1975 PLP 416 (SCMR)

The ‑ learned Judges 'took the view, that by this deeming provision, the occupation of the house by the respondent's daughter as wife of Abdul Qudus was "possession" within the meaning of section 2 (6) of the Act, ‑of which advantage could be taken by the respondent for the purpose of paragraph 1 of the Schedule. The learned Judges of the Letters Patent ‑Bench sought support for this view from the earlier judgment of the High Court in Agha Shaukat Ali's case (P L D 1965 Lah. 445). Since Shaukat All's case was already under appeal in this Court, leave was also granted to examine the correctness of the view taken by the Letters Patent Bench in this case. The question of law which arises for decision is whether a claimant displaced person, out of possession, can seek transfer of a house on the basis of possession of his or her married daughter living with her husband, who is a non‑claimant but an allottee of a part of the house, in preference to a non‑claimant, who is a prior allottee in actual possession of another part of the house? Shaukat Ali's case has since been decided and is reported as Agha Shaukat Ali v. The Chief Settlement Commissioner and another (P L D 1:973 S C 124). That case concerned the contest between a claimant directly in possession of a part of a bungalow and another claimant out of possession, claiming its transfer on the basis of occupation by his married daughter who was living with her husband, a local and an‑allottee of another part of the bungalow. The case however, was ultimately decided on the finding that the bungalow was divisible in two self‑contained residential units and not on the basis of contest between a claimant in possession and an indirect claimant. The point in issue in this appeal, has been before this Court in two earlier cases though in a slightly modified form, in Abdul Majld Shaida v. Nur Jahan (P L D 1967 S C 221) and Ham‑ud‑Din v. The Chief Settlement Commissioner (P L D 1965 S C 615). 1 will presently revert to these cases in some detail. Among various conditions of eligibility for the transfer of property under the Schedule to the 1958 Act, is that the person seeking transfer should have been in "possession of the property" within the meaning of that term as defined in section 2(6) of the Act. The scheme in the Schedule gives precedence to the claimants, non‑claimants and locals, subject to certain limitations in that order. But "possession" of the property remains an invariable condition under paragraphs 1, 2 and 3 of the Schedule, which deal with the cases of claimants, non‑claimants and locals respectively. The decision in this appeal thus turns on the proper interpretation of paragraph 1 of the Schedule, and the determination of the further question whether the respondent's daughter is, for the purpose of paragraph 1 of the Schedule, in possession of the property? Paragraph 1 of the Schedule reads : "(1) Houses.‑A house in possession of a claimant or a parent, son, daughter or spouse of the claimant, being a house which such parent, son, daughter or spouse does not claim under the provisions of the Schedule, and if there is more than one such house, then any one of the houses which the claimant desires to retain, shall be transferred to him at a price determined on evaluation basis: Provided that if a house or a part thereof is in possession of more than one person and one of them is a claimant, then the house shall be so transferred to the claimant: Provided further that if a house or a part thereof is in possession of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession." The main opening part of the paragraph deals inter alia, with the situation, where a claimant is out of possession, but seeks transfer of property on the basis of the "possession" of any of his relatives specified in the paragraph and any such relative does not himself or herself desire the transfer of the property. The two provisos deal with a situation where there are more than one person "in possession" in severalty and there is a contest between them Inter se. This is not the case before us. In the instant case, Abdul Qudus, an allottee of major portion of the house, though at on stage filed his NCH form, later withdrew it, leaving his mother‑in‑law and the appellant in the field. From the impugned judgment, it appears the question whether Abdul Qudus had withdrawn his form was also debated, but the decision in the case proceeded on the premise that he had withdrawn his form. That being a question of fact cannot be reopened and must be accepted as correct, though appellant's learned counsel attempted tot, question it. The answer to the question arising in this appeal turns on an answer to the further question whether the respondent's daughter by reason of her residence with her husband Abdul Qudus in the house in dispute and. therefore, in its notional possession and able to avail of any incidental advantage that might accrue to her personally can also be treated to be in "possession" of the house for the purpose of above paragraph so as to lay a foundation for a similar incidental advantage in favour of her mother? This in my opinion is pivotal question in the case. The word "possession" has been defined in section 2 (6) of the Act. It reads: " `Possession' means possession obtained in pursuance of an order passed on or before the 20th day of December 1958 by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Government: Provided that if a question arises whether an officer was so authorised or permitted, the decision of the Chief Settlement Commissioner in that behalf shall be final: Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act." The second proviso to the definition was inserted on the 28th September 1939, by Ordinance LIII of 1950. Under the definition as it stood prior to this amendment, two essential conditions for the purpose of possession under the Act were that: (1) it was authorized by or under the order of a competent authority; and (ii) the order was made prior to the 20th December 1958. If any of the above two conditions was wanting the occupation of the house, did not qualify to be. "possession" within the meaning of the Act. The second proviso, was inserted plainly to empower the Central Government to enlarger the definition by an order made in that behalf. Under this proviso, a number of notifications have been issued. Memo. No. 3233‑PI‑60, of 7th March 1960, issued to treat by a deeming provision, the occupation of a house by a wife living with her husband, to be in "possession" within the meaning of the Act. The memo. is also relatable to the second proviso, though it does not say so expressly. The daughter of respondent No. 1 is not herself an allottee and there fore, does not qualify under the main provision. However, the learned Judges of the Letters Patent Bench relying on the Central Government's Memorandum dated the 7th March 1960 took the view that since the respondent's daughter is to be deemed to be in possession, there is no reason to refuse to her mother any advantage accruing from the legal fiction, for the purpose of paragraph 1 of the Schedule. Learned counsel for the respondent supported this view by strongly relying upon the case of Illum‑ud‑din decided by this Court at the leave stage. That was a case of contest between a claimant. Zubaida Khatoon by name, who not being in possession of the evacuee house claimed its transfer through the possession of her son, an allottee in possession of a portion of the house, in preference to one Ilam‑ud‑din, a non‑claimant allottee in possession of another portion of the same house. Ilam‑ud‑din having failed before the Settlement Authorities and in the High Court, to secure the transfer of the house, sought leave of this Court to appeal. Leave was refused on the ground that a non‑claimant displaced person or a local, although in actual possession cannot compete with a claimant in possession of the house whether directly or through his parent, son, daughter or spouse. The only point of distinction between the instant case and the precedent case is that in the latter case, Zubaida Kbatoon's son was in actual possession of the house and therefore, her case fell to be dealt with directly under paragraph 1 of the Schedule. In the instant case, on the other hand, the person in actual possession of the house is the son‑in‑law of respondent No. 1 who is riot among the relations specified in paragraph 1 of the Schedule. Respon dent No. 1, however, seeks to rely on her daughter's residence with her husband in the house to dispute, which the learned Judges of the Division Bench have treated as effective for the purpose of paragraph 1 of the Schedule. It goes without saying that the law shows definite tenderness for the claimants, in that among other things they can take advantage of the posses sion of any of their relatives specified in paragraph 1 of the Schedule provided that the latter "does not claim under the provisions of the Schedule" the property in his or her possession. This advantage is not available non‑claimants or local under paragraphs 2 and 3 of the Schedule. But it is important to point out even in the case of specified relatives, "possession" of the property equally remains an essential condition for the transfer in favour of a claimant not in possession. In other words, if the claimant is not in "possession" of the property, the specified heir on whom he relies must be in its "possession" to sustain the preferential claim of the ‑former for its transfer. Learned counsel for the appellant however, strongly relied on this Court's decision in Abdul Majid Shalda v. Nur Jahan for the proposition that a claimant not directly in possession, who seeks to obtain transfer of evacuee property on the basis of the possession of any .of the relations specified in paragraph 1 of the Schedule cannot take advantage ,of the two provisos to paragraph 1, so as to equate the notional possession under the Central Government's Memorandum of the 7th March 1960, with his own possession, for the purpose of taking precedence under the first proviso to paragraph

1. The facts of the precedent case in so far as they are relevant for the purpose of this appeal are, that one Abdul Majid Shaida a claimant, sought transfer of a house on the basis of the possession of his son Vakil Ahmad, in preference to Mst. Nur Jehan also a claimant living with her husband, who though not an allottee. was in "undisputed occupation" of another portion of the house. On behalf of Abdul Majid Shaida, it was canvassed that an indirect claimant who seeks transfer of as evacuee house on the basis of the possession or his parent, son, daughter, or spouse under an allotment order, would take advantage of the two provisos to paragraph 1 of the Schedule, to take precedence over the other occupant. But the Court repelled that contention, because, ex facie, the two provisos to paragraph I were directed towards two different situations where there is a contest between actual occupants of a premises. Therefore, this case cannot advance the petitioner's case before us, for the question that fell for decision in that case was wholly different Further‑ The privotal question yet remains to be seen, namely whether the notional possession oil daughter of respondent No. 1 can also be treated as possession for the purpose of paragraph 1 of the Schedule. As pointed out already, the Central Government's Memorandum of the 7th March 1960 has been issued under the second proviso to section 2(6) of the Act, which defines possession". This proviso, empowers the Federal Government to extend the meaning of possession "for the purpose of this Act". Settlement of claimants by transference of property to them under the Schedule and various Schemes framed under the Act, is paramount purpose of the Act. Therefore, it would be eminently consistent with the purpose of the Act to treat the daughter of respondent No 1 to be in possession of the house for the purpose of paragraph

1. It is necessary to observe, that by equating the national possession of the daughter of respondent 1No. I with her (daughter's) possession for tae purpose of paragraph 1 of the Schedule does not entail any unwarranted extension of fiction, which was disapproved by this Court in Begum B. H. Syed v. Mst. Afzal Jehan Begum (P L D 1970 S C 29) a case also relied upon by learned counsel for the petitioner. That was a case of fusion of two fictions created by two different notifications issued for two different purposes. In the instant case, the sheet anchor of the preferential claim of respondent No. 1 is paragraph 1 of the Schedule, which on its plain reading per se creates a preferential right in her favour, by virtue of "possession" of her daughter, which because of the extended meaning given to it by the Memorandum of the 7th March 1960, must be understood in extended sense. Paragraph 1 of the Schedule on its analysis is designed to lay the order of precedence for the transfer of immovable property; it does not create a fiction. In East and West Dwelling Co. Ltd. v. Finshury Borosingh Council Lord Asquith of Bishopstone observed: "if you are biddca to treat an imaginary state of affairs as "real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accom panied it." The putative state of affairs is the residence of daughter of respondent No.1. with her husband in a portion of the house which indisputably is "possession" within the meaning of section 2 (6) of the Act. Under paragraph 1 of the Schedule to the Act, an inevitable consequence, from the above putative fact would be, that she can if otherwise qualified so to do, or any of her claimant relation specified in paragraph 1 of the Schedule (her mother in this case) would, in the absence of a direct claimant, be entitled to the transfer of the house, in preference to the petitioner herein, who is a non‑claimant, For the foregoing reasons, the case was rightly decided by the Letters‑Patent Bench and the appeal is dismissed. In the circumstances of the case, parties are left to bear their own costs. . Appeal dismissed.