1986 PLP 569 (MLD)

Ch. Muhammad Hassan for Petitioners. Shuja‑ud‑din Hashmi for Applicant (in C.M. No.l of 1979). Date of hearing: 11th February, 1986. This is the third writ petition arising out of the transfer of the impugned property. It was partially dismissed qua the respondent Ghulam Muhammad in the very admitting note and is heard ex parte against the respondent‑Department as none has appeared on their behalf.

2. Earlier the whole building consisting of residential rooms on the back side, two shops on the front, a Chaubara thereon and a Deorhi as also a staircase was transferred to the predecessor of the present petitioners but respondent No.l, Ghulam Muhammad who occupied a residential room contested as a rival claimant and was ultimately given the whole of the residential portion. The petitioners' predecessor was allowed only the Chaubara which he was occupying while the two shops underneath it were held to be available for disposal.

3. Aggrieved by it the petitioners brought the present writ petition claiming that since the entire building was an indivisible single unit, they had better right to get the whole of it.

4. After partially dismissing the petition in the admitting note, as aforesaid, the petitioners' claim to get the two shops as a part of the Chaubara in their possession was left to be considered.

5. There was no contest on behalf of the respondent‑Department. However, a miscellaneous application (No.l of 1979) under Order I, Rule 10, C . P. C . , was made on behalf of Muhammad Siddique and Karam Elahi for being impleaded as necessary party to the writ petition on the ground that they being in possession had already applied for the shops under the Management and Disposal of Available Urban Property Scheme. The petitioners contended in reply that the applicants possession, if any, was of no consequence as earlier occupants of these shops, namely, Ali Sher and Khushi Muhammad had been eliminated either for having not claimed them or being ineligible.

6. There was considerable substance in the claim of the petitioners who had been given once the whole of the building as a single unit. The contest, if any, was between them and Ghulam Muhammad. The persons then occupying the shops, namely, Ali Sher and Khushi Muhammad had been totally eliminated. Obviously no new person could be allowed to set up any claim for subsequent possession. The Department did not contest the writ petition. If claimant occupies a portion, it is open to him to claim the whole in preference to all others. The applicants seeking impleader now are not claimants but are trying to exploit only their possession which does not appear to be of long‑standing origin. They shall be subject to all disadvantages which the earlier occupants Ali Sher and Khushi Muhammad had and, therefore, the possession alone will not help them much. The plea that the impugned order, dated 16‑8‑1978 (Annexure 'A') by having divided the property as held for the first time that the shops were available for disposal cannot help them to improve their status. Even if those were made available now, the petitioners being claimants had a better right to get them. In fact, the applicants were stated to be street‑walkers having had no legal colour to support their contention.

7. As a result, the writ petition is allowed. The impugned order is held to be void against the interest of the petitioners. The case is sent back to the Notified Officer for formally transferring the two shops to the petitioners. The application under Order I, Rule 10,1 C.P.C., made on behalf of Muhammad Siddique and Karam Elahi is dismissed. H.B.T Petition allowed.