1987 PLP 1959 (SCMR)

SAAD SAOOD JAN, J.--This is an appeal by special leave from the judgment and order dated 13-6-1977 of the Lahore High Court whereby the constitutional petition of respondent No.1 was accepted and the case was remanded to the Deputy Settlement. Commissioner for making a fresh order in accordance with law.

2. The dispute in this appeal relates to four rooms located on the first floor of property No.P-219, Ward No.7, Jhang Bazar, Faisalabad. It is a composite property situate in a predominantly commercial area. It consisted of a number of shops on the ground floor and residential flats on the first floor. One of the shops was transferred on his C.S. form to Abdur Rahim, predecessor-in-interest of the appellants. The rooms in dispute wholly or partly overlay the said shop. Two of the rooms were being used as offices by the local Communist party and some other political and trade organisations. Respondent No.1, as office-holder of these organisations, was in occupation of these rooms. They were sealed in 1953 by the local ill administration after a ban had been imposed on the Communist party. The other two rooms were in possession of respondent No.1. The date when he took over possession of the rooms is a matter of dispute, between the parties. However, that may be, he filed a C.H. form for the transfer of the four rooms.

3. After obtaining transfer of the shop Abdul Rahim applied to the Settlement Authorities for the transfer of the rooms in dispute as well on the ground that they formed part of his shop. It may be stated here that on a C. H. form separately submitted by him he had already transferred a house situate in a nearby street. There were some other applicants also for the rooms in dispute but we are not concerned with them. Consequent upon an order of remand by the Settlement Commissioner, whereby the earlier orders of transfer were set aside, a Deputy Settlement Commissioner on 30-4-1966 transferred the rooms in dispute to Abdur Rahim as part of his shop for the reason, primarily, that respondent No.1 had failed to prove his possession over the rooms from a date prior to 21-12-1958. Respondent No.1 challenged the order of the Deputy Settlement Commissioner in appeal before the Additional Settlement Commissioner and in revision before the Settlement Commissioner but without any success. He then invoked the constitutional jurisdiction of the High Court.

4. A learned Single Judge in the High Court found that respondent No.1 had not been given adequate opportunity to show that he had been in possession of the rooms in dispute on the target date for when the Deputy Settlement Commissioner heard the case respondent No.1 was lying ill. There was evidence available from the record of the rehabilitation authorities and of birth and death register which prima facie indicated that respondent No.1 had been in possession of the premises in dispute since 1950. The other rooms located on the first floor had been treated as residential units and transferred accordingly to different occupants thereof; there was no reason why the rooms overlying the shops transferred to Abdur Rahim should have been treated differently. Apart from that, Abdur Rahim had only applied for the transfer of the shop which was duly given to him. He had not asked for the transfer of the rooms which overlay his shop and which in any case were never in his possession. Accordingly, the learned Single Judge set aside the transfer of the rooms in dispute made in favour of predecessor in interest of appellants and remanded the case to the Deputy Settlement Commissioner concerned with the direction that he should ascertain facts, apply the same formula for transfer of the portion in dispute which had been applied for transfer in respect of the other portions of the composite property and pass fresh order in accordance with law. The appellants have come in appeal to challenge the legality of the order passed by the learned Single Judge.

5. After hearing the learned counsel appearing for the parties we do not think that a case for interference with the order of the learned Single Judge has been made out. There is little doubt that respondent No.1 was in possession of at least two of the disputed rooms. This was admitted by Abdur Rahim himself in an application which he submitted on 11-2-1960 (see page 16 of the paper book). The questions whether his possession started before the target date and whether he was also in actual possession of the rooms sealed by the local administration do not seem to have properly inquired into by the settlement authorities. As pointed out by the learned Single Judge there is evidence which tends to suggest that he was occupying a portion of the property in dispute before the target date. He was admittedly a claimant and had submitted a C . H . form for the transfer of the portion in his possession. In the event his possession over the rooms in dispute or some of them was found to originate from a date prior to the target date another question which required examination was whether his C.H. form could be legally rejected. There is also no finding whether the rooms in dispute or some of them constituted an independent unit or they appropriately formed part of the shop transferred to Abdur Rahim. All these questions need to be resolved. We would therefore, decline to interfere with the judgment and order of the learned Single Judge.

6. The grievance of the appellants is that in his order the learned Single Judge has made observations which have the effect of pre-judging their case. In order to dispel this fear we would direct that the officer to whom the proceedings are now entrusted should examine the case and make appropriate order uninfluenced by the observations of the learned Single Judge.

7. For the reasons stated above, we would dismiss this appeal but leave the parties to bear their own costs. S.Q./M-188/S Appeal dismissed.