1986 PLP 545 (MLD)

ABDUL SHAKURUL SALAM, J.‑‑The dispute relates to a. portion of an evacuee premises known as Sohen Lal Building situate in Gurdial Singh Street, Dhobi Mandi, Old Anarkali, Lahore. Vide order, dated 12‑1‑1960, the Deputy Settlement Commissioner transferred the entire portion as a house in favour of Ch. Bhoora (predecessor‑in‑interest of the appellants) being a claimant allottee ignoring Chiragh Din, although a claimant on the grounds that the later was not an allottee and was in possession of one room only. Chiragh Din and Khuda Bux filed an appeal praying for division of the house and transfer in accordance with the possession of the appellants and respondents. The Additional Settlement Commissioner accepting the appeal divided the property into three portions and transferred the same to the appellants, another Abdul Rashid and Ch. Bhoora, vide order, dated‑ 24‑6‑1960. On a revision by Ch. Bhoora, the learned Settlement Commissioner remanded the case, vide order, dated 7‑12‑1960. In the remand proceedings, the Additional Settlement Commissioner finding the property to be indivisible transferred it in its entirety in favour of Ch Bhoora being a claimant allottee excluding Chiragh Din although a claimant but non‑allottee, vide order, dated 23‑12‑1960. Chiragh Din filed a revision petition. The learned Settlement Commissioner, vide order, dated 7‑2‑1962, observed that the portions of Abdul Majid and Chiragh were not independent and did not have the usual amenities like kitchen, bathroom, latrine etc. Finally, he held that Chiragh was a non‑claimant although he had put in a C.H. Form and was in possession of only one room on the second floor He upheld the order passed on appeal by the Additional Settlement Commissioner, with the result that the entire house remained transferred to Ch. Bhoora. Chiragh Din filed a Writ Petition No.745/R/62 and the learned Single Judge found that the learned Settlement Commissioner was in error in holding that Chiragh Din was a non‑claimant displaced person as he had a verified claim and had been issued a Compensation Book. As regards the crucial controversy between Chiragh Din and Ch. Bhoora, the learned Judge observed: "that the petitioner Chiragh appears entitled to preference for the reason that he was claiming directly on the basis of his own possession, whereas Ch. Bhoora was claiming the property on the basis of the possession of his son Muhammad Rafique". Therefore, the learned Single Judge accepted the petition, set aside the orders of the Settlement Authorities, directed that the house in question be transferred in its entirety to the petitioner Chiragh Din being a claimant in possession. This is, vide order, dated 2‑10‑1970. Ch. Bhoora in the meanwhile died. His legal representatives have filed the aforetitled appeal.

2. Learned counsel for the appellants contended that Ch. Bhoora was not an indirect claimant claiming on the basis of tote possession of his son but was himself in possession though his son' was an allottee. This aspect of the case has been omitted from consideration by the learned Single Judge. Both Ch. Bhoora and Chiragh Din had to be considered as direct claimants for transfer of the property. Reliance was placed on Muhammad Tufail (Represented by 4 heirs) v. Chief Settlement and Rehabilitation Commissioner and another P L D 1971 Lah.

257. Ch. Bhoora being prior in possession would be entitled to preference as against the respondent‑‑the house having been found to be indivisible by the Settlement Authorities. It was, secondly, contended that right from the beginning when Chiragh Din filed the first appeal before the Additional Settlement Commissioner (Annexure‑G) against Ch. Bhoora, he had been saying that the property was divisible, therefore, the portion in possession of Ch. Bhoora could not be given to him because nobody can be transferred what he had not asked for. Therefore, the order of the learned Single Judge transferring the whole house to him including the portion of which Ch. Bhoora was in possession is erroneous.

3. Learned counsel appearing for the deceased‑respondent Chiragh Din has submitted that Ch. Bhoora cannot be considered as a direct claimant in possession because the house was in the allotment of his son and he himself was an allottee of another house in Sillanwala, District Sargodha which he got transferred in favour of his own son‑in‑law. Secondly, he submitted that the case of Ch. Bhoora all through has been that the house was indivisible and that he was entitled to preference. It was submitted that he having no preferential right, the house was rightly transferred in its entirety to Chiragh Din notwithstanding that he had earlier stated in his grounds of appeal before the learned Additional Settlement Commissioner that the house was "easily divisible"

4. We have heard the learned counsel for the parties at length. There is much ado about nothing. Both Ch. Bhoora and Chiragh Din were claimants displaced persons. Ch. Bhoora was in possession of a distinct clearly divided portion per map annexed by Chiragh Din in his writ petition as Annexure 'G'. Right from the beginning of the first appeal before the Additional Settlement Commissioner to the filing of the writ petition, Chiragh Din has been saying that the house was easily divisible meaning thereby that the portion in possession' of Ch. Bhoora should go to him but not the other portion in part of which he was in possession. He cannot go back on his solemn stand. Both Ch. Bhoora and Chiragh Din were claimants displaced persons. Both were entitled to settlement. Neither was entitled to exclude another. Ch. Bhoora could not claim transfer of the house in its entirety in a manner that he could exclude another claimant displaced person in possession of a portion over which he himself was not in possession. Nor could Chiragh Din, do so, having give up his claim in respect of the portion in possession of Ch. Bhoora. Neither needed to be thrown out on the road nor lose their claim. Therefore, the just and the legal order in accordance with the relevant law and its spirit was that Ch. Bhoora be transferred the portion in his possession and the other to Chiragh Din. Therefore, the order of the learned Single Judge is modified to the extent that the portion of the property in dispute in possession of Ch. Bhoora shall be transferred to him and the other portion to Chiragh Din. Both having died, their respective rights shall vest in their heirs. The appeal is accordingly allowed, leaving the parties to share‑the costs amongst themselves as they have shared the property. A . A . ???????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.