P L D 1966 (W (PLP)

S. A. MAHMOOD, J.‑This js a writ petition by Mst. Fazal Bibi under Article 98 of the Constitution of Islamic Republic of Pakistan, praying that the order of the Additional Settlement Commissioner, dated the 29th of August 1960 and that of the Settlement and Rehabilitation Commissioner, dated the 15th of November 1962, be declared to be without lawful authority and of no legal effect and that it be also declared that the property stands transferred in her name by the order of the Deputy Settlement Commissioner dated the 24th of October 1959. 2. The house in dispute is P/71 Santpura, Lyallpur. The Deputy Settlement Commissioner transferred it to Mst. Fazal Bibi, who was claiming its transfer on the basis of the possession of her son Faqir Muhammad, who is allottee of ground floor of the house under order dated the 20th of October 1948, as prior allottee. Mehr Ibrahim respondent No. 1 appealed against the order of the transfer and claimed transfer of the whole house on the strength of allotment of its first floor to his son Allah Ditta. The Additional Settlement Commissioner accepted his appeal and mentioning that it was a double‑storeyed house, ordered horizontal division. The petitioner was transferred the ground floor and Mehr Ibrahim respondent the first floor and gallery. The deori was left common to them to be used by both. The respondent No. 1 was still not satisfied and. he moved the Settlement and Rehabilitation Commissioner in revision. The Settlement and Rehabilitation Commissioner came to the conclusion on the basis of entries in the survey register that Mehra Ibrahim had come into occupation of the house on a date earlier than the petitioner, in spite of an allotment order, which the petitioner produced before him showing that she was in possession of the house in 1947. As the allotment order was not supported by entries in the survey register, he agreed with the contention raised by the learned counsel for the respondent that this allotment order may not be genuine. He found both the parties to be indirect claimants, and as he understood from the parties that the petitioner had at that time shifted to another rented house, he thought it probable that this was because of the inconvenience of the horizontal division. He, therefore, held the house to be definitely indivisible, so that it had to go to one party and although the respondent had only applied for the transfer of the first floor and the deori on the ground floor, he ordered the transfer of the entire property to him, as a prior allottee. This order is impugned by the present writ petition. 3. The learned counsel for the petitioner contends that as the date of allotment and possession of the petitioner is prior to that of the respondent and that as the respondent did not claim transfer of the ground floor, except the deori, the rest of the house could not be transferred to him and further that the horizontal division of the house, which was in accordance with the instructions of the Chief Settlement Commissioner, should not have been interfered with. The ground of inconvenience of division which the Settlement and Rehabilitation Commissioner deduced from the petitioner's shifting to another house in 1962 was not a legitimate conclusion for upsetting the division of the house ordered by the Additional Settlement and Rehabilitation Commissioner since the parties had lived in the house since 1948, which had stood divided for all practical purposes. Thus, the reason for upsetting the division, namely, shifting to Another house, had no relevance to the question of division. The learned counsel for the petitioner further contends that the fact that the respondent only claimed transfer of the ground floor also clearly indicated that the house was capable of division and this material aspect of the case has been overlooked by the Settlement and Rehabilitation Commissioner. 4. A certified copy of the entries in the survey register has been produced on this record. In this copy it is shown that Faqir Muhammad, son of Shadi and the petitioner was allotted the ground floor on the 20th of October 1948. The allotment order, which she has produced on the record, is also of that' date. He is also mentioned as allottee in the survey register. Therefore, Faqir Muhammad, her son, is proved to be allottee of this house since the 20th of October 1948. The learned Settlement Commissioner mentioned that she had showed him an allotment order of the year 1947, but this fact is denied and it is claimed that he was shown the order of 1948, but whatever was the correct position there is no reason to doubt the genuineness of the allotment order produced by her on this record. She has also claimed in paragraph 3 of the petition that Allah Ditta, son of the respondent, got the allotment order subsequent to the allotment of her son and this fact was not specifically denied by the respondent in that paragraph, though it was asserted in paragraph 7(c) that it was wrongly stated by her in her affidavit that her allotment was prior to that of the respondent's son. The Deputy Settlement Commissioner found that the petitioner had come into possession from a prior date, but the Settlement Commissioner by merely relying on an entry in the survey register showing Allah Ditta, son of Mehr Ibrahim, allottee; from the 15th of May 1948, held him to be a prior allottee without calling for the original allotment order or the respondent's producing it. It appears from entries in the copy of the survey register, which has been produced, that allotment cards were issued to both the parties on the 23rd of April 1952 and the date of allotment is mentioned as 6/12. The entries in it are thus conflicting. In these circumstances, it needs to be re‑examined by particular reference to allotment orders whether the respondent's son is prior allottee. 5. The Settlement and Rehabilitation Commissioner held the house to be indivisible, although the Additional Settlement Commissioner had divided it horizontally, leaving the deori common to the parties. The fact that the respondent himself claimed transfer of the first floor with the deori on the ground floor, indicated clearly that the house was divisible and this fact was overlooked by the Settlement and Rehabilitation Commissioner. He held the house to be indivisible simply on the ground that the petitioner had on the date of hearing of the revision petition shifted to another house, but there could be many reasons for her shifting from the house, wholly unconnected with the inconvenience of the division, for the parties had lived in the house since 1948. If they had lived in the house for 14 years and shifted in 1962, the reason must have been different than the inconvenience of the division. It is the case of the respondent that on account of the murder of Muhammad Yusaf anvil prosecution of petitioner's son and two grandsons she had shifted. Thus on the respondent's own showing it was not the inconvenience of the division, which led to her shifting from the house. Therefore, the, conclusion of the Settlement and, Rehabilitation Commissioner as to its indivisibility is unsustainable, particularly when the division of the house by the B Additional Settlement Commissioner was not in any way opposed to the instructions of the Chief Settlement Commissioner, for many houses have been divided into even smaller portions and the respondent had not claimed transfer of the ground floor. When the Additional Settlement Commissioner had divided the house horizontally to accommodate two claimants, and the respondent did not claim transfer of the ground floor, there was no justification for the Settlement Commissioner to interfere and to hold it to be indivisible. 6. This takes me to the consideration of the question whether the respondent having claimed transfer of the first floor and deori on the ground floor was entitled to the transfer of the whole house. Since he had not claimed transfer of the ground floor, he could not claim its transfer as of right. If the remaining portion of the house was transferred to him by the Settlement Commissioner, it was a concession or a privilege shown to him. As a general rule, a person who does not claim the whole house is not entitled by right to the transfer of and should not be transferred the whole house. This is supported by the decision of the learned Judges of the Supreme Court in Civil Petition for Special Leave to Appeal No. 5 of 1962 Muhammad Hanif v. The Settlement and Rehabilitation Commissioner decided on the 6th of February 1963, holding as follows:‑ "The order of the learned Judge of the High Court was justified on the ground on which it rested, but we are of the opinion, that even otherwise the petitioner had no case. He had applied only for the transfer of chaubara to him and that chaubara had in fact been transferred to him. He had no right to the transfer of the shop for which he had not applied at all. It is urged before us that the shop and the chaubara constitute one unit, even if it be that so, the petitioner would not be entitled to the transfer of the shop if he never applied for ft." I would respectfully invite attention to the lines underlined above, which would clearly show that if a person has not applied for the transfer of the whole of the property, then even if it is D held to constitute one unit, he is not entitled to the transfer of the entire unit. In the present case, the Additional Settlement Commissioner had transferred to the respondent, the first floor, of which he had desired transfer. When he claimed the transfer of the ground floor in revision the fact that he had not claimed transfer of the ground floor, should have been enough to rule out his claim to the ground floor, because in revision under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, the Settlement Commissioner satisfies himself as to the correctness, legality or propriety of, such order and the order of the Additional Settlement Commissioner, in the circumstances, could not be said to be otherwise. The claimants are beneficiaries from the compensation pool, as is evident from the provision of the Displaced Persons (Compensation and Rehabilitation) Act and therefore; it was more in consonance with the provisions and the purpose of the Act to compensate two claimants by accommodating them in the house rather than benefiting only one of them. Where there are two claimants applying for the transfer of a house and one of them has claimed only a part of the house, it would be inappropriate to transfer the remaining portion of the house to him, because firstly he has no right or entitlement on general principles to the transfer of the remaining property and secondly, because by hi own claim for a part of the house, he indicates that the house is capable of division and can conveniently be divided. 7. The learned counsel for the respondent has referred me to Nazir Ahmad v. Mst. Sakina Bibi and others (1), in which S. A. Haq, J., held as follows:‑‑ "What has to be transferred to an applicant under the several paragraphs of the Schedule to the Act is a house, irrespective of the prayer made in the applications itself. Similarly, if an applicant asks for less than a house, the Settlement authorities are not obliged under any provision of the law, to split up a house so as to comply with the wishes of the applicant. The jurisdiction under the proviso to clause (4) of section 2 of the Act vests in the Chief Settlement Commissioner or his delegate to decide as to what is, a house and if the house is not found to be divisible, then the Settlement authorities have to transfer the house as a whole irrespective of the prayer made by the contending applicants. In such a case, they have, of course, to determine the further question as to which of the contestants has a preferential right to the transfer of the house as a whole." In the above case the transfer of the entire house to Mst. Sakina Bibi, who had not asked for the transfer of the whole house, was not held to be invalid or without lawful authority for the reason that she had made her prayer in accordance with the definition of the house, as it stood at the time of making the application, but the definition was later changed in September 1959 and as the Settlement Authorities found the house to be indivisible, she was held to have become entitled to the transfer of the whole house as being the only person in possession within the meaning of the law. 8. If a claimant be the only person applying for the transfer of a part of a house, which as a whole, is held to be indivisible, it may be transferred to him by the Settlement authorities, if he is willing to accept the whole, but I find it difficult to hold, with respect, that he is by right entitled to its transfer as a whole, because entitlement depends upon the extent to which a claimant has claimed its transfer. As a general principle, underlying all claims, no person is entitled to the grant of more than what he claims. To grant more is to make a concession in his favour, but by right he cannot have anything more than what he has claimed. If he can refuse to accept transfer of a part of an indivisible house, as I believe he can, why cannot a part of it not be given to him, if he has not applied for its transfer. A claimant can and should, if he wises to claim the whole house, amend his form to claim the whole house, in which case be could be considered for the transfer of the whole house, even if there be a rival claimant for its transfer; but if there be two claimants and one of them has claimed a part of the house (and not had his form amended) and the other either the rest of the house or the whole house and if the former has to be preferred for transfer, ordinarily the former should be transferred no more than what he has asked for and the remaining portion should be transferred to the other. This would further the intent and purposes of the Displaced Persons (Compensation and Rehabilitation) Act. I have always taken the view on the general principles that a person is not entitled to be 1transferred more than what he has claimed and this view finds clear support from the observations of the learned Judges of the Supreme Court mentioned above, which were followed by Karam Elahi Chauhan, J., in Amir Din and others v. Muhammad Siddique and others (P L D 1966 Lah. 416). 9. For all the reasons given above, I set aside the order of the Settlement and Rehabilitation Commissioner and remit the case to him for fresh decision. The parties will bear their own costs of this writ petition. A. H.??? Case remanded.