1987 PLP 594 (SCMR)

Respondents Nos. 1 to 3: Ex parte. A.A. Dastgir, Advocate‑on‑Record for Respondent No.4. Date of hearing: 28th August, 1986. MUHAMMAD HALEEM, .J.‑‑ This appeal arises from the judgment of the High Court of Sind Karachi dated 19th of December, 1978, whereby Letters Patent Appeal No.180 of 1968 was dismissed. Leave to appeal was granted to consider whether the contesting respondent was rightly transferred the entire unit when his request was confined to the transfer of a room only. The dispute relates to the transfer of a house comprised of two rooms in the property bearing No.C/2864 situate near Khaki Shah Ka Pir, Hyderabad. Apart from this unit there are other 11 units in the property which stand transferred to their respective occupants. Abdur Rehman, respondent herein, applied for the transfer of the room in his possession on C . H . form, while the appellant also applied for the transfer of the room in his possession, but it appears that both the rooms were transferred to Abdur Rehman. Despite the transfer, this unit was auctioned which was later cancelled by the Additional Settlement Commissioner, Hyderabad, who on spot inspection also noted that the appellant was in possession of one of the rooms and observed that this unit comprised of two residential houses. The appellant moved the Settlement Commissioner against the transfer of the whole house. The Settlement Commissioner remanded the case to the Deputy Settlement Commissioner for the determination of his entitlement in accordance with law. On remand the Deputy Settlement Commissioner inspected the spot and observed: "It was evident from spot inspection' that the house consists of two rooms having a solitary entrance, with only one set of amenities of life viz. Kitchen, Bath and Latrine. Therefore, if the amenities go with one room, the other room, is left without them and then it can be termed as a house meaning thereby that the house can be transferred to one party and is not capable of division in such a way so that the two portions may be termed as separate independent residential units." Having so held, he was of the opinion that the two units comprised one unit and that it could only be transferred to one of them. He preferred the contesting respondent as he was the claimant and transferred the unit to him by order dated 30th of July, 1966. This order was confirmed in appeal and revision. Being aggrieved the appellant invoked the writ jurisdiction of the High Court, but did not succeed as the learned Single Judge dismissed the petition in limine by order dated 24th of May, 1968. The High Court was influenced by two considerations: firstly; that the unit was not divisible; and, secondly, that the contesting respondent had a preferential right to the transfer of the property being a claimant, and that these findings being of fact could not be interfered with in writ jurisdiction. The Letters Patent Appeal against this order also failed as it was dismissed by order dated 19th of December, 1978. The appellant did agitate the question that the contesting respondent was in the occupation of only one room and hence he was not entitled to the transfer of the house as one unit, but the Letters Patent Bench held that this contention has no substance as the unit could be transferred to only one person and that too to one who has the preferential claim. (See proviso 1 to para. 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. We do not see any illegality in the order as the disputed unit was indivisible and the contesting respondent was rightly determined to be entitled to the transfer of the whole unit. The appeal fails, and is dismissed, but with no order as to costs. M.I. /N‑4/S Appeal dismissed