P L D 1987 Supreme Court 107 (PLP)

SHAFIUR RAHMAN, J.‑Leave to appeal was granted to examine whether the Lahore High Court had while exercising constitutional jurisdiction under Article 199 of the 1973 Constitution at the instance and for the benefit of a party to a compromise justifiably by its judgment dated 17th of June, 1975, set aside the Permanent Transfer Deed issued to the appellant and required the disposal of the property afresh. Mr. P. N. Boga predecessor‑in‑interest of the respondents had been allotted 1, Canal Bank on 19‑12‑1954. He was a local. By an order dated 6‑12‑1957 the Rehabilitation Commissioner adjudged the accommoda tion allotted to Mr. P. N. Boga to be in excess of his need and entitlement and directed him to shift to a Flat 29, Laxmi Mansion which was allotted to him in lieu of this accommodation. The occupant of 29, Laxmi Mansion was the appellant, and he was allotted the property to be vacated by Mr. P. N. Boga. This order of the Rehabilitation Commissioner was communicated by a Deputy Settlement Commissioner in the following words‑ "Rehabilitation Commissioner, West Pakistan, Lahore, has been pleased to order that the accommodation in your occupation is in excess of your status and requirements. Therefore, your are kindly directed to shift to Flat No. 29 Laxmi Mansions, Hall Road, Lahore, within a week from the receipt of this notice and hand over possession of Bungalow No. 1, Canal Bank, to Mr. A. R. Khan under intimation to this office." Mr. Boga objected to this order and filed a revision petition before the Custodian under section 12 of the Pakistan Rehabilitation Act. It appears that some sort of understanding was arrived at between the parties contesting and the Custodian disposed of the matter by an order which reads as follows‑‑ "The parties have come to an agreement that the petitioner, Mr. P N. Boga, shall withdraw his petition for revision and the respondent Mr. A. R. Khan, to whom Bungalow No. 1, Canal Bank, Lahore, has been allotted by the Rehabilitation Commissioner shall take symbolic possession of the house. He is a refugee with a claim of more than a lac of rupees in respect of property left by him in India, Tehsil Batala. The flat occupied by him at present is situated in Laxmi Mansion which is a large property worth very much more than his claim. The value of Bungalow No. 1, Canal Bank, is commensurate with his claim and, according to the proposed legislation which has been published in the newspapers, he will be entitled to buy the house on Canal Bank by payment of 40 times its annual rent. The petitioner is a local without any claim and there does not appear to be any provision in the proposed legisla tion enabling the locals to purchase evacuee houses. They will, however, be entitled to remain in possession of evacuee houses for a period of three years by attorning to the new owners. It is urged that Mr. Khan will suffer a great loss if the allotment of this house in his favour is cancelled and the petitioner will gain nothing because Mr. Khan does not propose to disturb his possession as a tenant. The house was allotted to him in 1954 and he has been living there ever since without committing any breach of the conditions of allotment. He will remain in occupation as heretofore and continue to pay rent to the Rehabilitation Authority but after Mr. A. R. Khan has acquired the property the petitioner will attorn to him as a tenant. This is a fair and reasonable offer which is accepted by Mr. Boga and on these terms the petition for a revision is filed and consigned to the record room." Mr. A. R. Khan, the appellant first of all approached the Chief Settlement Commissioner with a copy of the order of the Custodian dated 26‑2‑1958 claiming the transfer of the property 1, Canal Bank. A letter was sent to him on I 1‑6‑1959 informing as follows‑ "It is pointed out that no decision can be given on your application at this stage. You are however advised to apply for the transfer of evacuee Bungalow No. 1, Canal Bank, Lahore, against your claim in accordance with Settlement Scheme No. I on the prescribed form to the Deputy Settlement Commissioner of the area concerned, basing your claim on Custodian Evacuee Property's order. This advice is without prejudice to the order which may be passed by the Deputy Settlement Commission, or any other competent authority concerned on merits and in accordance with law." On 30‑6‑1959 the appellant submitted `C.H.' form for the transfer of this property. The case was examined but he was not found in actual possession of the property and as such no determinative order was passed on this form. On the publication of notification dated 11‑8‑1960 entitling certain categories of allottees who had not actually obtained possession of the property allotted to them the appellant once again submitted a C.H. form on which his entitlement was determined on 11‑10‑1960 and a P. T. O. was issued to him in respect of 1, Canal Bank on 17‑10‑1960. It appears that in the meantime, Director, Enforcement, initiated an inquiry into illegality of the transfer in favour of the appellant but he was told by the Chief Settlement Commissioner on 28‑4‑1961 that he should not interfere in the transfer as it was valid and proper. The Settlement Commissioner (Policy) who communicated the directive of the Chief Settlement Commissioner also asked the Deputy Settlement Commis sioner to inform Mr. Boga that he should pay rent to Mr. A. R. Khan. This directive reads as follows:‑ "You may also inform Mt. P. N. Boga, occupant of Bungalow No. I Canal Bank, Lahore, that the house has‑ been transferred to Mr. A. R. Khan w.e.f. the date of the Provisional Order viz. 17‑10‑1960 and that he need not pay house rent to the Rehabilita tion Department w.e.f. that date. Any amount paid by Mr. P. N. Boga to the Rehabilitation Department, may also be refunded to Mr. A. R. Khan in due course." The notice was. issued to Mr. Boga by Deputy Settlement Commissioner on 14‑6‑1961. The appellant obtained the P. T. D. for the property in June, 1962. By a letter dated 19‑6‑1962 Mr. S. N. Alam addressed a demi‑official letter forwarding an application of his brother Shah Jamil Alam alongwith a C.H. form dated 16‑6‑1962 by him claiming this very property on the grounds indicated as follows‑ "Since the bungalow was allotted to my co‑occupant, Mr. Pheroza Boga, and we were enjoying good relations with each other, I did not apply for the transfer of the bungalow in my name. The latter tried to get the property. transferred in his name, but it could not be transferred to him as being a local he was not entitled to its transfer as it valued more than Rs. 10,

000. Consequently, the bungalow was illegally transferred to one Mr. A. R. Khan, who was neither an allottee of this bungalow, nor an occupant. As the property was neither given to him in open auction nor in bid (lottery) and as such its transfer to Mr. A. R. Khan was not in order the matter was reported to the Director of Enforcement for the cancellation of this illegal transfer and the case is under action there. I am approaching your honour for indulgence and request that my C.H. form‑in duplicate (enclosed) may kindly be admitted now in view of the position explained above and the transfer orders already passed illegally in favour of Mr. A. R. Khan be kindly cancelled and the bungalow be transferred in my name." The Chief Settlement Commissioner got the application of Shah Jamil Alam examined and informed the Inspector‑General of Police in the following words‑ "I am to refer to your Demi‑official Letter No. DMA/1097, dated the 19th June, 1962, on the subject noted above and to say that the bungalow in question was allotted to Mr. A. R. Khan in 1954. He initiated proceedings for securing possession of the house and the then Custodian (Justice A. M. Jan) decided the case in his favour and gave him symbolic possession. Such possession is recognized by law for the purpose of transfer of evacuee property. The bungalow in question has been correctly transferred to Mr. A. R. Khan. I, therefore, regret that the belated `C.H.' Form of Shah Jamil: Alam for the transfer of this bungalow cannot be admitted." On 29‑9‑1962 Mr. S. N. Alam, Inspector‑General of Police addressed another letter to Mr. Soofi, the then Chief Settlement Commissioner, and forwarded his own C.H. form dated 22‑9‑1962 claiming the transfer of this very property for himself. The Chief Settlement Commissioner negatived the claim by a letter dated 15‑10‑1962 and informed him so. On 16‑4‑1963 Mr. Boga addressed an application to the Rehabilitation Minister, Government of Pakistan, Rawalpindi, asking for the transfer of this property on easy instalments. At the behest of the Minister, the matter was examined and after' eliciting further information from Mr. Boga and by a letter dated 9‑9‑1963 Mr. Boga was informed that the property already stood validly transferred and he could not be transferred that property. Mr. S. N. Alam picked up the thread by filing two applications. One was expressed to be an application addressed to the Chief Settlement Commissioner seeking cancellation of the transfer in the name of the appellant on the ground that it was secured by misrepresentation and fraud in contravention of section 10 and section 16(i)(b) read with para. 1 of the Schedule 1 to the Displaced Persons (Compensation and Rehabilita tion) Act. The other was an application addressed to the Agriculture and Works Minister who had also the portfolio of Rehabilitation Minister, com plaining of this transfer. On the later application, his Private Secretary made the following remarks and passed it on to the Chief Settlement Commissioner‑ "Presented. to A. W. M. He has desired that C S & R C should kindly look into this case as early as possible and report the action taken by him for the information of A. W. M." The Chief Settlement Commissioner submitted a ‑report dated 11‑3‑1964 disclosing that Mr. A. R. Khan was given only a symbolic possession on the basis of which he was not entitled to the transfer of the property as no ejectment proceedings against Mr. P. N. Boga was pending. The act of the appellant in getting the flat transferred in favour of his mother on the basis of possession was also not justified if he was claiming possession of this property either on the definition of possession under sec tion 2(vi) of the Act or on the basis of the extended definition appearing from the notification of the Central Government. He, therefore, con sidered it to be a fit case for suo motu revision and directed Mr. S. M. Azhar to undertake it. In course of time this revision came to be disposed of by Mr. A. M. Siddiqui who then happened to be the Settlement Commis sioner. In these proceedings, Mr. P. N. Boga was impleaded as a party on 6‑5‑1967 as it appeared that he had also in the meantime on 10‑11‑1966 submitted an `LH' form for this very property a receipt of which was produced at the time of the hearing of the constitutional petition in the High Court. The Settlement Commissioner by his order dated 7‑6‑1969 held with regard to possession of the appellant and his entitlement to the transfer of this property as follows‑ "Thus, under the law with effect from the said compromise and with effect from the date of the order of learned Custodian, Mr. Khan acquired de jure possession of the said bungalow though he did not occupy the same. It has been held in P L D 1967 Lah. 419 that the word `possession' is wide enough to include constructive possession or possession in law, and there is no reason to limit its scope only to physical possession. It has been observed that physical posses sion is sometimes described by the word occupation and if the legislature intended to restrict the word `possession' to occupation, then it would have used that word, instead of the word `possession'. That being the position, Mr. Khan was entitled to the transfer of the said bungalow, under Settlement Scheme No. 1, and it was not necessary that his case should be cove; ed by the Press Note dated 9‑9‑1960. Therefore, insofar as the transfer of the said bungalow in favour of Mr. A. R. Khan, is concerned, it does not suffer from any illegality. I hold accordingly." He held Mr. S. N. Alam to be not entitled to its transfer. Finally, as regards Mr. Boga's claim, it was found to be untenable and further the transfer obtained by the mother of the appellant of the flat in Luxmi Mansion was held to be open to further inquiry on the reasoning expressed as follows :‑ "Mr. Khan being the allottee of the said flat and having surrendered the same, it was not‑, open to him to give no objection in respect of the said flat in favour of his mother. In fact under the law he could no longer be deemed to be in possession of the said flat, and for that reason, his mother too could not claim this flat on the basis of her possession or the possession of her son. The transfer of the said flat in her favour, therefore, calls for scrutiny. The D. S. C. concerned should look into the matter and refer the matter to the learned Chief Settlement Commissioner for suo moto Revision, if a case is made out against her in this behalf." A constitutional petition was thereupon filed by Mr. Boga challenging the revisional order of the Settlement Commissioner dated 7‑6‑1969 on the ground that the transfer of the bungalow in favour of the appellant was illegal and that his own L.H. from could not in the circumstances be refused consideration. In the High Court the appellant raised a number of preliminary objec tions to the competence of the constitutional petition. The one which is of importance at this stage was that of estoppel in view of the compromise arrived at between the parties, reflected in the order of Custodian, repro duced above, and the fact that not only the parties but the Settlement Authorities had acted on it and adjusted their rights and 'obligations in respect of this property accordingly. This objection was disposed of by the High Court in the following words :‑‑ "The objection of the estoppel also does not seem to be of much consequence. The time when the revision petition of the petitioner came up before the learned Custodian the draft Legislation of Displaced Persons (Compensation and Rehabilitation) Act had been published. Mr. A. R. Khan thought that if he lost the allotment he shall lose much. According to him the retention of the allotment would give him symbolic possession and thus a right to the transfer of the property. This position is, however, not borne out from the order. The learned Custodian maintained the allotment of the petitioner by saying that he will remain in occupation as heretofore and continue to pay rent to the Rehabilitation Authority. The petitioner was to attorn to the respondent only after he acquired the property. These observations are sufficient to disspel any doubt creeping in the mind of the respondent that either he remained an allottee or that he bad even a symbolic possession. The petitioner retained his possession as an allottee since 1954 on the same terms and conditions under the Rehabilitation Authority and not under the respondent. The Settlement Commissioner also reached the conclusion that the respondent's case was not covered by the notification giving fictional possession to such persons who after obtaining allotment were out of possession due to no fault of theirs' and that ejectment proceedings were pending against the occupant on the date of the notification. The Custodian, therefore, neither gave the symbolic nor the constructive possession. The actual as well as legal possession remained with the petitioner and the respondent never got possession of the property in any capacity whatever. There was, therefore, no question of estoppel." The appellant was held not to be in such possession of 1, Canal Bank as could entitle him to seek its transfer and the reasoning by which this conclusion was drawn was as follows‑ ‑ "The learned Custodian never gave him any type of possession nor even symbolical. Rather, he maintained petitioner's original position by saying, `He will continue in possession as heretofore and continue paying rent to the Rehabilitation Authorities . . . .' The only mode of which an evacuee property could be transferred to the respondent was either on the basis of possession, earmarking Scheme, or association or auction. Transfer in favour of respondent is thus not supported under any provision of law . . . . . In any case the contention of the learned counsel for the respondent that his client was in symbolic possession of the property in dispute in view of the order of the learned Custodian and that he had a right to ask for the transfer of the property on that basis is not correct." The appellant was also found by the High Court to have abandoned his claim to 1; Canal Bank on the reasoning appearing hereunder‑ "Further, if the respondent was relying on the allotment made by the Rehabilitation Commissioner then he ought not to have claimed any right with regard to 29 Lakshami Mansion, which he got transferred in the name of his mother. The respondent could not be deemed to be in possession of the two properties under the order of the Rehabilitation Commissioner or the learned Custodian. He was an allottee of any one of the two properties and not of both. If the thought that the two orders entitled him to the transfer of 1‑Canal Bank, he could not allow the other to be transferred to his mother as he could not be deemed to be in possession thereof. He, therefore, had only one property in possession and would be deemed to have abandoned his right to the other if he claimed any . one. Having availed of his possession with regard to Lakshami Mansion Flat the respondent shall be deemed to have given away his claim, if any, with regard to the 1‑Canal Bank." The respondent was held by the High Court to be a claimant allottee not in possession of the property and hence not entitled to transfer of the property under Settlement Scheme No.

1. The P. T. D. obtained by him was held to be without lawful authority and of no legal effect. The pro perty was held to be available property and the from N. C. H. under Settlement Scheme No. VIII filed by the respondent was deemed to be pending requiring disposal according to law. Mr. Amer Reza Khan, Advocate, the learned counsel for the appellant, has taken us through the history of property in dispute to highlight the facts that Mr. Boga had been ordered to hand over possession of the pro perty to appellant (DSC/DRO order dated 6‑12‑1957) and it is Mr. Boga who had filed a revision before the Custodian under section 12 of the Rehabilitation Act, 1956. A compromise effected by the parties and approved by and incorporated in the order of Custodian dated 26‑2‑1958 came into existence. Under it Mr. Boga withdrew his revision petition, allotment of the property to the appellant was allowed to stand. He was also given symbolic possession of the property, both the parties were to physically remain in their respective properties and on its transfer to the appellant, the respondent was to attorn to him as tenant. Not only this compromise was perfectly lawful, according to the learned counsel for the appellant,, it was acted upon by all the parties to it, including the Rehabili tation and Settlement Authorities. The respondent raised no claim to it, the appellant applied for it and the Settlement Authority issued P.T.O. to the appellant on 17‑10‑1960. When at the instance of Mr. S. N. Alam, I: G. P. the legality of the transfer was questioned and an inquiry was held by Mr. Najjaf Khan, Director Enforcement, the Chief Settlement Commis sioner by his order dated 28‑4‑1961 held the transfer to be valid and directed the Enforcement Staff not to interfere.‑ At the same time, the respondent was asked to pay rent to the appellant from 17‑10‑1960. P. T. D. was also issued to the appellant in June 1962. In October 1961, the appellant initiated proceedings for the ejectment of the respondent from this property. In this background, the successive unsuccessful enquiries into the transfer of the property to the appellant were all misconceived and the respondent could not on the basis of belated L. H. form claim a locus standi to challenge the transfer or to claim the property for himself nor could the property be considered to be available property. the learned counsel has relied upon the decisions of this Court in Allah Bakhsh v. Muhammad Ishaque (1), Muhammad Afzal v. Muhammad Yusuf (2), Muhammad lqbal v. Abdur Rahim (3), Munir Ahmad v. Noor Muhammad (4), Ghulam Rasool v. Settlement and Rehabilitation Commissioner (5) and Khawaja Masood v. Ameer Bakhsh (6). The learned counsel for the appellant has also referred to various decisions of this Court to emphasize that compromise between the parties is a lawful method of disposing of a matter brought before a Tribunal or Court and that it has sanctity and efficacy. In particular he referred to the decisions in Abdur Rahman v. Said Muhammad (7), Amanullah v. Abdul Ghani (8), Arokey Ltd. v. Munir Ahmad Mughal (9), Ghulam Hussain v. Zahoor Din (10). It is also contended that having obtained a benefit under the compromise of keeping intact his physical possession over the property notwithstanding an order of ejectment lawfully passed against him he cannot be allowed on the principle of approbate and reprobate to deny his liabilities under the very compromise from which he has benefited. In this context reliance has been placed on the two decisions of this Court in Muhammad Sharif v. Chief Administrator, Auqaf (11) and Sh. Muhammad Yousaf v. Muhammad Bashir Ahmad (12). As regards the question of possession, the learned counsel for the appellant submitted that under the agreement and the order of the Custodian symbolic possession had been delivered to the appellant and the occupants of the premises, had duly recognized it and in view of such an agreement the position of the respondent would be that of a mere licensee and a licensee would not be legally in a position to set up a claim adverse or against the licensor or in himself. Reliance has been placed for this proposition on the decisions *of this Court in Atta Muhammad v. Taj Muhammad (13) and Muhammad Sadiq v. Ajam Khan (14). (1)PLD1984SC47 (2) 1984SCMR296 (3) N L R 1979 Civil S C 678 (4) 1982 S C M R 1038 (5) 1980SCMR921 (6) 1976SCMR8 (7) 1982 S C M R 373 (8) 1980 S C M R 573 (9)PLD1982SC204 (10)PLD1980SC146 (I1) 1975 S C M R 104 (12) 1986 S C M R 348 (13) 1974 S C M R 346 (14) 1978 S C M R 214 Mr. A. R. Sheikh, Advocate, the learned counsel for the respondent has doubted the very legality of the Custodian's order dated 26‑2‑1958 giving effect to the compromise on the ground that it went beyond the agreement, it anticipated the future legislative will, talked of handing over of symbolic possession, a feature not recognized by section 2(6) of the Act. The appellant was allowed to continue to have the allotment as well as possession of flat which he was to surrender to the respondent thereby contravening provisions of The Evacuee Property (Multiple Allotments) Act, 1957. In fact the appellant availed of' his possession over a garrage attached to the flat for obtaining its transfer in the name of his mother. All these factors resulted in (i) the compromise order of the Custodian creating no rights and obligations as held in E. Y. Mamsa Bros. v. A. E. Sallayjee (1) and Stcuart Bc Co. Ltd. v. C. Mackertich (2), (ii) the handing over of symbolic possession to the appellant was of no avail to him as it did not quality as possession under section 2(6) of the Act, even under the extended definition to entitle him to claim the property as held in Altaf Hussain v. Chief Settlement Commissioner (3), Abdul Jabbar v. Abdul Waheed (4), Muhammad Ismail v. Chief Settlement Commissioner (5), Attaul Haque v. H. Malik Electric Co. (6), Barkat All v. M. S. Zaman (7), and Barkat Ali v. Additional Settlement Commissioner (8), (iii) by opting to get the flat for the mother on the basis of his own possession over it, the appellant abandoned hi' s claim to this property. He cannot himself approbate and reprobate. Reliance is placed on the decision in Shad! Khan v. Settlement and Rehabilitation Commissioner (9). Finally, the learned counsel for the respondent pointed out that the equities of the case were now more in favour of the respondent than of the appellant because subsequent proceedings show that after the High Court's judgment the Deputy Settle ment Commissioner held on 31‑8‑1976 the respondent entitled to the transfer of this property. The respondent paid the full price and transfer order was made out on 19‑3‑1978. The Leave Granting Order only prohibited alienation and not these steps which were taken. The learned counsel forcefully pleaded for maintaining the impugned order of the High Court. (1) 46 1 C 609 (2) A I R 1963 Cal. 198 (3)PLD1965SC68 (4)PLD1974SC331 (5) P L D 1973 S C 7 (6) P L D 1971 Lah. 1007 (7) P L D 1968 Lah. 770 (8) 1972 S C M R 293 (9) P L D 1972 Lah. 262 As the controversy between the parties has its roots in the compromise order sanctified by the Custodian on 26‑2‑1958 it is necessary first to examine generally and then particularly the value and efficacy of such a compromise in the legal system. American Jurisprudence; Volume 11, page 249 accords the following value to a compromise :‑‑‑ "The law favours the amicable settlement of controversies, and it is the duty of the Courts rather to encourage than to discourage the parties in resorting to compromise as a mode of adjusting claims. The nature or extent of the rights of each should not be too nicely scrutinized. Courts should, and do, so far as they can do so legally and properly, support agreements which have for their object the amicable settlement of doubtful rights by parties, the consideration for such agreements is not only valuable but highly meritorious. Because they promote peace, voluntary settlement of differences between parties having legal capacity to contract in respect of their rights, where all have the same knowledge or means of obtaining knowledge concerning the circumstances involving their rights and where there are no fraud, misrepresentation, concealments or other misleading incidents, must stand and be enforced if intended by parties to be final, notwithstanding the settlement made might not be that which the Court would have decreed if the controversy had been brought before it for decision." "A valid compromise agreement has the same force and attributes of a judgment of Court, and is final and conclusive between the parties as to the matter included. Ordinarily, the agreement is not subject to collateral attack" (15 A C J S 233). In 31 American Jurisprudence 107 the following observations have been made with regard to judgments delivered with consent of the parties :‑ "The fact that a judgment is rendered by consent gives it neither less nor greater force or effect than it would have had it been rendered after protracted litigation, except to the extent that the consent excuses error and operates to end all controversy between the parties. In this connection, it has been declared that a judgment by consent estops the parties from denying the facts it purports to establish. On the ground that where a judgment is rendered pursuant to a previous parol agreement the rendition of the judgment puts an end to the agreement, it has also been held that the party in whose favour the judgment is rendered is estopped from saying that it does not accord with the previous contract." In Somasundaram v. Subramanian (A I R 1926 P C 136), it was held that:‑ "Legal judgments cannot be treated as mere counters in the game of litigation. They are serious pronouncements, for the most part by the judicial officer of the State, touching the rights of disputes of subjects, bringing home to those subjects what the rule of justice required and are enforcible, if need be, by the forces of the State. Moreover, when once pronounced, they cannot be lightly set aside." The respondent in his constitutional petition took up the ground (para. 9(xi) ) that "for the purposes of the transfer of the property in dispute under the Displaced Persons (Compensation and Rehabilitation) Act 1958, the order of the Custodian would be deemed to be a non entity. Even otherwise the question of transfer had to be dealt with under relevant statute which, it is submitted, was the Displaced Persons (Compensation and Rehabilitation) Act, 1958". This averment amounts to repudiating the very compromise to which the respondent was a party. It amounts to his setting up the statute against his own act. In constitutional jurisdiction on no principle known to law he could be permitted to do so. In a recent decision Sh. Muhammad Yousaf's case, this Court has held that where a party persuaded a Tribunal to adopt a particular course for determining the question in issue and accepts the benefits of such an arrangement its cannot be permitted to repudiate it when it comes to the obligations and liabilities thereunder. Spencer Bower and Turner (Estoppel by Represent ation, 1977 Edition, page 361) comment on the law on the subject in the following words :‑ "It appears to follow from principle that in such a case (in which elector has taken judgment) the action of the elector in signing judgment based on one of two available courses of action must produce a situation from which there can be no retreat. One of the two inconsistent rights has been chosen, and his right‑transit in rem judicatam‑has been transmuted into judgment of the Court." In Principles and Digest of the Law of Evidence by M. Monir, Volume II, page 1245 the following comments find a place :‑ "Estoppel by accepting benefit under a judgment, order, decree, agree ment, or other arrangement.‑When a deed confers on a person certain benefits burdened with certain obligations, that person has the right to elect whether be would take the benefits under the deed or not. If be does elect to take the benefits under the deed, he must also, bear the burdens created thereby. The law does not permit him to retain the benefits and to repudiate the burden. If a party accepts the benefit of a judgment, some authorities hold that he will be estopped to appeal from it, to dispute the Court's jurisdiction, or otherwise to deny its validity and force. On the other hand, if a party declines to accept a judgment or decree in his favour and seek another, he will not be permitted to claim the first, on the second one turning out less favourable to him. A party who has adopted an order of the Court and acted under it cannot, . after he has enjoyed a benefit under the order, contend that it was valid for one purpose and invalid for another. Where a person allows an irregular order to be passed and obtains benefit thereunder, he cannot say that it should be set aside, particularly when the parties cannot be placed in their original position. Where a person accepts a benefit under a decree or an order of a Court, he is estopped from challenging that order by appeal; but this principle is not applicable where the benefit accepted would in any case be his whether the appeal succeeded or failed, as for instance, where the plaintiff accepts some instal ments under a decree payable by instalments, or where the acceptance of the benefit is not voluntary and the benefit is forced upon him by the Court, and notwithstanding his protest. A party accepting a benefit under' a compromise, an award, or a partition, is estopped from questioning the transaction." In A I R 1933 P C 167 the law was enunciated in the following words :‑ "It is a well‑accepted principle that a party cannot both approbate and reprobate. He cannot to use the words of Honeyman, J., in Smith v. Baker (S C 350) at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby; obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose) of securing some further advantage. See also per Lord Kenyon, C. J., in Smith v. Hodson (2 Sm. L C 140)." The learned Judge in the High Court has not treated the compromise as incorporated in the Custodians order a non‑entity. On the other hand,, the learned Judge, treating it to be operative and valid, has proceeded to interpret it. In interpreting it, the learned Judge has, with utmost respect to him, over emphasized one recital by tearing it out of the context, giving it a meaning and amplitude which it did not have nor could it have. The recital was three times reproduced in the judgment in the words that "the learned Custodian maintained the allotment of the petitioner by saying that he will remain in occupation as heretofore and continue to pay rent to the Rehabilitation Authority". This was interpreted to moan "these observations are sufficient to dispel any doubt creeping in the mind of the respondent that he remained an allottee or that he had even a symbolic possession". Again the learned Judge re‑emphasized the conclusion by observing, "The learned Custodian never gave him any type of possession nor even symbolic. Rather, he maintained petitioner's original position by saying "he will continue in possession as heretofore and continue paying rent to the Rehabilitation Authorities". These crucial observations of the Custodian are preceded and controlled by more peremptory ones that "(i) The petitioner P. N. Boga shall withdraw his petition for revision" (ii) Mr. A. R. Khan "shall take symbolic possession of the house". (iii) Mr. A. R. Khan "will be entitled to buy the house on Canal Bank by payment of 40 times its annual rent". (iv) "Mr. Khan does not propose to disturb his (P. N. Boga's) possession as a tenant". It is thereafter that it is mentioned "he will remain in occupation as heretofore and continue to pay rent to the Rehabilitation Authority" and then continues to mention. (v) "after A. R. Khan has acquired the property the petitioner shall attorn to him as a tenant". (vi) This is a fair and reasonable offer which is accepted by Mr. Boga on these terms". In Broom's Legal Maxims that following comments at page 389 is of interest and relevant :‑ "It is an important rule of construction that the meaning of the parties to any particular instrument should be collected ex antecedert tibus et consequentibus ; that is to say, every art of it should be brought into action, in order to collect from the whole one uniform and consistent sense, if that may be done ; or, in other words, the construction must be made upon the entire instrument, and not merely upon disjointed parts of it ; the whole context must be considered, in endeavouring to collect the intention of the parties, although the immediate object of inquiry be the meaning of an isolated clause. In short, the law will judge of a deed, or other instrument, consisting of divers parts or clauses by looking at the whole; and will give to each part its proper office, so as to ascertain and carry out the intention of the parties." In the case of Allah Bakhsh and another, this Court held that :‑ 'An elementary principle applicable to all cases of interpretation of documents is to read the document as a whole, to differentiate between the general statements and particular statements contained therein and to exert and attempt to save the document rather than destroy or nullify it." We regretably observe that the interpretation of the learned Judge has not only the effect of nullifying the order of the Custodian but also of the withdrawal of the revision petition, and of all the commitments made and undertakings solemnly given by the respondents in order to protect and prolong his physical possession, over the property. He was the last person who should have been permitted in the constitutional jurisdiction to challenge, repudiate or avoid it. On the same principles, the respondent could have no locus standi to challenge the transfer of this property to the appellant. On the contrary, he had a legal duty, apart from section 30 of the Act, to attorn to the appellant as transferee of the property. The Settlement authorities had competently disallowed his claim as against that of the appellant, not only because it was preferred late but also because there was a supervening covenant binding the parties. As regards the question of possession under the Act, qualifying the appellant for transfer of the property, as between the parties the respondent was clearly estopped from denying that (i) the appellant was allottee of that property (ii) the appellant was given the symbolic possession of it and that (iii) respondent was in occupation of it with the permission/ licence of the appellant duly approved by the Custodian. On these facts being established the appellant was entitled to transfer of the property because his possession was undisputed, being through, the licence approved by the Custodian. The learned Judge, again with utmost respect to him, was in error in invoking the law laid down in Barkat ,91i's case to sustain the claim of the respondent on the question of possession. In Barkat Ali's case there was no compromise between the parties. Barkat Ali's allotment itself was held to be "wholly void" leaving "no doubt in my mind that there is no valid allotment in favour of the petitioner nor he can build any claim on the basis of any such allotment for the transfer of the house . , , , Needless to say that this notification envisages a valid allotment order and not an order which is void ab initio, as issued in favour of the petitioner in this case". The allotment order of the appellant was challenged by the respondent before the Custodian but he withdrew that revision petition. Thereafter, there was no challenge to it. There was no occasion for the learned Judge to question it, to doubt its validity and propriety in passing, so casually, and by reference to Barkat Ali's case. Finally, the question of the appellant abandoning his claim to this property by opting for the other, the learned Judge has made a mention of the decision of this Court in Azizur Rehman's case (PLD1972SC52) in support of his conclusion. In that case a claimant displaced person had, after filing C. H. form for a house, opted to participate in the earmarking scheme after making an express declaration, as required, withdrawing the C. H. form whereupon she was held bound by her choice. This doctrine of waiver,! election, or abandonment, has defined limits. As pointed out by Spencer's Bower and Turner (The lam, relating to Estoppel by Representation 1977 edition page 314) it is of essence of election that the party electing shall be "confronted" with two mutually exclusive courses of action between which he must, in fairness to the other party, make his choice . . . . .In all cases to which the doctrine of election applies the elector has the choice of two rights either of which he is at liberty two exercise, but not both. The rights between which he has a choice must be mutually exclusive. Obviously. there can be no election, choosing one course to the exclusion of another, when in fact there is only one course to take, or where the two courses are such that the adoption of one of them does not necessarily indicate a final intention to abandon the other (ibid p. 342). . . it is easy to agree with the proposition that in the case of election between two courses of action it is necessary to communicate the decision to the other party concerned, and for him to change his ground relying on the election, before the elector or representor will be finally bound". (ibid p. 356). The very first requirement of law, viz, the choice between two mutually exclusive alternatives was lacking in this case for it cannot be said that the appellant could on the strength of his physical possession over the flat allow either himself or anyone else to obtain transfer .of any property. The compromise order sanctified by the Custodian competently shut out any such alternative, closed the door for any of the parties to choose, revoke or retreat. The principle was not attracted at all, and this is the distinguishing feature which makes the decision in Azizur Rehman's case wholly inappli cable. There is no question of equities pending litigation interfering with merits of the adjudication. The upshot of the above discussion is that the appeal must succeed and the order of the Rehabilitation and Settlement Authorities impugned in Constitutional jurisdiction is restored. The appeal is allowed with costs, the writ is recalled and the constitutional petition filed by the respondent stands dismissed. S. Q. Appeal dismissed.