1991 PLP 952 (CLC)

‑‑‑‑ Transfer of house in question in favour of respondent was challenged by petitioner on ground that petitioner was in possession of house and that respondent transferee had never been in possession of that house and as such same could not have been transferred to him ‑‑‑ Parties agreed that case required decision, as to which party was in possession of the house at relevant date i.e. 1‑1‑1961 as prescribed under Scheme and whoever was found in possession on said date would be entitled to transfer thereof ‑‑‑ With consent of parties case was remanded to Notified Officer for ascertaining that fact and pass orders on basis of findings in that respect. Ghulam Mahmood Qureshi for Petitioner, Ch. Rafiq Ahmad Bajwa for Respondent No.3. Date of hearing: 16th April, 1989. The dispute relates to a house transferred to respondent No.3 by the A.S.C. (L) Kharian vide his order dated 23‑5‑

73. The petitioner had challenged the same through revision petition on the ground that she was in possession of the house in question and the respondent No.3 had never been in possession of the house and it could not have been transferred to him. The respondent stated that the revision petition was barred by time and that the petitioner was not in possession of the house. The revision petition was dismissed by the Settlement and Rehabilitation Commissioner vide order dated 20‑1‑1976. Hence, this Constitutional petition.

2. A perusal of the order of the Settlement and Rehabilitation Commissioner, Rawalpindi Division, Rawalpindi shows that he was concerned with the nature of the house whether it was one or two, though he made observation in favour of the respondent about his possession. In the report called for from the Department, it has been stated that "it is correct that the appellant Mst. Nazir Begum and her husband are refugees from Jammu & Kashmir. The husband of the appellant has been a prisoner of war. The appellant had not given any proof about her case of 1958. It is correct that the evacuee house is in possession of the appellant. It is correct that the upper portion of the evacuee house has been in' possession of the Forest Department. It is also correct that P.T.O. was issued in the name of Muhammad Salim respondent No.3 and that the appeal of the appellant was dismissed by the Settlement Commissioner, Rawalpindi". Further "that at present the evacuee house is in possession of the appellant with her family". Both the learned counsel agree that the case requires decision regarding the possession of either party at the relevant date prescribed under the Settlement Scheme No.VlI i.e. 1‑1‑1961. Whoever was in possession on the said date would be entitled to transfer. If the petitioner was in possession/occupation of the house on the said date, the house shall be transferable to her. If, on the other hand, the answering respondent was in possession of the house at the relevant date, then the transfer in his favour has to A be made and maintained. Both the learned counsel submit that the matter may be remitted to the Notified Officer for ascertaining this fact. The submission is quite right and genuine. The matter is remitted to the learned Notified Officer, Gujrat to ascertain the fact regarding possession/occupation of either party, the petitioner or the respondent No.3 at the relevant date and pass orders on the basis thereof. In the circumstances, the parties are left to bear their own costs. The petition is thus disposed of. H.B.T./N‑435/L Order accordingly.