1977 PLP 294 (SCMR)

MUHAMMAD HALEEM, J.‑This appeal is by special leave against the judgment dated 19‑12‑1968 of a Division Bench of the erstwhile High Court of West Pakistan, Lahore Seat by which Letters Patent Appeal No. 514 of 1963 was dismissed. The dispute relates to the transfer of House No. 291/5 in Mandi Bahauddin, District Gujrat. The appellant's husband was in occupation of a room in the house since 3‑12‑1954 while the rest of the house was in possession of the first respondent since 24‑12-1947. It appears that this house was transferred to the first respondent and House No. 290 in the same Ward was transferred to the appellant. A dispute arose as to the scope of the transfer in favour of the appellant. The first respondent contended that it related to the transfer of the room of House No. 291 of which she was in occupation which was denied by the appellant, as she claimed to be the transferee of House No.

290. The appellant challenged the order of transfer dated 7‑1‑1960 in favour of the first respondent before the Additional Settlement and Rehabilitation Commissioner, Sargodha Region, Sargodha who by order dated 6‑2‑1960 held that the house was fit for the residence of one family only and maintained its transfer in favour of the first respondent. Accordingly, the appeal was dismissed. The appellant preferred a revision against this order before Malik Fateh Khan, Settlement and Rehabilitation Commissioner, Rawalpindi Division, Rawalpindi. Since his order dated 28‑4‑1960 is the sheet anchor of the appellant's case, it is reproduced as under: "Some complications have arisen on account of numbers given to the house. House No. 5/291 is said to have been given to Muhammad Bashir. The contiguous portion in which Mst. Ghafooran (the petitioner) is residing in No. 5/290. Reference to the number the house is given in the case and I have seen the photo of the house Exh. P. I. produced before ale. The portion denoted by the letters A. C. E. F will be transferred to Muhammad Bashir in lieu of his claim as he has been in possession of Mst. Ghafooran will be transferred to her in lieu of her verified claim. Her petition is allowed accordingly:" The first respondent filed a second revision before the Chief Settlement and Rehabilitation Commissioner against this order which was rejected on 23‑5‑1960. A note seems to have been appended at the foot of the order bearing the date 30‑8‑60 which runs thus: "The petitioner says that the division is not acquitable. Two rooms in possession of the petitioner have been given to the respondent. Division appears to have been done by Settlement Commissioner, Rawalpindi after careful consideration. We need not interfere." The first respondent assailed these orders in writ jurisdiction and a learned Single Judge held that the order of Malik Fateh Khan, Settlement and Rehabilitation Commissioner was passed on the basis of possession of the parties which in the case of the appellant was the built‑up portion of House No. 290 comprising one room only which was allotted to Qudratullah in 1954. Accordingly he repelled the contention of the first respondent that this room formed part of House No.

291. Against this judgment dated 19‑11‑1963 the first respondent preferred a Letters Patent Appeal and a Division Bench held as under : "As a result, our conclusion is that the dispute before us is related to a room of House No. 291 which has been transferred to Mst. Ghafooran by the house having been declared as being divisible." The Division Bench further observed ;‑ "As a result, it is made cleat that irrespective of the dividing line drawn by Malik Fateh Khan on the photograph Exh. P. I, the intention all along has been to transfer to the respondent only one room which is in her possession out of house bearing No. 5/291." Leave was granted to consider the merits of these observations in the face of the fact that the photograph of the house marked as Exh. P. I was not available on record as the lines of division which could have formed the basis of the said observations was not even seen by the learned judges. Apparently the photograph on which Malik Fateh Khan drew the lines, and marked the portions as A. C. E. F. and A. B. D. C. as being those transferred to the first respondent and the appellant, respectively, does not bear his signature and, therefore, it is not a genuine document. Accordingly it would only be appropriate to go by the text of the order and not by the lines drawn on the photograph. On this view of the matter the learned Judges of the Division Bench correctly held that from the text of the order the intention was to transfer to the appellant only one room of, the house bearing No. 291/5 which was in her possession. This conclusion is, unexceptionable. There is, therefore, no substance in this appeal which is dismissed but with no order as to costs. Appeal dismissed.