1972 PLP 141 (SCMR)

WAHEEDUDDIN AHMAD, J.‑This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, dated the 24th October 1966, in Letters Patent Appeal No. 1099 of 1966. By this judgment, the appeal of the appellant was dismissed and the transfer of the property in dispute in favour of the respondent No. I was upheld. The dispute between the parties is in respect of a small house No: 132‑8‑8, Balakot Street, Nisbat Road, Lahore. The appellant and the respondent are in possession of the said house. Appellant Chiragh Din, respondent Mst. Amir‑un‑Nisa and one Muhammad Shafi applied for its transfer. The Deputy Settlement Commis sioner, by order dated the 5th December 1959, transferred the property in dispute to the respondent. The appellant challenged this order before the Additional Settlement Commissioner, which was dismissed on the 7th January 1960. He held that the appellant did not have any allotment order. A review petition was also moved before the Additional Settlement Commissioner which was also dismissed. The appellant then filed a revision petition before the Settlement Commissioner which was dismissed on the 9th May 1960 on the ground that he was a non‑allottee. A second revision petition was filed under clause (2) of section 20 which was dismissed by the Chief Settlement Commissioner on the 10th October 1960. The appellant then filed a review petition which was dismissed by the Chief Settlement Commis sioner on the 15th July 1961. On the 7th June 1962, the appellant again moved the Chief Settlement Commissioner for the decision of his review petition. On that petition Mr. M. H. Sufi passed the following order :‑ , "The Chief Settlement Commissioner has rejected the case in revision. The appellant came up in review, but the C. S. C. declined to interfere with the previous decision. It is regretted that the case cannot be re‑opened." The appellant challenged this order in writ petition before the former High Court of West Pakistan, Lahore. 1n the writ petition, he has alleged that he was an allottee and produced in the writ petition an allotment order in his favour in respect of the property in dispute. A learned Single Judge of the High Court doubted the authenticity of the allotment order and dismissed the claim of the appellant on the ground that he was a non‑allottee and the respondent being an allottee was entitled to preference. This view was also upheld by the Letters Patent Bench in the above‑mentioned decision. The appellant has challenged these orders in this appeal before us. Special leave was granted in this case to consider the question whether under the extended meaning given to `possession' by the notification issued by the Central Government on the 13th October 1959, in exercise of its powers under the second proviso to subsection (6) of section 2 of the Displaced Persons (Compen sation and Rehabilitation Act, 1958, the appellant's entitlement to possession on the basis of his undisputed possession has not been considered by any of the Courts below. Mr. Akhtar Mir, learned counsel for the appellant, has contended that the appellant is in prior undisputed possession of a portion of the property in dispute and even if his case on the basis of allotment is excluded he is entitled to the transfer of the property in dispute in preference to the respondent. The learned counsel referred us to a chit of the Magistrate showing that the appellant was inducted into possession on the 26th August 1947. He also referred us to the survey register which shows that he was in possession of the property in dispute from December 1947. On the other hand, the learned counsel for the respondent, has referred to certain documents which show that the respondent is in possession of the property in dispute from the 22nd August 1947. The appellant's counsel, however, urged that these documents are forged and no reliance can be placed on them. After hearing the learned counsel for the parties, we are satisfied that the claim of the appellant that he was in prior possession of the property in dispute on the basis of the above mentioned notification was not considered‑ by any of the Settle ment authorities. This aspect of the case also escaped notice of the High Court. The question, however, whether the appellant is in prior possession of the property in dispute or the respondent! is in prior possession is a question of fact which can only be determined by the Settlement authority. We would, therefore, set aside the orders of the High Court and the Settlement Authorities and send back the case to the Settlement Commis sioner, Lahore, to decide the question as to which of the two parties are in prior possession of the property in dispute. It will be open to the parties to produce evidence before the Settle ment Commissioner in support of their case. The allotment order in favour of the appellant will also be scrutinized by the Settlement Commissioner. The Settlement Commissioner will further decide whether the respondent claims the property it dispute in her own right or on the basis of the possession of her son, and will also decide the claim of the parties on this basis. In the result, the appeal is allowed. The cost of this appeal will depend on the result of the enquiry held by the Settlement Commissioner. Appeal accepted.