1968 SCMR 124 (PLP)

HAMOODUR RAHMAN, J.-The dispute in this case relates to property No. 132-S-8, Balakot Street, Nisbat Road, Lahore. The petitioner claimed transfer of this property as a claimant in prior possession of a major portion thereof. In his C.H. Form which he filed he actually stated that he did not hold any allotment order. Accordingly he also filed a declaration of eligibility along with his C.H. Form. But the respondent No. 1 was held to have a pre ferential right to the transfer of the property in dispute and the entire house, which was considered to be indivisible, was transferred to her, as she was an allottee. It appears from the order of the Deputy Settlement Commissioner that the petitioner had, in spite of repeated requests, refused to have his statement recorded. The petitioner went up in appeal and revision to the higher Settlement Authorities but he failed throughout. Ulti mately he filed a review against the order passed by the Chief Settlement Commissioner in second revision on the 10th of October 1960. This was dismissed on the 15th of July 1961. He put in a second review petition on the 3rd of October 1961, and it was at this stage that he for the first time alleged that he was also an allottee of the premises and produced an allotment order which, he said, he had managed to trace out from his old papers. The Chief Settlement Commissioner refused to accept this allotment order as genuine and again dismissed the second review petition. The petitioner then moved the High Court under Article 98 of the Constitution. A learned Single Judge took the view that the genuineness of this allotment order could not be accepted, as the alleged allotment order on the face of it showed that on the date given on the allotment order, namely, 20-9-1947, there was do Rehabilitation Authority of the description given therein, and further that the office-, who had been shown to have signed the order, was not appointed in that capacity on that date. The writ petition was, accordingly, dismissed and this order was also upheld in appeal by the Letters Patent Bench. The petitioner now seeks special leave to appeal as a pauper but the learned counsel, who appeared for him in the High Court, has, with our permission, represented his case before us free of charge. His contention that even though his allotmen order was produced at a very late stage justice demanded that i should have been considered, cannot be accepted in view of th A serious doubt as to its genuineness. It is clear from the C.H. Fo put in by the petitioner himself that he claimed only on th basis of his possession and not as an allottee. Learned counsel next contends that even if this allotment order is excluded from consideration the position still remains that under the extended meaning given to 'possession' by the notification issued by the Central Government on the 13th of October 1559, 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, his entitlement to possession on the basis of his undisputed occupation has not been considered by any of the Courts below. If his possession was prior in point of time to that of the respondent No. 1 even then he would have had a preferential right to the transfer of the property. In this connection he has relied upon a decision of thi Court in the case of Barkat Ali v. Muhammad Sharif (P L D 1966 S C 817) wherein it has been held that undisputed possession from before the 21st of December 1958, is just as good as being in possession under an allotment order. The point raised appears to us to be not without substance. This aspect of the case has not been considered either by the Settlement Authorities or by the High Court. Leave is, accordingly, granted to examine this question. Since the petitioner is a pauper he need not furnish cash security but will furnish surety for costs in the sum of Rs. 1,

000. Petition allowed.