1970 PLP 435 (SCMR)

M. R. KHAN, J.‑The dispute in this case relates to an evacuee property, namely, residential building bearing No. E‑39‑2848, Hyderabad. The petition for special leave to appeal raises the following two questions :‑ (i) What exact portion of the disputed property has been transferred to Mst. Zainab Khatoon, respondent No. 5 herein. (ii) Whether the petitioner Mst. Kaneez Fatima's claim for transfer of the portion of the disputed property in her possession was rightly refused. The building in dispute consists of two floors. Its ground floor was occupied by Mst. Zainab Khatoon and one Muhammad Siddiq and the first floor was occupied by the petitioner and two others. Muhammad Siddiq who had applied for the transfer of the portion of the ground floor in his possession was given that portion. The other two occupants of the first floor withdrew their claim in favour of Mst. Zainab Khatoon. On the claim form submitted by Mst. Zainab Khatoon for the transfer of the entire building, an Appendix was issued in her favour on the 10th November 1959, in which the property was described as "First floor, and ground floor in possession". On the 19th November 1959, a P. T. O. was issued in favour of Mst. Zainab Khatoon. In this P. T. O., the property was described as follows :‑ "H. No. E/39.2848 Fort Area, Hyderabad (F. F. and G. F. in possession)." In the same P. T. O., the schedule of the transferee was given as follows :‑ "Name Son/daughter Address Share in property Mst. Zainab w/o Qazi F/39.2848 Portion in Zahoorul Hasan Fort Area possession". About 11 months after the issue of the said P. T. O. in favour of Mst. Zainab Khatoon, the petitioner submitted her C. H. Form for the transfer of that portion of the first floor of the disputed building which was in her possession. She contended that Mst. Zainab Khatoon was never in possession of any portion of the first floor and, as such, the transfer made in her favour (did not include the portion in possession of the petitioner. Mst. ,Zainab Khatoon resisted the petitioner's contention and took the ,stand that the entire building minus the portion of the ground .floor already transferred to Muhammad Siddiq was given to her by the Appendix and the P.T.O. issued in her favour. After series of unsuccessful litigations, the petitioner filed a review application which was allowed on the 8th January 1961, by Mr. Ghulam Shabbir, a Settlement Commissioner who was invested with the powers of the Chief Settlement Commissioner. Mst. Zainab Khatoon then moved Writ Petition No. 71 of 1962 questioning the order passed on the review application. The writ petition was dismissed, but, on appeal, this Court set aside the review order passed by Mr. Ghulam Shabbir and gave a direction to give effect to the previous order of Mr. Ghulam Shabbir passed in revisional jurisdiction on the 29th August 1961, unless that order was in the meantime set aside by due process of law. After the above direction by this Court, the petitioner refiled Writ Petition No. 7 of 1965 questioning the validity of the various orders of the settlement authorities refusing her claim for transfer of the portion of the building in her possession. Having taken into consideration the Appendix and the P. T. O. issued in favour of Mst. Zainab Khatoon, a learned Single Judge of the High Court dismissed the writ petition holding that the portion transferred to Mst. Zainab Khatoon included the portion in possession of the petitioner. The petitioner took a Letters Patent Appeal against the order dismissing the writ petition, but it ended in dismissal. The petition for special leave is directed against the order of the Letters Patent Bench. The admitted position is that Mst. Zainab Khatoon was not in possession of any portion of the first floor of the building, but the Appendix and the P. T. O. issued in her favour apparently relate also to the portion of the first floor said to be in her posses sion. As, however, Mst. Zainab Khatoon was not in possession of any portion of the first floor, there arises a legitimate question as to what exact portion of the disputed building was transferred to her by the Appendix and the P. T. O. This question requires construction of these and other relevant documents and merits consideration. The second question as to whether the petitioner is entitled to claim transfer of the portion of the first floor in her possession will depend upon the answer to the first question. Leave is, accordingly, granted to consider these questions. Security shall be in the sum of Rs. 1,

000. The paper‑book shall be made ready within two months. Status quo as to possession shall be maintained on condition of the petitioner's depositing rent with the Settlement Department at the rate of Rs. 20 per month by the 5th of every month. In default, the order maintaining status quo as to possession shall stand vacated. Leave to appeal granted.