1975 PLP 385 (SCMR)

Nemo for Respondents. Date of hearing : 6th March 1975. MUHAMMAD YAQUB ALI, J.‑The dispute pertains to transfer of the common passage of several tenements of property No. SD‑3/32, were Street, Karachi. Parts of the property which is of composite nature were transferred to different persons in occupation including Shah Zaman Khan, respondent. No. 2, since deceased, and represented by his heirs mentioned at (a) to (g) in the title of the petition. Common passage of the property was in occupation of the petitioner. He did not file any settlement form for its transfer but in routine, P. T. O. and P. T. D. were issued in his name on evaluation basis. Later on when Shah Zaman came to know of the transfer, he filed an appeal before the Additional Settlement Commissioner who cancelled the P. T. O. and P. T. D. issued in favour of the petitioner on the finding that the portion transferred to him did not constitute an independent unit. The petitioner challenged this order before the Settlement Commissioner who inspected the site and found that the portion in occupation of the petitioner was a common passage which could not be transferred as a residential unit. Also as the petitioner had not filed any settlement form, it was held that he had no entitlement to obtain its transfer on evaluation basis. The P. T. O. and P. T. D. issued ire favour of the petitioner were, on these findings, held to have been properly cancelled by the Additional Settlement Commissioner. At the same time, the Settlement Commissioner directed that this portion may be disposed of by public auction as it stoo.3 converted to a house since 1947. Needless to emphasise the two findings were per se contradictory. Both the parties filed writ petitions in the High Court against the order of the Settlement Commissioner. The petitioner claimed that the transfer in his favour was illegally cancelled while respondent No. 2 challenged the direction that the common passage of the property be sold by public auction. The High Court has dismissed the writ petition filed by the petitioner in agreement with the finding of the Settlement Authorities that common passage in his possession did not constitute an independent unit and its transfer as a house was illegal. The writ petition filed by respondent No. 2 was allowed and the direction given by the Settlement Commissioner for sale of the common passage, quashed as without lawful authority. The Settlement Department has not chosen to agitate against this part of the order of the High Court. The petitioner seeks leave to appeal reiterating the ground that the P. T. O. and P. T. D. issued in his favour could not be set aside by the Additional Settlement Commissioner at the instance of respondent No. 2 after the transfer in his favour had obtained finality. The ground raised has little substance. House is defined in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as :‑ "2(4). `House' means evacuee residential premises of any value in an urban area or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and outhouses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or outhouse is in possession of a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises declared under paragraph 16 of the Schedule to be a big mansion or hotel." The definition makes it abundantly clear that common passage of a house or composite property does not constitute a separate unit for purposes of transfer. The purported transfer in favour of the petitioner was thus illegal and rightly set aside by the Additional Settlement Commissioner. Both the petitions for leave to appeal are dismissed. Petitions dismissed.