P L D 1968 Lahore 1398 (PLP)

ATAULLAH SAJJAD, J.‑

The present writ petition is directed against the order of the Additional Settlement Commissioner, Multan and Bahawalpur Divisions, respondent No. 6, dated the 13th of December 1962, and that of the Settlement Commissioner, Multan Division, Multan, respondent No. 5, dated the 6th December 1963, whereby they refused to transfer properties Nos. 28, 29 and 30/E‑VII, along with a number of quarters situated in Civil Lines, Sahiwal, to the petitioner. The Settlement Commissioner held that the petitioner was entitled to the transfer of a portion of house bearing property No. 28/E‑VII and the rest of the property was transferred to respondents Nos. 1 to

4. The details of these transfers will be found in a latter part of this order.

2. A perusal of the appellate order of Brigadier Altaf Hussain, Additional Settlement and Rehabilitation Commissioner, Sahiwal, dated the 28th of May 1960 (Copy Annexure `H') would show that the whole property covers an area of over 30 kanals and was jointly owned by nine evacuees. Two portions of the property were used as offices of the District Taxation Officer and the District Food Controller, two other portions were occupied by the owners and the rest by five other persons. It is also mentioned in the order of Brigadier Altaf Hussain, referred to above, that the quarters were separately leased out in prepara tion days.

3. It would be necessary to describe the position of this property at the time, when the impugned orders were passed. A Part of property No. 28/E‑VII was in occupation of Sardar Abdul Aleem, petitioner, and the rest was used as the office of the Chief Cotton Inspector. Property No. 30/E‑VII was partly in occupa tion of Ch. Abdur Rahim, respondent No. 1 and a part of it was used as office of the District Food Controller. Property No. 29/E‑VII, which is described as an annexe was in possession of Mr. Iqbal Mahmood, P. C. S., a Magistrate posted at Sahiwal.

4. Malik Ghulam Jillani, Deputy Settlement and Rehabilita tion Commissioner, Sahiwal, by his order, dated the 29th February 1960 (Copy Annexure 'E') transferred to the petitioner the portion which was in his possession. Similarly Abdul Rahim, respondent No. 1, was transferred the portion which he occupied. The por tions of Units Nos. 28/E‑VII and 30/E‑VII, which were in possession of the Chief Cotton Inspector and the Food Department were placed in the earmarking pool. The annexe and the quarters were held to be separate units. We find from the above order that annexe bearing property No. 29/E‑VII bad also been placed in the earmarking list and at the time the above order was passed had been transferred under the earmarking scheme to Mr. Feroze Din Rohilla who died later on and whose legal representative Mr. A. R. Rohilla has been impleaded as respondent No. 3 in this writ petition. This transfer was contested before the Deputy Settlement Commissioner by Mr. Iqbal Mahmood the previous occupant but without any success. The quarters were also held to be a distinct portion and were transferred to their occupants on evaluation basis. These occupants have also been impleaded as respondents at No.

4. The transferee of the portions of main bungalow acre to get land equal to three times the plinth area of the residential portions transferred to them.

5. Sardar Abdul Aleem filed an appeal against the above order of the Deputy Settlement Commissioner, Sahiwal, which was disposed of by Brigadier, Altaf Hussain, Additional Settlement and Rehabilitation Commissioner, by his order dated the 28th of May 1960, referred to in para. 2 above. The learned Additional Settlement and Rehabilitation Commissioner passed an elaborate order and came to the following conclusion :‑-- (a) That the annexe transferred by earmarking should remain with its transferee. (b) That the portions of the bungalow which were with the Chief Cotton Inspector and the District Food Controller should remain in the earmaking list as directed by the Deputy Settlement Commissioner. (c) That the portion transferred to respondent No. I in these proceedings should remain in tact. (d) Servant quarters were held to be divorced from the main building and the order regarding their disposal to the various occupants was upheld. (e) A Hall and a Porch were taken from the portion in occu pation of the Chief Cotton Inspector and were given to the present petitioner in addition to the portion already transferred to him. Two days after this order had been announced the portion occu pied by the Chief Cotton Inspector in Unit. No. 28 was trans ferred to Sheikh Taj Din respondent No. 2 minus the Hall and the Porch. The portion in possession of the District Food Controller in Unit No. 30 fell to the share of one Muhammad Zaman who proved later on to be a fictitious person.

6. The petitioner, Mr. Iqbal Mahmood occupant of the annexe, and Sheikh Taj Din the transferee by earmarking of a portion of Unit No. 28 filed revision petitions before the Settlement and Rehabilitation Commissioner, Multan and Bahawalpur Divisions. These petitions were disposed of jointly by an order dated the 4th of May 1961. Mian Ghulam Shabbir the learned Settlement and Rehabilitation Commissioner, remanded the case to the Additional Settlement Commissioner for fresh decision as according to him the Settlement Authorities had not been able to ascertain how many independent units could be made out of the property and who were the persons in possession of the same. The learned Settlement Commissioner observed that the disposal or the portions of the property at different times was irregular. He, therefore, directed that the claims of the occupants and the claimants for the property should be considered at one and the same time before the disposal of the property.

7. The case after remand came before Mr. Saeeduddin Khan, Additional Settlement and Rehabilitation Commissioner, Multan and Bahawalpur Divisions, who disposed of the same by order dated the 13th of December 1962 (Copy Annexure `M'). He found it doubtful whether Sardar Abdul Aleem, the present peti tioner had at all applied for the transfer of the three units of the property. After examining the claims of the various contestants he transferred the entire Unit No. 28/E‑VII to the present petitioner. Since Muhammad Zaman the transferee by ear marking of a portion of the Unit bearing No. 30/E‑VII had not come forward, that portion was given to Sh. Taj Din, respondent No. 2 in lieu of the portion of Unit No. 28 which has been taken away from him as a consequence of the above order. The orders regarding transfer property to Ch. Abdul Rehim and Feroze Din Rohilla were kept in tact. The servant quarters were also transferred in terms of the order of Brigadier Altaf Hussain referred to above.

8. The petitioner Sardar Abdul Aleem filed an appeal against this order but it appears from the impugned order of the Settlement and Rehabilitation Commissioner (Copy Annexure `O') dated the 6th of December 1963, that he treated it as a revision petition. Ch. Abdur Rahim respondent No. 1 and Sh. Taj Din respondent No. 2 also filed revision petitions against this order. The Settlement Commissioner inspected the spot and found some defects in the plan of the property prepared by the Settlement Authorities. He also found that the division of the gallery between the various occupants was very unnatural and was likely to cause great inconvenience to the occupants. He accepted the contention of Sh. Taj Din that he should not be deprived of that portion of property No. 28/E‑VII which had been transferred to him in the earmarking process. He, therefore, modified the order of the Additional Settlement Commissioner in so far as it related to property No. 28/E‑VII and restored to Sheikh Tai Din that portion of the property in Unit No. 38 which was in posses sion of the Chief Cotton Inspector. The transfer in the name of Ch. Abdur Rahim was kept in tact and the portion of property No. 30/E‑VII which had become available for transfer as a result of restoration to Sheikh Taj Din of the portion originally trans ferred to him in Unit No. 28/E‑VII, was also transferred to Ch. Abdur Rahim. The transfer of annexe was upheld and similarly the order with regard to the transfer of the quarters was maintained. It was found that the quarters had a separate entrance and that the gate of Sardar Abdul Aleem was separate from that of Abdur Rahim.

9. The petitioner, therefore, filed the present writ petition in which he has reiterated his claim to all the three units of the property including the quarters.

10. During the pendency of this writ petition 19 persons were impleaded as respondents on an application moved by Mr. Fazal Elahi Jaffari, Advocate. These persons claim to have built houses on the land attached to this property and it was stated before us during the hearing that they bad applied to the department for the transfer of these plots under Scheme VI. Their cases, we were told are still under consideration of the Settlement Authorities.

11. The case on behalf of the petitioner was argued by A. G. Chaudhry, Advocate, and then by the petitioner himself. It was stated that the portions bearing property Nos. 28, 29 and 30/E‑VII, were actually the units of one property and since Sardar Abdul Aleem the petitioner was the only person in occupation of a part of the property he was entitled to the transfer of the whole of it. It was also asserted that the allotment in the name of respondent No. 1 being beyond the powers of the Rehabilita tion Authorities, his possession is not in accordance with law and, therefore, he is not entitled to the transfer of this property. As regards Sh. Taj Din it was asserted that actually an appeal lay to the Settlement Commissioner against the order of Mr. Saeedud din Khan, dated the 13th of December 1962, and since Sh. Taj Din had not filed an appeal within time but had filed a revision petition which was not competent, his case should not have been considered by the Settlement Commissioner. It was asserted that the quarters were appurtenant to the main building of this property and should have been transferred to the transferee instead of being transferred to various occupants.

12. We have considered all these arguments very carefully and we have not been able to persuade ourselves to accept the claim of the petitioner to the whole property.

13. It has been stated above that even during the pre independence days two Government Offices and 2 owners used to occupy this premises apart from five others who might be the occupants of some portions of main building or the quarters. The Settlement Commissioner who inspected the spot found that the servant quarters were not a part of the building. Similar was his opinion about annexe which bears No. 29/E‑VII. He also found that portion bearing No. 30/E‑VII was a separate residential unit. The order of Brigadier Altaf Hussain (Annexure 'H') shows that servant quarters were rented even during pre partition days and formed a separate unit of the property.

14. We may deal here with the contention raised with regard to the competency of the revision petition of Sheikh Tai Din before the Settlement Commissioner. It was argued that instead of a revision petition Sheikh Taj Din should have filed an appeal against the order of Mr. Saeeduddin Khan, Additional Settlement Commissioner. The argument is misconceived. It was open to the Settlement Commissioner to remand the case either to the Court of original jurisdiction or to the appellate Court. The mere fact that the appellate Court as a result of the remand order passed a fresh order of transfer would not convert .q it into a Court of original jurisdiction. In our opinion only a revision lay before the Settlement Commissioner against the order of Khan Saeeduddin Khan, Additional Settlement Commissioner dated 13th of December 1962.

15. The only question which f n our opinion falls for determination In this case is whether it was permissible to the Settlement Authorities to transfer a part of Unit No. 28/E‑VII, when admittedly the present petitioner had applied for its transfer and there was no other claimant in the field so far as this unit was concerned. Reliance was placed by the petitioner on the case of Jalil Ahmad v. The Settlement and Rehabilitation Com missioner, Hyderabad and another (P L D 1962 Kar, 197) wherein it was held that the power of the Settlement Authority to divide property and transfer portions separately can be exercised only to adjust claims of more than one applicant and that such power cannot be exercised with the object of earmarking properties for disposal by unrestricted public auction. This was a case of composite property and a Division Bench of this Court in the case of Haji Muhammad Hanif v. Chief Settlement and Rehabilitation Commissioner and others (P L D 1964 Lah. 261) had occasion to dissent from the view taken by the learned Single Judge in the Karachi case referred to above but a minute reading of the Lahore case would show that the dissent was restricted to composite property and the Bench tended to agree with the view taken in the Karachi case so far as residential property was concerned. We would like to quote the relevant portion which finds place at page 263 of the report:‑-- " It is obvious that unless the Chief Settlement Commis sioner decides to treat the whole or any part of the building as a house or a shop, the two portions are to be disposed of separately, one as a house and the other as a shop, according to their definition in section 2, clauses (4) and (12). The division of a house or a shop, of course, stands on a different footing. As observed by the learned Judge, the power to divide them may be exercised only to adjust the claims of more than one claimant, non‑claimant or a local; otherwise the whole of the house or shop, although it consists of more thaw one unit in occupation of different persons, is to be 'disposed of as one." A reference to the order of the Deputy Settlement and Rehabili tation Commissioner dated the 17th of October 1959 (Copy Annexure `E') passed in an appeal filed, by the present petitioner against the allotment in favour of respondent No. 1 would reveal that out of Unit No. 28/E‑VII three rooms, one store‑room and a bath‑room were allotted to the present petitioner. It also appears from this order that the officer making the allotment was conscious of the fact that this accommodation was neither sufficient nor commensurate with the standard of life of the petitioner "who is a lawyer and a respectable refugee." None of the Settlement Authorities have declared the property in possession of the petitioner to contain more than one residential unit. Mr. Ghulam Jilani, Deputy Settlement Commissioner in his order dated the 29th of February 1960 (Copy Annexure 'E') had observed that the bungalow by which he meant Units Nos. 28/E‑VII and 30/E‑VII could easily be divided into four portions. He, however, gave no indication as to how this division could be made. The learned Additional Settlement Commis sioner, Khan Saeeduddin Khan, also did not advert to this aspect of the case although the case had been specifically remanded for the purpose of finding out as to how many independent sub‑units could be made out of this property. Even Mr. Ghulam Shabir, Settlement Commissioner, who had remanded a the case for this very purpose, by his order, date3 4‑5‑1961 (Copy Annexure `J') and who passed the ultimate order in this case did not consider this very important aspect of the case. He visited the spot and made certain alterations is the order of Additional Settlement Commissioner, but the question, whether Unit No. 28/E‑VII was capable of division, was never considered by him, Brigadier Altaf Hussain had observed in his order, dated 28‑5‑1960 (Copy Annexure `H') that Unit No. 28/E‑VII, had 26 rooms. The parties agreed before us that there were no basis for this statement and that the learned Additional Settlement Com missioner was labouring under some misconception of facts, when he stated in his order that this Unit contains 26 rooms. Possibly this exaggerated description of the accommodation avail able in this Unit misled the Officers, who handled the case subse quently into the belief what it was a huge property and was capable of accommodating two families although none of them has expressly addressed himself to this aspect.

16. It was argued by Dr. Nasim Hassan Shah, the learned counsel for Sh. Taj Din that a portion of Unit No. 28 had been occupied by an office and the Settlement Authorities on this basis had correctly assumed that the house was divisible. The learned counsel submitted that all the authorities, who dealt with this case, proceeded on the assumption that this Unit was divisible.

17. The proviso to subsection (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958, which contains the definition of a house, enjoins upon the Chief Settle ment Commissioner to treat a residential premises as one house, although it may have been occupied by various persons, unless it is found by proper application of mind that the house is divisi ble, and is capable of being converted into two or more residential units. The mere fact, that a part of this Unit was being used as an office, would not in itself indicate that this resi dential premises is divisible as such. Under proviso to para. 1 of the Schedule, if a house, or part thereof, is in possession of more than one person and one of them is a claimant, then the house has to be transferred to the claimant. According to law, Unit No. 28/E‑VII was to go to the petitioner, who was a claimant in C possession. He could be deprived of his right to the transfer of the whole house only when the Settlement Authorities had declared it to be divisible with full awareness of mind and after proper consideration of the matter. The question of rights in property cannot be permitted to be decided by hazy assumptions. We, therefore, find that the order of the Additional Settlement Commissioner transferring Unit No. 28/E‑VII in its entirety in favour of the petitioner was more in accord with law and the demands of justice.

18. Sh. Taj Din, respondent No. 2 had rightly been accom modated in Unit No.

30. It had been asserted in pa a. No. 22, para. 22, clause (d) of the writ petition that Ch. Abdur Rahim, respondent No. I had claimed only that portion of Unit No. 30, which was in his actual physical possession, and that he admitted that fact in his written arguments presented to Khan Saeedud din Khan, Additional Settlement Commissioner, and therefore he could not get anything more than what he demanded. There is a general denial in the written statement filed by Ch. Abdur Rahim of the contents of this para, It would, however, be interesting to reproduce here the reply on this particular averment:‑-- " The division of a house by the Settlement Authorities under section 2 (4) of the Act, is not dependent upon the claims made by the parties in respect of the property. How ever, it is not admitted that the respondent ever submitted that he does not want to have any portion in addition to the one already to his possession. The house carved out under section 2 (4) of the Act can be transferred to an applicant." The above portion of the written statement contains an oblique admission on the part of Ch. Abdur Rahim that he had actually applied for the transfer of that portion which was in his possession. His position appears to be that a separate house was carved out by the Settlement Authorities and it could be transferred to any body. We are inclined to think that Ch. Abdur Rahim could not get anything more than what he had asked for, and that the order of the Additional Settlement Commissioner transferring the rest of the premises to Sh. Taj Din by earmarking was correct. It was held in Amir Din and others v. Muhammad Siddique and others (P L D 1966 Lah. 416) that a person applying only for a part of a house cannot claim the transfer of the entire house. The learned Single Judge deciding the precedent case based his decision on the order of the Supreme Court in Muhammad Hanif v. The Settlement and Rehabilitation Commissioner (Civil Petition for Special Leave to Appeal No. 5 of 1962), decided on 6th of February 1963, wherein their Lordships had said:‑-- " The order of the learned Judge of the High Court was justified on the ground on which it rested, but we are of the opinion that even otherwise the petitioner had no case. He had applied only for the transfer of a chaubara to him and that chaubara had in fact been transferred to him. He had no right to the transfer of the shop for which he had not applied at all. It is urged before us that the shop and the chaubara constitute one unit. Even if that be so, the petitioner would not be entitled to the transfer of the shop, if he never applied for it. This petition is dismissed."

19. We, therefore, set aside the order of the Settlement Commissioner, in so far as it relates to Unit No. 28/E‑VII, and direct that the above Unit shall be transferred to the petitioner in terms of the order of the Additional Settlement Commissioner, dated 13‑12‑1962, and that Sh. Tai Din be transferred that portion of Unit No. 30/E‑VII, which had been put in the earmarking list, and was transferred to Sh. Taj Din by the above order of the Additional Settlement Commissioner. The rest of the order of the Additional Settlement Commissioner is maintained. Since the petitioner has succeeded partly, we do not make any order as to costs. Petition partly accepted.