that they had refused to acknowledge the claim of Mr. Abdul Hayee, who was also entitled to a portion of the property in dispute. But according to the learned Additional Settlement Commissioner, the best course under the circumstances was to transfer the entire property to one of the four claimants by restricted auction among them as the entitlement of each of them appeared to him to be somewhat equal. He, therefore, set aside the order passed by the Deputy Settlement Commissioner and forwarded the case to the Chief Settlement and Rehabilitation Commissioner for necessary action under section 10 (b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. However, the learned Chief Settlement Commissioner did not approve of this recommendation and remanded the case back to the Additional Settlement and Rehabilitation Commissioner for decision of the appeals on the respective merits of the parties.

7. Meanwhile, Mst. Farkhanda Akhtar, the wife of Mr. Mahmud Khan Durrani (petitioner in Writ Petition No. 2472‑R of 1962) appeared on the scene and filed an application before the Chief Settlement Commissioner, Lahore, alleging that she is a refugee from Jammu & Kashmir State and her husband has a verified claim in respect of the property abandoned by him in the occupied territories of Jammu and Kashmir State, that in 1958 her husband proceeded to U. K. for further training and in his absence she remained confined to bed for a long time and was unable to file any forms for the transfer of the property occupied by her uncle Qazi Ahmad Shafi and her husband since 1956. She prayed for special permission to file a belated KCH Forms, as she had no other accommodation to live in. On this application the Chief Settlement and Rehabilitation Commissioner on 29th of November 1960, passed an order which is to the effect that he knew the family and the lady who was present before him and if there was no objection the application should be allowed. In making this application, Mst. Farkhanda Akhtar purported to act as the special attorney of Mr. Mahmud Khan Durrani. She also filed KCH Forms in the name of her husband asking for the condonation of the delay on which Pir Ahsanuddin, the then Chief Settlement and Rehabilitation Commissioner on 6th of December 1960 ordered that these forms may be attached to the original application made by Mrs. Farkhanda Akhtar which had been forwarded by him to the Settlement Commissioner (Policy) with his earlier order. Accordingly, these forms for the transfer of a portion of the property in dispute to Mr. Mahmud Khan Durrani were also forwarded to the Additional Settlement Commissioner.

8. Ultimately, Mr. S. Muhammad Azhar, Additional Settlement and Rehabilitation Commissioner (Judicial), Lahore, disposed of all the four appeals and the KCH Forms of Mahmud. Khan Durrani by a consolidated order dated 19th of March 1962. Before him the case of Mr. Durrani was conducted by his wife, Mst. Farkhanda Akhtar allegedly as his special attorney. Her case was that ever since July 1956 she along with her husband was living in a portion of the first floor of Bungalow No. 2 with Qazi Ahmad Shafi who was distantly related to them but their exact relationship with him was not disclosed. Qazi Ahmad Shafi is a local and the first floor of this bungalow was allotted to him as a Government servant. Mr. Durrani went away to U. K. for studies on 10th of August 1958 and in his absence his wife continued to occupy a portion of the first floor. They were displaced persons from Jammu & Kashmir and her husband was holding a verified claim of about Rs. 61,

000. In support of these allegations Mst. Farkhanda Akhtar also filed an affidavit on the 17th of March 1962 and claimed that the first floor along with the portico, the main entrance, the stairs and two servant quarters be transferred to Mr. Durrani on his KCH Forms. The learned Additional Settlement and Rehabilitation Commissioner, however, rejected his Forms on the grounds that Mst. Farkhanda Akhtar was not a duly appointed attorney or agent of her husband when she filed those KCH Forms sometimes in November 1960 after the property had already been transferred to the three claimants; that neither she nor her husband were the allottees of any portion of the house; that Mr. Durrani was admittedly not living there after the 10th of August 1958 and that the possession of his wife was denied by the respondents.. In any case her occupation was un-authorised and could not be deemed to be possession at all. She could at best be considered to be a guest of or a licensee from Qazi Ahmad Shafi, and, therefore, not entitled to the transfer of any portion of the property in which they had been living. It was further held by the learned Additional Settlement Commissioner that Mr. Durrani himself was not even in occupation of any portion of the house on or immediately before the 20th of December 1958. Accordingly his KCH Form was rejected. As regards the case of Sh. Abdul Hayee, the learned Additional Settlement Commissioner took notice of his pleas that his daughter, Mrs. S. Z. Ahmad was living in the half portion of the ground floor of bungalow No. 2 and her husband although a local was a regular allottee of that portion and that Abdul Hayee could take advantage of the possession of his daughter. Accordingly the half portion of the bungalow was transferred to him as an independent house on his CH Form on the basis of the possession of his daughter by the learned Additional Settlement and Rehabilitation Commissioner. In this ' connection, he adopted the reasoning advanced by his predecessor Ch. Nasrullah Khan an his order dated the 7th of July 1960 based as it was on a decision of the Chief Settlement and Rehabilitation Commissioner in the case of Dr. A. A. Khan v. W. Z. Ahmad. With these findings the learned Additional Settlement Commissioner proceeded to remark that the entire property has, therefore, to be divided among the four of its occupants, namely Mr. Abdul Hamid Ghani, the occupant of bungalow No. 1, Agha Shaukat Ali and Sh. Abdul Hayee, the occupants of bungalow No. 2 and Mrs. Ali Muhammad in possession of bungalow No.

3. In the course of the proceedings before him on 17th of March 1963, an application was filed by Sh. Abdul Hayee in which he gave up his claim to the transfer of the servants quarter or the garage while asking for the division of Bungalow No.

2. He took note of the fact that the entire property was constructed to accommodate a joint family. The learned Additional Settlement Commissioner proceeded to uphold the transfer of Bungalow No. 1 in possession of Mr. Abdul Hamid Ghani to him as an independent and entirely separate house along with some servant quarters and garage appurtenant to that bungalow. The tube‑well and the swimming pool located on the side of the portion transferred to Mr. Abdul Hamid Ghani was allowed to remain with him exclusively. He made suitable adjustments for the common use of the approach road to these bungalows. Mr. Abdul Hamid Ghani was thus given the portion marked ABCDEFGH on the plan (Exh. P. 1) with the Settlement Authorities. It was further directed that Mr. Ghani shall not stop the water supply, etc. to the other transferees of the houses for at least four months by which time they would make their arrangement for it. The learned Additional Settlement Commissioner noticed that there was a deal wall dividing Bungalows Nos. 2 and

3. This wall runs straight except at its two ends where there are rooms which are not in alignment‑with the straight line. The rooms to the west open towards Bungalow No. 3 and are in possession of Mrs. Ali Muhammad while the room and the kitchen on the eastern end open in Bungalow No. 2 and are in the possession of Mr. S. Z. Ahmad and Qazi Ahmad Shafi. The western room stood tr4nsferred to Mrs. Ali Muhammad, but she, wanted the kitchen and the other room on the east as well. The learned Additional Settlement and Rehabilitation Commissioner declined to accede to this request by her. Similarly, the portion of the lawn on the east facing Kashmir Road, which (vas claimed by Mrs. Ali Muhammad had, in the opinion of the Additional Settlement Commissioner, no direct connection with her bungalow. It was treated to be a part of Bungalow No. 2 and, therefore, her claim for its transfer to her was rejected: The Bungalow No. 3 delineated by the letters IJKLMNOP on the plan with the Settlement Department along with the common courtyard and the common passage to the servant quarters and open space falling towards the south of the line NOP was transferred to Mrs. Ali Muhammad. As regards Bungalow No. 2, the learned Additional Settlement and Rehabilitation Commissioner remarked that it was in the occupation of three persons, Agha Shaukat Ali, S. Z. Ahmad and Qazi Ahmad Shafi, a local who was not entitled to it. He observed that this bungalow was essentially built in two independent flats and could accommodate two families. The only difficulty was in respect of the portico, the main entrance, and the strair‑case. Two flights of the stair‑case were separate and independent. Only one flight in the middle was common. He has further remarked that this bungalow was easily and conveniently divisible into two independent units. He, therefore, divided it vertically into two independent portions giving the half of the ground floor in possession of Agha Shaukat Ali with the accommodation above it on the first floor along with half of the portico, the passage and stair‑case from the ground floor to the top floor to Agha Shaukat Ali. The whole of the lawn towards the north was also transferred to him. The remaining half of this Bungalow No. 2 from the ground floor to the sky including the half of the portico, the main entrance, and the stair‑case were transferred to Sh. Abdul Hayee along with the entire lawn situated on the east.

9. Agha Shaukat Ali, Mr. Mahmud Khan Durrani, Begum Ali Muhammad and Sh. Abdul Hayee, preferred four separate revisions against that order but these were dismissed by Sh. Muhammad Rafiq, Settlement and Rehabilitation Commissioner, Lahore, on 5th of September 1962, after spot inspection holding that there was no ground for him to interfere with the appellate order.

10. This has led to the above‑mentioned three writ petitions to this Court under Article 98 of the Constitution.

11. Writ Petition No. 2123 of 1962 by Agha Shaukat Ali is directed against Sh. Abdul Hayee to whom half of bungalow No. 2 was transferred. It is alleged in this writ petition that the proviso to para. 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, does not entitle Sh. Abdul Hayee, respondent, to the transfer of any portion of the property as it does riot bestow on him any right to the property on the basis of the possession of his son‑in‑law, Mr. S. Z. Ahmad. Neither Mr. Ahmad nor his wife were entitled to the transfer and Sh. Abdul Hayee, who claims indirectly through them can have no better rights to the property. At any rate, Abdul Hayee being an indirect 'claimant cannot successfully compete with Agha Shaukat Ali who is a claimant in possession in his own right. It is further alleged in this petition that Bungalow No. 2 is indivisible and could not be partitioned for the benefit of Sh. Abdul Hayee, respondent. Writ Petition No. 2472‑R of 1962 by Mr. Mahmud Khan Durrani has been filed in. this Court through his wife Mst. Farkhanda Akhtar, as his attorney. It is directed against Sh: Abdul Hayee and Agha Shaukat Ali respondents. The petitioner in this writ petition has asked for the transfer of the whole of the upper storey of Bungalow No. 2 which was in the allotment of Qazi Ahmad Shafi, to him in the alternative his claim is that, if the vertical division of the property made by the Settlement Authorities is allowed to stand the half portion which has been transferred to Sh. Abdul Hayee may be given to him in preference to the former. The petitioner has alleged that after his KCH Forms were accepted by the Chief Settlement Commissioner under his orders dated 27th of November 1960, and 6th of December 1960, the Additional Settlement Commissioner had no power or authority to go behind those orders. It is also alleged that Abdul Hayee, respondent, could not take any advantage of the allotment to his son‑in‑law, Mr. S. Z. Ahmad and the transfer to him was without lawful authority. It is further averred that the petitioner though not an allottee should be regarded as in undisputed possession of the portion in which he and his wife were living with Qazi Ahmad Shall prior to the 20th of December 1958. He' claims to be a displaced person from the occupied territories of Jammu and Kashmir State and eligible to the transfer in preference to respondent No.

1. Writ Petition No. 2824‑R of 1963 is by Begam Ali Muhammad to which the remaining three transferees have been impleaded as the respondents. Her case is that she is in prior possession of the property since 1948 and considering that all the three bungalows' are situated in one premises, the whole of it was liable to be transferred to her as a single indivisible house in preference to all others. She has also a grouse against the transfer of the tube‑well to Mr. Abdul Hamid Ghani to the exclusion of the remaining residents as according to her it was appurtenant to all the three bungalows for the common use of their residents. It is further averred that by virtue of the order of the Deputy Settlement Commissioner, two rooms and the portion of the front lawn facing the Kashmir Road had been transferred to her and Sh. Abdul Hayee not having preferred any appeal against it, the Additional Settlement and Rehabilitation Commissioner had no power or authority to take away this portion of the property from her and transfer it to Sh. Abdul Hayee, respondent. She has contested the locus standi of Sh. Abdul Hayee on the ground that he cannot take any advantage of the allotment of his son‑in‑law, Mr. S. Z. Ahmad.

12. It would be convenient to deal with the case of Mr. Mahmud Khan Durrani at first. As mentioned earlier, his wife Mst. Farkhanda Akhtar applied in November 1960 to the Chief Settlement Commissioner, Lahore, seeking his special permission to put in the belated KCH Forms on behalf of the petitioner. In this application she alleged that the property has been in possession of her uncle Qazi Ahmad Shafi and her husband Mahmud Khan Durrani since .1956 and that her husband proceeded to the United Kingdom in 1958 for further training. In his absence she made this application purporting to be his special attorney. On this application on 29th of November 1960, the learned Chief Settlement and Rehabilitation Commissioner gave the permission to her to file those forms if there was no objection. In due course her KCH Forms were forwarded to the Additional Settlement and Rehabilitation Commissioner for disposal. It is common ground that at the relevant time the first floor of Bungalow No. 2 was in the allotment of Qazi Ahmad Shaft in his capacity as Government servant. He himself is a local and has no claim to the transfer of this property which is worth more than Rs. 10,

000. Mr. Durrani and his wife Farkhanda Akhtar are his relatives, although their exam relationship has not been disclosed. It is alleged that they have been living with him since 1956, and on the 10th of August 1958, Mr. Durrani went abroad for studies but his wife remained behind living in the same house. Mr. Durrani is a claimant, displaced person from the occupied territories of Jammu and Kashmir with a verified claim of about Rs. 61,

000. Mr. S. Muhammad Azhar, the learned Additional Settlement Commissioner by his order dated 19th of March 1962 has held that Mst. Farkhanda Akhtar was not a duly appointed attorney or agent for her husband when she filed the KCH Forms sometime in November 1960 when the property had already been transferred to the other claimants. Mr.. Durrani is not the allottee of any portion of the bungalow and was not living in the house after the 6th of August 1958 and the occupation of his wife thereafter was denied by the other interested parties. In any case her occupation was unauthorised and so no possession at all. At best she could be considered to be a guest or a licensee of Qazi Ahmad Shafi, not eligible for the transfer of any portion of the property in which he or she was living. The learned Additional Settlement and Rehabilitation Commissioner has proceeded to remark that Mr. Durrani, therefore, cannot claim this house on the basis of the unauthorised occupation of his wife. He himself was not in possession of any portion of the house on or immediately before the 20th of December 1958. His KCH Form was, therefore, rejected. On revision by Mr. Durrani this order was affirmed by Sh. Muhammad Rafiq, Settlement and Rehabilitation Commissioner, Lahore on 5th of September 1962. Admittedly Mr. Ahmad Shafi was allotted the first floor of Bungalow No. 2 in his capacity as a Government servant. He was not competent to share his possession with anybody else, Mr. Durrani and his wife were related to him and both of them came to live with him. In the absence of any other indication on the record, the learned Additional Settlement and Rehabilitation Commissioner was fully justified in concluding that at best their stay in the premises was by the courtesy of Mr. Ahmad Shafi as his guests or as licensees under him. Their stay in the house cannot be considered to be independent and in their own right. Notwithstanding the fact that they began to live with Mr. Shafi in a portion of the premises, its possession continued to rest in him and was never surrendered in their favour. They cannot be deemed to have dominion of the house at all. On the face of it the nature and the extent of their hold on the premises in question was defeasible and not adequate so as to place them in its occupation in their own right. Having regard to the provisions of paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), they were not entitled to take any advantage of the possession of an allotment to Mr. Shafi even indirectly. The learned counsel for Mr. Durrani has relied on Notification No. F. 1. (27)/59‑GI dated 13th of October 1959, which is as follows:‑ "In exercise of the powers conferred by the second, proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to direct that a claimant, a non‑claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the 20th day of December 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the 21st day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that date . . . . . . ." By this Notification, the Central Government permitted claimants, non‑claimants displaced persons and locals who do not hold an allotment orders, but are in undisputed occupation of houses and shops since before 21st December 1958 to apply for the transfer of such houses and shops. But Mr. Durrani, not having dominion much less undisputed occupation of any portion of the premises, cannot take advantage of this Notification. The Notifi cation on the face of it shows that it is subject to the condition that there should be no other eligible person for the property in the field. The occupation‑of non‑allottees cannot be recognised in the presence of another person who may be entitled to the transfer o the property under the Act. We shall presently deal with the case of Sh. Abdul Hayee and assuming that Bungalow No. 2 is divisible, in his presence the alleged occupation by Mr. Durrani cannot be recognised and his case cannot receive any preference. The last contention advanced before us on behalf of Mr. Durrani is equally devoid of any force. Reliance has been placed on clause (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and it is argued that Mr. Durrani being a displaced person from the occupied territories of the State of Jammu & Kashmir, residing in Pakistan, the house in his possession could not be transferred under the provisions of the Act and his possession is not liable to be disturbed. In the first place, as dismissed above, Mr. Durrani has not been found to be in possession or even in the occupation of the house in dispute and, therefore, this provision will have no application to him. Moreover, by virtue of section 2 of the Displaced Persons Laws (Amendment) Ordinance (XIII of 1964) section 30 (5) has been altogether omitted with retrospective effect as if it has never been on the Statute book. No reliance can, therefore, be placed on this provision. The learned counsel, however, maintains that notwithstanding this amendment the position has not changed to any appreciable extent because of a 'corresponding provision in para. 19 of the Settlement Scheme No. IV which imposes a similar bar on the disposal of house and shops in possession of displaced persons from the Indian occupied territories of Jammu and Kashmir State to any person who is not a displaced person from those territorites. In our opinion by virtue of the aforementioned amendment in the Act, the corresponding provisions in para. 19 of the Scheme also stand repealed by implication. At any rate they have ceased to exist because of their inherent inconsistency with the Act as finally amended. Now the properties in the possession of displaced persons from Jammu and Kashmir are free to be dealt with in accordance with the Schedule and the Act.

13. It would be appropriate now to deal with the case about the transfer of the half portion of Bungalow No. 2 to Sh. Abdul Hayee, a respondent, in all the three writ petitions. The objection of the petitioners in all these writ petitions against the transfer to him is common. It has been strenuously contended on their behalf that the portion in dispute which has been transferred to Sh. Abdul Hayee under the impugned orders was admittedly in the allotment and possession of Mr. S. Z. Ahmad, a local, who is his son‑in‑law. It is argued that Mr. Ahmad as a local has no right to the transfer of the house which is worth more than Rs. 10,000, that his wife much less her father can have no better right to the transfer. It is further argued that under no circumstances Mr. Abdul Hayee can be permitted to derive any benefit from the constructive possession of his daughter Mrs. S. Z. Ahmad, who is living in the house with Mr. Ahmad as his wife and the possession of son‑in‑law cannot entire for the advantage of Mr. Hayee. Quite an interesting situation has arisen. This portion of the bungalow was allotted to Mr. S. Z. Ahmad in his capacity as a Government servant. He is a local and is not eligible for the transfer. Presumably his wife who has been all along living with him is also a local. However, Sh. Abdul Hayee is a displaced person holding a verified claim of Rs. 85,

000. Section 2(6) of the Act defines the term "possession" as follows:‑ "Possession" means possession obtained in pursuance of an order passed on or before the 20th day of December 1958. by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted , by the Central or Provincial Government: Provided . . . . . . . . . . . . ' . Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall, subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act." The Central Government in exercise of the powers conferred on it by the second proviso to clause (6) of section 2 issued Memo. No. 3223‑PI‑Reh‑60 dated the 7th of March ‑1960, which is reproduced on page 123 of the Manual of Settlement Law and Procedure (1960 Edition). It is as under':‑ "The Central Government has decided that where a house is in the possession of the husband in pursuance of the order passed on or before the 20th day of December 1958 by a competent authority, his wife, if staying with him, will be deemed to be in possession." Thus a house in the possession of the husband is to be "deemed to be in the possession" of the wife within the meaning of Section 2 (6) "for the purpose of the Act". It may be seen that by the fiction of this law, the wife is clothed with all the incidents of her personal "possession" for all the purposes of the Act. By virtue of this provision in the Act her possession is in no way subordinate. She is placed directly in the possession of the house under the Act without any intermediary by operation of this law. Her possession is good against every other person except her own husband. Para. 1 of the Schedule to the Act under which the house has been transferred' is as follows:‑ "

1. A house in possession of a claimant or a parent, son, daughter or spouse of the claimant, being a house which such parent, son, daughter or spouse does not claim under the provisions of the Schedule, and if there is more than one such house, then any one of the houses which the claimant desires to retain, shall be transferred to him at a price determined on evaluation basis . . . . ." Therefore, a house in possession of the daughter of a claimant which she does not claim under the provisions of the Schedule is liable to be transferred to the claimant at a price determined on evaluation basis. The combined effect of the above quoted two provisions is that not only Mrs. S. Z. Ahmad is deemed to‑be in possession for the purpose of the Act, Sh. Abdul Hayee can rely on possession of her daughter to be eligible for the transfer of the house as a claimant. So to say she acts as a conduit pipe for benefit of her father. It is contended on behalf of the petitioners that the benefit derived by Mrs. S. Z. Ahmad from the possession of her husband cannot be extended further sc as to be available for Sh. Abdul Hayee and that any other interpretation of the second proviso to section 2(6) of the ‑Act would in effect negative the intention and scope of the Schedule. It is, therefore, asserted that a strictly narrow interpretation ought to be placed on the deeming clause contained in the aforesaid proviso. In this connection, Mr. Fazal‑i‑Ghani the learned counsel for Begam Ali Muhammad, petitioner, has relied on Leitch v. Emmott (Inspector of Taxes) (1929 All E R 638) and in particular on the following observations of Saukey, L. J.: "I think that those words must be taken to refer to the particular circumstances which fall for determination in that case. Here we are in rather a different area. The word "deemed" introduces an artificial definition which, in my view, is only to be applied as long as the conditions exist to which it is intended to apply. There is some authority for that in the judgment of James, L. J. In re : Levy, Ex parte Walton (17 Ch. D at p. 756): 'When a Statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to." There can be no exception to this enunciation of the law. But there is nothing in the whole of the Act to suggest that the concession which has been granted to the wife under the proviso does not extend any further. In fact by virtue of the artificial definition she has to be deemed to be in possession for the purposes of the whole of the Act. Likewise the other authority cited by the learned counsel, Commissioner of Income‑tax, Bombay v. Bombay Trust Corpora tion (AIR 1930 P C 54) does not advance his case any further. This merely lays down that "when a person is "deemed to be" something the only meaning possible is that whereas he is not in reality that something the Act of the Parliament requires him to be as if he were." To us it appears that the Court in looking at the deeming clause has to give effect to the real scope of the legal fiction without any prejudices. In the first instance, the Court has got to determine the limits within which and .the purposes for which the Legislature has created the fiction. This has to be determined by reference to the words used in the statute creating the fiction and full effect must be given to their natural meanings unless by doing so the very purpose of ‑creating the fiction is defeated. We have to consider the fiction and not the facts. In doing so, unless the context prohibits, all the necessary consequences and incidents which naturally flow as corollaries from the fiction are to be recognised and carried to their logical conclusions. We cannot lose sight of the following classic observations of Lord Asquith in East End Dwelling Company Ltd. v. Finsbury Barough Council ((1952) A C 109) in this connection: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if inevitably have floated from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." In Commissioner of Income‑tax v. Teju Singh (A I R 1959 S C 352) which was a case under the Indian Income‑tax Act, 1922, the Supreme Court of India relying on the above quoted passage, has remarked that the legal fiction that the failure to send an estimate is to be deemed to be a failure to send a return necessarily involves the fiction that a notice had been issued under section 22 and that had not been complied with. It is a rule of interpretation well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate. The significance of such a provision was also considered by the Supreme Court of India in the case of State, of Bombay v. Pandurang Vinayuk (AIR 1953 SC 244). There it was held that when a statute enacts that something shall be de6med to be, which it is not, the Court is bound to give full effect to the statutory fiction and it would be carried to its logical conclusion. The result of this discussion is that not only the possession of the husband is to be deemed to be the possession of the wife in accordance with the second proviso to clause (c) of section 2 of the Act, her artificial possession is to be recognised for the purpose of the whole of the Act and the only logical conclusion flowing from that state of affairs is that by reason of they application of para. 1 of the Schedule, the concession shall stand extended to her father and her other relations mentioneo therein. Consequently. Sh. Abdul Hayee can take full advantage of the fictional possession of her daughter, Mrs. S. Z. Ahmad. It is to be noticed that she was put into possession of the property t directly by this fiction of law under the Act.

14. At the time of the arguments, the plea of Begam Muhammad Ali that the entire property forms a single indivisible unit to which she was entitled as a senior most allottee, was not even pressed before us. During the course of the proceedings before the Settlement Authorities, she herself agreed to divide the property with the other two claimants to the exclusion of Sh. Abdul Hayee. According to the Settlement Authorities, this property is comprised of at least three independent bungalows. Bungalow No. 1 is separate and distinct from the main block. Bungalows Nos. 2 and 3 are already divided by the dead wall intervening between them. There is thus no force in claim of Begam Ali Muhammad to the transfer of the whole of this property to the exclusion of all others. On behalf of Agha Shoukat Ali, petitioner in Writ Petition No. 2123 of 1962, it is contended that Bungalow No. 2 is an indivisible single unit and could not be subdivided into the two half portions in order to accommodate Sh. Abdul Hayee who was at best indirectly in possession of a portion through his daughter, Mrs. S. Z. Ahmad. Mr. S. Muhammad Azhar the learned Additional Settlement and Rehabilitation Commissioner, Judicial, Lahore, in his order dated 19th of March 1962, has examined this aspect of the case fully. According to him Bungalow No. 2 has been in the occupation of three persons, Agha Shaukat Ali, Mrs. S. Z. Ahmad and Qazi Ahmad Shafi. The Bungalow is essentially built in two independent flats and can accommodate two families. It is easily and conveniently divisible into two independent units and there was no reason why it should be transferred to one person only. The mere fact that the portion, the main entrance and a part of the spacious stairs for access to the upper storey was common, was not considered to be a sufficient reason to treat ix as an indivisible unit. These findings have been upheld on revision by Sh. Muhammad Rafiq, Settlement and Rehabilitation Commissioner. This division was made in the exercise .of the powers vested in the Settlement Authorities under section 2 (4) of the Act. There is no error apparent on the face of the record in these findings, and we see no reason to interfere with the t impugned orders on this ground. Therefore, Bungalow No. 2 is to be treated as comprised of two distinct houses. Agha Shaukat Ali, petitioner, cannot have more than one house and should be satisfied with the transfer of the house in his possession: For that reason he has no locus standi to object to the transfer of the other house to Sh. Abdul Hayee Similarly, Begam Ali Muhammad having already got Bungalow No. 3, cannot lay any claim to any portion of Bungalow No. 2,

15. We are now left to examine the last remaining contention of Begam Ali Muhammad. 1t has been argued for her that there was no justification in the order of the learned Additional Settlement and Rehabilitation Commissioner dated 19th of March 1962 to have transferred the two rooms and a portion of the front lawn facing the Kashmir Road to Sh. Abdul Hayee It is averred that the Deputy Settlement Commissioner had divided the three bungalows and transferred the two rooms in dispute one on the top of the other to her as a part of the bungalow given to her. Sh. Abdul Hayee did not file any appeal against her and consequently the learned Additional Settlement and Rehabilitation Commissioner had no jurisdiction in appeal to take away that portion of the house from her and give it to Sh. Abdul Hayee. This argument is misconceived. There is nothing in the order passed on 2nd of January 1960 by Mr. S. A. Qayyum, Deputy Settlement Commissioner, Centre 1, Lahore, to show that the two rooms and .a portion of the lawn towards the Kashmir Road were transferred to Begam Ali Muhammad as a part and parcel of Bungalow No.

3. According to that order Bungalow No. 3 in the independent occupation of Begam Ali Muhammad was transferred to her. It appears that in the copy of the plan given to her, the two rooms were included in her portion without an order to that effect. At any rate, Agha Shaukat Ali had filed the appeal against Begam any rate, Muhammad against the decision of the Deputy Settlement Commissioner on the ground that two rooms in question formed a part of Bungalow No. 2 and not of Bungalow No. 3 transferred to her. Ultimately, Mr. S. Muhammad Azhar, the learned Additional Settlement Commissioner found that there is a dead wall dividing Bungalow Nor. 2 from Bungalow No. 3 is straight except at the two ends. The rooms, in the one end are not in a straight line with this wall. They open in Bungalow No. 2 and are in possession of Mr. S. Z. Qazi Ahmad Shafi the two occupants of that bungalow. Similarly, the portion of the lawn in dispute towards the Kashmir Road is quite separate and has no direct connection with Bungalow No.‑3 and forms a part of Bungalow No.

2. For these, good reasons, the learned Additional Settlement and Rehabilitation Commissioner refused to treat the two rooms and the portion of the lawn in dispute as a part of Bungalow No. 3 transferred to Mrs. Ali Muhammad. . Her claim for this portion, of the property was rightly repelled. No other point was pressed before us by any of the parties.

16. In the result, all the three writ petitions must fail and are dismissed. However, the parties are left to bear their costs in this Court under the circumstances of the case. K. B. A. Petition dismissed.