1975 PLP 238 (SCMR)

MUHAMMAD GUL, J.‑This appeal by special leave is against the judgment dated 4‑3‑1965 of a Division Bench of the late High Court of West Pakistan, at Lahore, in L. P. A. No. 211 of 1964, remanding the case relating to the transfer of a house under Act XXVII of 1958, to the Chief Settlement Commissioner for causing an inquiry to be made on certain questions of fact arising in the case. The dispute relates to half portion of property No. SE‑33‑R‑VII‑B, also described as 47‑Montgomery Road, Lahore, Syed Muhammad Zaki, appellant No. 1, and a claimant and his nephew Syed Shafqat Ali, a non -claimant filed separate CH and NCH forms respectively, for the transfer of the property in dispute on the basis of their respective possession as allottees since 1‑1‑1948, of different parts on the first floor of the house. Similarly Maqsood Ali Khan, a claimant since deceased, now represented by tile respondents also filed a CH form for the transfer of the portion in his possession en tike bans of his possession of the ground floor and the basement as allottee, from 10‑1‑1953. The Deputy Settlement Commissioner by order dated 3‑d‑1960, rejected the two forms filed by the appellants and transferred the house in dispute to Maqsood Ali Khan, on account of his being a claimant for a much larger sum than appellant No. 1, and also being in possession of a major portion of the house in dispute. The Deputy Settlement Commissioner also held the property to be indivisible. An appeal filed by the two appellants was dismissed on 27‑2‑1960, by the Additional Settlement Commissioner, who concurred with the Deputy Settlement Commissioner that Maqsood Ali Khan Iii o, u claimant for the sum of Rs. 55,000, as against appellant No claimant for a sum of Rs. 9,600, had preferential claim for the transfer of the property, the value of which was assessed to be Rs. 33,

00. This was not the priority of possession of the two The learned Additional Settlement Commissioner was of the vies, possession, though one of the governing factors for the relevant purpose was by no means conclusive. Another point taken by the two appellants herein, was that Maqsood Ali Khan having participated in ear‑marking Scheme by filing 'E' form was disqualified for the transfer of the house in dispute under Scheme No. 1, was also repelled on the ground that this "offence is not at all serious". Against the above order of the Additional Settlement Commissioner, a revision filed by the appellants was accepted by the Settlement Com missioner, by order dated 12‑5‑1960. The learned Settlement Commissioner took the view that the two appellants being allottees in possession with effect from 1‑1‑1948, were entitled to the transfer of the property in dispute as against ‑the deceased respondent who though a claimant allottee in posses sion entered into possession from a later date. The deceased respondent filed a further revision before the Chief Settlement Commissioner, which was dismissed on 7‑7‑1962, by the following short order : "Parties present with counsel. 'Heard. Records examined. No ground. Dismissed." It may be pointed out at this stage that for the first time, Maqsood Ali Khan raised the plea before the Chief Settlement Commissioner that the allotment order dated 1‑1‑1948 relied upon by the two appellants was fictitious. Priority of their possession was also disputed. Maqsood Ali Khan, challenged the above order of the Chief Settlement Commissioner by Writ Petition No. 165‑R of 1962, which came up for hearing before a learned Single Judge of the High Court, which was dismissed by order dated 30‑1‑1364. It appears from the judgment of the learned Single Judge that the main controversy centered round the genuineness or otherwise of the allotment order dated 1‑1‑1948, relied upon by the two appellants herein (respondents in the writ petition). According to Maqsood Ali Khan, it was a forgery, in that, it did not bear the signatures of one Dr. Muhammad Iqbal, who purported to have signed it as Rehabilitation Officer. In the course of arguments, it trans pired that the same gentleman was later enrolled as an Advocate of the High Court on 6‑12‑1964, but had died in the meantime. The learned Single Judge sent for the file relating to the enrolment of Dr. Muhammad Iqbal with a view to comparing his signatures on the application for his 'enrollment with his disputed signatures on the allotment order. After a visual comparison of the two signatures by the learned Single Judge, he took the view that the two signatures were of the same person. Learned counsel appearing for Maqsood Ali Khan and the Settlement Department also sup ported the view formed by the learned Single Judge. Thus on the basis of visual examination of the disputed document carried out in the Court, the writ petition filed by Maqsood Ali Khan was dismissed. In the Letters Patent Appeal filed by Maqsood Ali Khan, the Division Bench did not agree with the conclusion of the learned Single Judge on the question of genuineness of the allotment order in favour of the two appellants herein. The learned Judges of the Division Bench sent for the rehabilitation file and after its examination came to the conclusion that there were certain features in the case which were over looked by the learned Single Judge. On a visual examination of the original allotment order dated 1‑1‑1948, it appeared to the learned Judges that the signatures of Dr. Muhammad Iqbal on the allotment order in red ink were over‑written on the signatures traced either in pencil or black ink. On closer examination the signatures in red ink appeared to be spread out and the strokes appeared to the learned Judges to be retarded. They also noted indications of erasure in the region of the signatures. Besides, the learned Judges also noticed that the two copies of the allotment order separately filed by the two appellants herein, with their CH and NCH forms, materially differed from each other and further that Shafqat Ali. appellant No. 2 alleged to have been in possession of a room on the first floor, his name did not appear in the survey register. Impressed by these circumstances, the learned Judges, accepted the appeal, set aside the order of the Chief Settlement Commissioner dated 7‑7‑1962, and remanded the case to him with the direction to cause an inquiry to be held into the genuineness or otherwise of the allotment order dated 1‑1‑1948, upon which the two appellants based their respective claims for the transfer of the property in dispute. The learned Judges concluded their order by the following observation:‑ "In case the allotment order is found to be genuine, the claim of the respondents (the appellants herein) to the transfer of the house should be upheld, but if it is not so, the transfer in their favour will be not sustainable because they cannot deem to be in prior possession of the house within the purview of the notification dated the 13th October, 1959 . . . . . Leave to appeal was granted to consider among others, the question whether the underlined* portion of the order of the Letters Patent Bench being in conflict with a Full Bench decision of the High Court, in Mst. Noor Jahan Begum v. The Settlement and Rehabilitation Commissioner, Karachi etc. (P L D 1963 Kar. 709), can be sustained? Since the leave granting order, the dictum in the case of Nur Jahan Begum was armed by this Court in a number of cases viz., Barkat Ali v. Muhammad Sharif and another (P L D 1966 S C 817). Abdul Majid Shaida v. Mst. Moor Jahan and another (P L D 1967 S C 221) and Khurshid Ahmad v. The Settlement and Rehabilita tion Commissioner and another (P L D 1971 S C 498). The result is that it is now firmly established proposition that as between the two rival claimants for the transfer of a property under Act XXVIII of 1958, the one who is in its "undisputed occupation" within the meaning of notification dated the 13th October 1959, from a prior date in point of time will have preference over the other party who had entered into possession of the property under an allotment order, but on a later date. In other words, under the said notification, for the relevant purpose, all distinc tion between an allottee and a non‑allottee who is in undisputed possession has been abolished, to all intents and purposes, and the matter falls to be governed by the priority of undisputed possession. This is a declaration of law by this Court, which is binding on all Courts in Pakistan. Nothing further need be said on this point. Learned counsel for the appellants, Mr. Saeed Akhtar, however, argued that since the prior possession of the two appellants was never questioned by Maqsood Ali Khan, the two appellants are entitled to the transfer of the property in dispute on the basis of the dicta in the precedent cases noticed above. In that behalf he also referred to the implied admission In paragraph 1(G) in the grounds of second revision petition filed by Maqsood Ali Khan, in which he pleaded "surrender" of allotment by Shafqat Ali appellant No. 2, on the allotment of another house to him in Gojra on his transfer to that place. Reliance was also placed on the copy of the survey register in which Muhammad Zaki appellant No. 1 is shown in possession of four rooms and a gallery on the first floor since 1-1-1948. Accordingly, it was urged by learned counsel for the appellants that the dispute relating to the transfer of the property can effectively be determined on the record of the appeal thus obviating the necessity of the remand of the case. There is substance in the argument. From the copy of the survey list in form 24, there again Muhammad Zaki appellant No. 1 is shown in occupation of a part of the house in dispute since 1‑1‑1948. In another portion of the first floor, one Farzand Ali son of Ashiq Ali is shown to be in possession. He is presumably a brother of appellant No. 2 For the purpose of the aforesaid notification, indirect occupation through a brother is unavailing under paragraph 1 of the Schedule to the Act. However, that may be, the fact remains that Muhammad Zaki has been in undisputed possession of four rooms in the house in dispute since January 1948 This position had not been questioned by the predecessor -in‑interest of the respondents in the multiple proceedings initiated by him from time to time. It was only in the second revision before the Chief Settlement Commissioner that he questioned the factum of undisputed possession by Shafqat Ali, because of his transfer to Gojra. But that per se is not of any consequence for Shafqat Ali is a non‑claimant in possession of just one room in the first floor and there is no conflict of interest between him and Muhammad Zaki. On the other hand, as pointed out already. Maqsood Ali Khan had applied only for the transfer of the portion in his possession but the Deputy Settlement Commissioner had declared the house in dispute, indivisible. This aspect of the matter was not agitated further. On that view of the matter, in my humble opinion, no useful purpose will he served to inquire into the genuineness or otherwise of the allotment order dated 1‑1‑1948, in favour of the two appellants herein, for the undisputed occupation of four rooms and gallery by Muhammad Zaki, appellant, who is a claimant and bas filed his form for the transfer of the entire house in dispute, stands sufficiently established aliunde. Incidentally, it may also be mentioned that about the genuineness of the allotment order in their favour, the position taken on behalf of the two appellants before the learned Judges of the Letters Patent Bench was that the interpolations and erasures noticed by them took place after the decision by the learned Single Judge in chambers. That this is not entirely without substance is demonstrated by the fact that the original allotment was subjected to close scrutiny during the hearing of the writ petition and counsel for Maqsood Ali Khan and the Settlement Department as also the learned Single Judge did not discover any interpolation in the signature of the Rehabilitation Officer on the original allotment form. Be that as it may, as pointed out already, the determining factor is the priority of possession between the two contestants and the fact that the possession of four rooms by Muhammad Zaki is prior in point of time, does not admit of any doubt. Finally, it is clear from the concluding paragraph of the order of the Additional Settlement Commissioner, dated 7‑2‑1960 that it was not disputed before him that Maqsood Ali Khan had filed form E for participation in earmarking scheme. That at once rendered him ineligible to compete for the transfer of the house in dispute under Scheme No. I. See Asghar Hussain v. Dr. A. H. Musa (1968 SCMR475) and Azizur Rehman v. Mst. Habib Bano (PLD1972SC52). For the foregoing reasons, I would accept this appeal, set aide the order of the learned Judges of the Letters Patent Bench and restore that of the learned Single Judge dated 30‑1‑1964, to Writ Petition No. 1652‑R of 1962. However, I leave the parties to bear their own costs. Appeal accepted.