P L D 1967 Lahore 346 (PLP)

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Schedule, para. I ‑Death of allottee of house Allotment to be considered to have enured for benefit of all heirs of deceased allottee. Ch. Khurshid Ahmad for Petitioner. Ch. Muhammad Iqbal for Respondents Nos. 1 to

3. Nemo for Respondent No.

4. Dates of hearing: 2nd and 4th November 1966. This writ petition pertaining to ,transfer of house No. SE XVI‑12‑S‑47, Ramgarh, Mughalpura, Lahore, was admitted to consider the contention that even if the house be treated as indivisible, the petitioner Allah Bakhsh being a claimant in prior possession had a preferential right as compared to the respondent Imam Din but the learned Settlement Commissioner ignored this aspect altogether and proceeded to determine the relative merits of the two claimants on the strength of the extent of their possession, which is not a ,criterion sanctioned by law. The brief facts relevant for decision of the case are that Allah Bakbsh is a claimant who had filed his CH form desiring transfer of the house to be exclusion of Imam Din on the strength of allotment (of a part of the house) of his son Abdul Haq, which allotment dates back from the 5th of May 1948. Similarly, Imam Din respondent, since died, filed form CH on the basis of the allotment (order dated the 17th of August 1949) of a portion of the house, of his son Sardar Muhammad. The Deputy Settlement Commissioner transferred the entire house to Allah Bakhsh. On the appeal of Imam Din the house was divided between the two contestants. The Settlement Commissioner, however, while disposing of the two cross‑revision petitions of the parties has reversed the finding of the appellate authority with regard to the divisibility of the house and has given the entire property to Imam Din and the writ petition is directed against this consolidated order of the Settlement Commissioner.

2. The legal point that falls for decision is with regard to the applicability of para. l .of the Schedule of Act XXVIII of 1958. We have two claimant‑fathers pitched against each other, claiming transfer of the entire property in either case, on the basis of the allotment order of the son. It is now settled law that under para. 1 of the Schedule an applicant for transfer of a house can take advantage of the possession of a parent, spouse, daughter or son provided the applicant is a claimant and there is no one else to compete with the applicant. Now the peti tioner as also Imam Din were contending for the same property and, therefore, it cannot be urged with success that either of them could claim transfer of the property under para. 1 of the Schedule. The result is that the petitioner, although a claimant, being himself not an allottee of a part of the premises, could not avail of the privilege granted by para. 1 of the Schedule. In the circum stances if the petitioner has been eliminated by the Settlement authorities, he has no locus stands to assail transfer of the property to the respondent Imam Din because once the petitioner's entitle ment is negatived, it is no concern of his to question transfer of the property to another person.

3. There is another aspect of the case. It has been stated before me that after the filing of the form by Imam Din on the basis of the allotment of his son Sardar Muhammad, the said Sardar Muhammad died, with the result that the allotment is to be considered to have enured for the benefit of all the heirs of this Sardar Muhammad. Father, under Muslim Law, is admittedly an heir of the son and, therefore, at the time of determination of entitlement Imam Din was not merely a claimant, he had also attained the status of an allottee having a preferential right as against the petitioner. Viewed from this angle also, the impugned order does not lack lawful authority.

4. For the reasons stated above, I find that the order of the. Settlement Commissioner calls for no interference. The writ petition fails and is dismissed, leaving the parties to bear their own costs. K. M. A. Petition dismissed.