P L D 1967 Lahore 607 (PLP)

CHAUHAN, J.‑‑The dispute in this case is about House No B,II‑S‑I./15 situated in Chuharkana Mandi, District Sheikhupura. It was in occupation of the petitioner as well as respondent No.

1. During the course of the settlement operations, the D. S. C., by means of his order, dated the 30th of December 1959, divided it into two portions giving one to the petitioner and the other to respondent No.

1. Both parties filed appeals which were accepted by the Additional S. C., who by means of his order, dated the 24th of May 1960 (Annexure A) modified the transfer so as to be in accordance with the portion in possession of each party. As a result of this modification, the petitioner was able to get eight rooms and respondent No. 1 got only one room. Respondent No. 1 filed a revision petition which was accepted by Khan Farzand Ali Khan, Settlement Commissioner by means of his order, dated the 21st of January 1961 (Annexure B) whereby he transferred the whole of this house to respondent No. 1 and eliminated the petitioner altogether. The petitioner filed a second revision, which was dismissed by Malik Fateh Khan; C. S. C., on the 27th of February 1961 (Annexure C) holding that the respondent was a senior allottee and as such preferable to the petitioner. The petitioner has come up in writ petition against the aforesaid orders of the Settlement Authorities.

2. Before entering into a discussion of the various points raised by the learned counsel for the parties, it is necessary to give details of their possession and allotments. These are as follows:‑ S. No. Name Date of Date of possession allotment 1 Muhammad Hayat husband of 1‑4‑1949 6‑11‑1951 the petitioner. 2 Abdul Ghani respondent 1‑4‑1950 2/3‑11‑1951 No. 1.

3. The S. C. and the C. S. C., who rejected the claim of the petitioner gave two reasons in support of their orders. Firstly, that the petitioner was an indirect claimant through her husband, while the respondent was a direct allottee, and, as such, the respondent should have preference over the petitioners. Secondly, that the deciding factor in this case was the date of allotment which in the case of the respondent was 2/3‑11‑1951 and from that point of view also, the respondent was preferable to the petitioner.

4. As regards the first reason that the petitioner was an indirect claimant, it may be stated that this is not wholly correct. Even though the allotment is in the name of the husband, the wife (petitioner) would be deemed to be in possession in her own right by means of the order of the Central Government dated the 7th of March 1960, as printed at page 123 of the Settlement Manual (Old Edition), which lays down that when a husband is in possession in pursuance of an order passed on or before 20‑12‑1958, by a competent authority, then his wife, if staying with him, will also be deemed to be in possession. In this way, the wife becomes a direct claimant and cannot be said to be an indirect applicant. Reference can also be made to Agha Shaukat All v. S. & R. C. Lahore and another (P L D 1965 Lah. 445) for this proposition. The approach of the S. C. and the C. S. C., in considering the petitioner as an indirect applicant is, therefore, illegal so far as this aspect of the case is concerned. It may, however, be made clear that this is the position if the case is to be approached from the point of view of allotment. Of course, if the case is to be approached from the point of view of un authorised occupation, then in that event if the wife claims through husbands, she will be an indirect applicant, because the Central Government order dated 7‑3‑1960 covers cases of wives of those husbands who are allottees or in other words "authorised occupants". We will examine the effect of this difference in the later part of this judgment.

5. As regards the second reason that the deciding factor is the date of allotment, this again is not correct. Possession (so far as relevant for the purposes of the present case) can be stated to be of two kinds. One is that which is given in t section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) hereinafter called the Act), and reads as follows:‑ "2(6) `possession' means possession obtained in pursuance of an order passed on or before the twentieth 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 that if a question arises whether an officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final:" "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 second kind of possession is that which is contained in the Notification of the Central Government, dated the 13th o1 October 1959, which runs as follows: "No. F. I., (27)59‑SI, 13th October 1959 (Gazette, Extra ordinary, 26th October 1959).‑In exercise of powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 195b), the Central Government is pleased to direct that a claimant, a non‑claimant displaced person or a local who hits not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth 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 twenty‑first 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 day:" "Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation and, if he is a claimant, such amount is adjusted against his claim." Our view is that it is open to a party to rely upon the statutory definition of possession as given in section 2 (6) of the Act or to rely upon its amplified definition as given in the Notification, dated the 13th of October 1959. If a person relies upon the statutory definition, then his date of possession will be the date of his allotment (if he is already in possession), or the date when subsequent thereto under the allotment order he obtains possession. In this way, he cannot tack to his allotment, the period of his unauthorised possession because that earlier possession was not a possession obtained in pursuance of an order. The word "obtained" means that which is obtained as a e result of effort and active endeavour. The phrase "in pursuance of" means under the (allotment) order. The possession, according to the statutory sense is that which is to follow the (allotment) order and not to precede it. It contemplates that there should first be an (allotment) order and then a person should obtain possession thereunder. Moreover, the phrase used by the Legislature in section 2 (6) is possession "obtained" and not "retained". This also goes to suggest that it is possession onward from the date of (allotment) order which is contemplated by law and not any earlier other type of possession.

6. On the other band, if a person wants to rely upon the amplified definition of possession, as given in the Notification, dated 13‑10‑1959 (which is sometimes called as unauthorised possession) then be can count his possession right ‑from the o date when he un-authorisedly entered into possession. In that case, however, he will have to bring his case within the four corners of the said notification and fulfil its conditions. These conditions are :‑ (a) That the possession should be undisputed; (b) That there should be no other person who is allottee of the whole house and is in this way preferable to him in the matter of claiming transfer. (c) That he has paid the arrears of rent or got it adjusted as laid down in the said notification.

7. Analysing the above principles with reference to the facts and the circumstances of the present case, the position comes to this:‑ (i) That if counted from the point of view of allotment, as contemplated in section 2(6) of the Act, the petitioner's date of possession will be the date of the allotment order, which as held by the Settlement Authorities is 6‑11‑1951. As against her, the date of allotment of respondent No.1 is 2/3‑I1‑1951 and be is, therefore, prior in possession. The petitioner, it will thus appear cannot score against the respondent. (ii) If the petitioner does not wish to rely upon the possession under the allotment order, but on possession under the amplified definition as given in the Notification, then in that case, the possession of her husband was with effect from 1‑4‑1949, while that of respondent No. 1 has been found to be with effect from 1‑4‑

50. In this way, the husband of the petitioner will be in prior possession. But then the question will be as to whether she fulfils the other requirements mentioned in this behalf or not. What those requirements are and whether they existed in the present case; we shall presently examine.

8. One of the requirements contemplated in the Notification of the Central Government, dated the 13th October 1959 is that :‑ "No other person is otherwise entitled to the transfer o such house or shop in pursuance of a final order passed by competent authority before that day." This sentence has been interpreted by a Full Bench of this Court in Writ Petition No. 834‑R of 1962, decided on the 13th of October 1965, and it was held that it means that there should be no other person in the field who is an allottee of the whole of the house. In the instant case respondent No. 1 is not an allottee of whole of the house and the bar contained in the Central Government Notification dated the 13th of October 1959, does not stand in the way of the petitioner.

9. The second requirement is that the possession of the applicant should be undisputed. It is a common‑ground between the parties that possession of both of them is undisputed and, therefore, this requirement also stands fulfilled.

10. The third requirement is about rent and that also stands fulfilled inasmuch as both the parties are claimants and their rent will be adjusted from their claim/compensation books.

11. This is not, however, the end of the matter. There is still a fourth requirement which is contained in para. 1 of the Schedule to the Act, the provisions of which envisage that if she is an indirect claimant then a direct claiment will have preference over her, Ch. Altaf Hussain v. C. S. C. Pakistan and two others (P L D 1965 S C 68). It is to be noted, however, that while con sidering the case of the petitioner under the Notification, she will become an indirect claimant; because in that case, she will be relying upon an unauthorised possession of her husband. Possession of a husband which makes his wife a direct applicant, within the meaning of the order of the Central Government printed at page 123 of the Settlement Manual (Old Edition), is such a possession which was obtained by the husband in pursuance of an allotment order. Wives of unauthorised occupants are not eligible to that concession. The upshot of the above discussion will be that even though the petitioner may be able to prove that her possession under the amplified definition, as contained in notification, dated 13‑10‑1959, is prior, but the net result will remain the same because in that eventuality she will be an indirect applicant.

12. As a result of the findings given above, the petitioner can in no case score over respondent No. 1 and her writ , petition is liable to be dismissed which we accordingly do leaving the parties to bear their own costs.

13. This case was originally heard by Ortcheson, J., who found that there appeared to be a conflict of opinion on the point as to whether an allottee could tack his earlier unauthorised possession with his possession under an allotment order or not. His Lordship referred to Muhammad Iqbal Khan v. C. S. & R. C. and another (P L D 1963 La. 11), and Hafiz Abdul Hakim and others v. Muhammad Anwar Khan and others (P L D 1963 Lah. 63) for this purpose. The opinion which we have expressed solves this conflict and settles the issue. It is further to point out that the judgment reported in P L D 1963 Lab. 63, has independently been set aside by us in L. P. A. No. 169 of 1963 decided on 13‑6‑1966. It is further to point out that judgments in both the rulings reported in P L D 1963 Lah. 11 and P L D 1963 Lab. 63, seem already to have suffered a setback by virtue of a Full Bench decision of this Court in W. P. No. 834‑R of 1962, so far as the interpretation of the sentence: "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 day;" occurring in the notification dated 13‑10‑1959 is concerned. In both the judgments under reference, it was held that if there was an allottee of a part of the house, then an un authorised occupant could not compete with him. This view has not been accepted by the Full Bench aforesaid, wherein it has been held that it is only an allottee of the whole of theta house who is to be preferred to an unauthorised occupant and that if the allotment is only of a part, then the allottee of a part of the house is at par with an unauthorised occupant and in that case it will be the other factors which will determine the respective rights of the parties but not the factor of a partial allotment order. K. M. A. Petition dismissed.