P L D 1966 (W (PLP)

This petition under Article 98 of the Constitution concerns House No. 0/521 situated in Mohallah Kartarpura of Rawalpindi. The petitioner Nazir Ahmad is a claimant displaced person and has been in occupation of a portion of this house since October 1948, whereas the other portion is in the possession of Mst. Sakina Bibi respondent No. 1, whose husband Abdul Hamid was an allottee of the house. When the Settlement operations started both the parties submitted CH forms for the transfer of the house. It is alleged in the petition that respon dent No. 1 applied for the transfer of only her, portion and not for the whole house. By .his order dated the 30th of December 1959 the Deputy Settlement Commissioner transferred the entire house to Mst. Sakina Bibi. The petitioner preferred an appeal against this order which was, however, dismissed by the Additional Settlement Commissioner on the 28th of June 1960, observing that he had inspected the spot and found the house to be indivisible, as there was no partition wall between the two portions, and there being only one staircase leading to the roof of the house. He concluded by saying that it had, therefore, been rightly transferred as one residential unit to the respondent. The petitioner then filed a revision petition which was also dismissed by the Settlement Commissioner by his order dated the 13th of October 1960. This officer also treated the house as indivisible and stated that the respondent Mst. Sakina Bibi being an allottee and the holder of a substantial claim had to be given preference over the petitioner who was a non‑allottee and had a meager claim with a deferred amount of about Rs. 2,000 only. Against this revisional order the petitioner preferred a further revision which was also dismissed by Mr. Mir Ajam Khan exercising the powers of the Chief Settlement Commissioner. In his order dated the 5th of May 1961 the learned Chief Settlement Commissioner stated that he had inspected the spot and found the house to be indivisible, and as the petitioner was a non‑allottee, he had to give way to the respondent Mst. Sakina Bibi who was an allottee and thus entitled to the transfer of the whole house.

2. The learned counsel for the petitioner‑has attacked the correctness and legality of the orders passed by the Settlement authorities on the following grounds:‑ (a) That the house was in fact divisible as it bad been occupied by at least three families before partition, and since partition the two contending parties have been occupying separate portions, (b) that respondent Mst. Sakina Bibi could not be treated as an allottee,. as the allotment was in the name of her deceased husband, and (c) that, in any case, the respondent had applied for the transfer of only the portion in her possession and accordingly the Settlement authorities had no jurisdiction to transfer the entire house to her.

3. The question whether a house is divisible or not is obviously a question falling eminently within the jurisdiction of the Chief Settlement. Commissioner or his delegate acting in accordance with the' provisions of proviso I to clause (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). The mere fact that a house consists of more than one residential unit and such units are in the possession of several persons does not necessarily mean that the house automatically stands divided into as many separate and independent portions. According to the proviso, just mentioned the whole of the building or premises are to be deemed to be a house in such a case, unless the Chief Settlement Commissioner orders otherwise. Now, in the present case the Additional Settlement Commissioner and the Chief Settlement Commissioner have personally inspected the spot and recorded a finding that the house was not divisible. Such being the case, the house has to be treated as indivisible and it is not for this Court to order otherwise. It may be stated that the Settlement Authorities have given cogent reasons for their refusal to divide the house and, therefore, it is not a case where they have acted arbitrarily or capriciously in refusing to exercise the power vesting in them under the proviso mentioned above. Finally, it may be added that even the petitioner himself described the house as indivisible in his statement made on the 13th of November 1959 and claimed its transfer as a whole.

4. The second contention has also no force for the reason that not only is the respondent the successor‑in‑interest of he husband, but also by virtue of an order issued by the Central Government on the 7th of March 1960 (reproduced, on page 123 of the old Manual of Settlement Law and procedure) the wife of an allottee, if staying with him, was, to be deemed to be in possession. Thus Mst. Sakina Bibi is to be treated as a person in possession, i.e., an allottee in her own right by virtue of this order of the Central Government issued under the second proviso to clause (6) of section 2 of the Act. The petitioner being a non‑allottee could be deemed to be in possession only under the provisions of the Central Government's notification dated the 13th of October 1959. Two conditions have to bet fulfilled by such a person before he could be deemed to be in possession, namely (a) that he must be in undisputed occupation of the house, and (b) that no other "person should have become entitled to its transfer under a valid order issued by a competent authority before the 21st day of December 1958. In the report submitted by the department it is stated that the petitioner was not in undisputed occupation of his portion of the house, and in support of this statement a reference is made to a document which, however, does not appear to have been sent along with the report. However, apart from this, the fact remains that Mst. Sakina Bibi had become entitled to the transfer of the house by virtue of being in possession under an order issued before the 21st day of December 1958 and, therefore, the petitioner's case is not covered by the notification of the 13th of October‑ 1959. As a result it was only the respondent Mst. Sakina Bibi who was to be deemed to be in possession of the house, and the petitioner not being in possession of any part of the house, within the meaning of that term as defined in the Act, had no entitlement to its transfer, particularly in preference to the respondent.

5. The last question which needs to be considered is whether Mst. Sakina Bibi could be transferred the whole house when she had in fact requested for the transfer of only her portion in her CH form. The argument of Mr. Mujaddid Mirza, the learned counsel for the petitioner, is that the Settlement Authori ties had no jurisdiction to transfer to the respondent more than she had asked for. He submitted that this was an established principle in the matter of grant of relief to any party to a cause. The argument, however, is fallacious. When the respondent submitted her CH form on the 15th of July 1959 the definition of the word "house" was different. As that definition stood before the promulgation of Ordinance 53 of 1959 the proviso to clause (4) of section 2 of the Act read as follows:‑‑ "Provided that where a building not so declared consists of more than one residential premises and such premises are in the possession of several persons, the premises in the possession of any one of such persons shall be deemed to be a house." Under this definition the respondent had no alternative but to apply only for her portion of the house, but this definition was changed by the amending Ordinance referred to above, with the result that the entire building or premises were to be treated as one house unless the Chief Settlement Commissioner ordered otherwise. What has to be transferred to an applicant under the several paragraphs of the Schedule to the Act is a house, irrespec tive of the prayer made in the application itself. If for instance an applicant prays for the transfer of two houses, the Settlement authorities have no jurisdiction to oblige him in that behalf, as the law forbids the transfer of more than one house to an applicant. 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 farther question as to which of the contestants has a preferential right to the transfer of the house as a whole. It thus appears to me that the transfer of the whole house to the respondent Mst. Sakina Bibi cannot be declared as being invalid or without lawful authority simply for the reason that the respondent had, in the first instance, asked only for the portion in her possession. That prayer was in accordance with the definition of the house as it stood at the time of making the application, but once the defini tion was changed in September 1959, and the Settlement authorities found the house to be indivisible, the respondent became entitled to the transfer of the whole house, as being the only person in possession within the meaning of the law. For the foregoing reasons, I see no merit in this petition which is dismissed with costs. S. Q. Petition dismissed.