2005 PLP 184 (MLD)

2. The dispute relates to the transfer of a large Evacuee Property No-SE-II-R-7 situate at Durand Road, Lahore. The property has been described as a ' Katri' occupied by some 44 persons, 5 of whom had shops in their possession, 34 had separate quarters and there were 5 unroofed quarters. The petitioners including Qazi Sadiq Hussain, who has since died and is now represented by his legal representatives, were in occupation of the main bungalow, while the respondents were the occupants of the separate quarters and shops. On the commencement of the Settlement operations, the petitioners applied on a form 'CH' for the transfer of the entire property in their favour, while the respondents, some whom were claimants and the other non-claimants, submitted 'CH', 'NCH' and 'NCS' forms for the transfer of the portions of the property in their possession. The Deputy Settlement Commissioner, by his order dated 24-4-1960, transferred the entire property in favour of the petitioners. On appeal, by the respondents, the Additional Settlement Commissioner, by his order dated 9-12-1961, set aside the said order and remanded the case to the Deputy Settlement Commissioner for fresh decision. In pursuance of the aforesaid remand order, the Deputy Settlement Commissioner again took up the matter and by a detailed order passed on 20-7-1963, divided the property whereby the main bungalow was transferred in favour of the petitioners, while the shops and quarters were transferred to the respondents. Feeling dissatisfied with this order, the petitioners challenged it by filing an appeal before the Additional Settlement Commissioner but the said appeal too was dismissed by him vide his order dated 18-3-1968. The petitioners then filed a revision petition before the Settlement Commissioner and the same was accepted, in that the entire property was transferred in favour of the petitioners except for three shops. This order was passed on 30-9-1968. The petitioners were, however, still not satisfied and, therefore, challenged the order of the Settlement Commissioner by filing a writ petition before the Lahore High Court (W.P. No.308-R of 1969) praying for the transfer of the aforesaid three shops. The occupants of the separate quarters and shops felt aggrieved on account of the deprivation of the portions of the property in their possession which had been transferred in their favour by the Deputy Settlement Commissioner and whose order had been maintained on appeal by the Additional Settlement Commissioner. Consequently, they also filed a writ petition in the Lahore High Court to question the order of the Settlement Commissioner (W. P. No. 152-R of 1969). Both the writ petitions were heard together by a learned Single Judge of this Court and disposed of by him vide his order dated 30-4-1976. The writ petition filed by the respondents (W. P. No. 152-R of 1969) was accepted on the ground that the learned Settlement Commissioner had not properly looked into the record nor examined the facts with reference to actual facts of life on the spot and, therefore, his order was without lawful authority and of no legal effect. Consequently, the case was remitted to the Settlement Commissioner to re-examine the same with reference to the facts and the law applicable thereto and to pass orders in accordance with law. The other petition (W.P. No.308-R of 1969) was dismissed the same day and their petition was also dismissed by the Hon'ble Supreme Court as noted in the preceding para. It is thus that respondent No.1 proceeded to consider the respective entitlement of the parties and has passed the impugned order. According to the learned counsel for the petitioners, respondent No. 1 has acted in disregard of law inasmuch as the servant quarters which were attached to the main bungalow were integral part thereof and had to be transferred along with the main bungalow, the respondents as occupants thereof had no lawful entitlement. In this regard reference has been made to Mst. Fazlun Nisa Begum v. Chief Settlement Commissioner and others (PLD 1967 Karachi 402), Muhammad Rafiq v. The Chief Settlement and Rehabilitation Commissioner and others (PLD 1968 Lahore 1037), Muhammad Anwar Jan Durrani and others v. Syed Hasan Imam Kazmi and others (1968 Lahore 1406) and Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner and others (PLD 1966 SC 719). Reference has also been made to Abdul Majid Khan v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore (1968 SC 154) and Muhammad Yaqub v. Settlement and Rehabilitation Commissioner, Lahore and 5 others (1973 SC 439) to contend that real controversy as to premises being one unit or otherwise has neither been comprehended by respondent No.1 nor adjudicated upon. It is thus contended that only the petitioners were entitled to the transfer of the whole of the bungalow alongwith all quarters etc. attached therewith. The learned counsel for the respondents, however, has urged that since before partition the property was a "Katri" occupied by several persons having their independent utility and the petitioners cannot claim transfer of such a large property where number of families had been living since decades. According to him respondent No. 1 on taking into consideration the entire background and previous litigation has passed the order which is just and fair and call for no interference by this Court in writ jurisdiction. As mentioned above, there had been earlier round of litigation between the parties through W. P. No. 152-R of 1969 and W. P. No. 308-R of 1969, these two petitions were heard together and were decided on 30-4-1976. While dealing with W.P. No.152-R of 1969, it was observed by the learned Judge that:-- "Besides, a decision of divisibility or indivisibility of a property is not interferable but this does not mean that if 50 separate independent houses 'and shops are put together and declared to constitute one property that order will be immune from attack in this Court. In the present case, it stands established on record that prior to partition this property consisted of five shops in possession of five different persons and that there were 34 quarters in which different people were living. The same state of affairs continues after independence till today. Independent families are living in the separate portions in their possession. To say that all these nearly 40 properties constituted one house is travesty of language. The property has been described in the relevant record as 'Katri'. It is a common knowledge that a 'Katri' is used with reference to a Ihata, as the learned Additional Settlement Commissioner mentioned in his order dated 9-12-1961 or for a Kuocha and in such a locality numerous people live and this constitutes the 'Katri'. The whole of it cannot be said to be a house. The spot has been inspected by the Deputy Settlement Commissioner and he found all these people, living there for the last nearly thirty years by now. They were living in their separate small portions and those were castles for them. To say that their humble dwellings did not constitute separate and independent residential units is to shut one's eyes to the real facts of life." It may be mentioned that the judgment was not interfered with by the Hon'ble Supreme Court of Pakistan. It was in this context that respondent No. 1 while passing the order came to a definite conclusion by considering the record and recording the finding that the respondents herein were in possession of their respective premises for which they had submitted their C.H., NCH and NCS forms for the transfer thereof. While dealing with the question of indivisibility or otherwise of the property it was observed that:-- "the parties are living peacefully ever-since partition without encroaching upon each other's privacy. The very word 'Katri' suggests that it is meant for the residence of many a people independently. Therefore, the property has to be divisible and is, therefore, declared as such." It was thus that the respondents were ordered to be transferred the respective portions in their possession. The findings--so recorded and view formed by respondent No. 1 is amply justified not only from the material on record but also the ground/realities. The P.A. list of Lahore Municipal Corporation for the year 1946 showed the property against Column No.3 (meant for, description and designation of the property either by name or by number sufficient for identification) as "Katri with shops". 41 persons have been shown in that list the occupants of the property. The contention of the learned counsel for the petitioners that it should be considered as one property transferable to the petitioners only does not hold the ground and is untenable in view of the factual position obtaining on the spot. The precedents cited by him thus in the circumstances do not have' much bearing upon the facts and circumstances of the case. It may be observed that in Muhammad Hussain v. Settlement and Rehabilitation Commissioner and another (1987 SCMR 1649) it was held that discretion of the Settlement Authority in matter of division and treating the property as separate could not be interfered with by the High Court in writ jurisdiction except that where the order is arbitrary or capricious. In Allah Bakhsh v. Chief Settlement Commissioner, Lahore and 3 others (1976 SCMR 275), it was held that the view taken by the settlement authority holding the property divisible in view of the fact that the families of the parties had been living in it for many years was not questionable nor could be interfered with in writ jurisdiction. In Barkat Ali v. Settlement and Rehabilitation Commissioner, Multan and 8 others (PLD 1991 SC 610) it was observed that the Courts while exercising Constitutional jurisdiction may grant or withhold relief full or partial in exercise of discretion and or in aid of justice. It was thus observed that there was no "legal hurdle in transferring both the divided parts to the respective applicants by transfer in accordance with their possession". In Mst. Shah Jahan Begum v: Mst. Shabbir Fatima and another (1991 SC 614), it was observed that irrespective of the fact that who had preferential claim the Court would try wherever possible in settlement cases to adjust and accommodate as many displaced persons as possible. Similar approach was adopted by the Hon'ble Supreme Court in Sh. Fazal Hussain v. Abdul Waheed and others (1992 SCMR 931). At this juncture, I am reminded of a tempted to borrow the observations of a great Judge of the era late Mr. Justice M.R. Kiani, from the judgment in Abdul Ghafoor and 30 others v. The Rehabilitation Commissioner West Pakistan Lahore (PLD 1958 Lahore 48), who at that time while disposing of a rehabilitation matter observed that:-- "After all, the work of rehabilitation consists in the settling of refugees, not in their unsettling, and since it is not suggested that a refugee claimant receives more than what he had left behind, we do not see how the fat kine can swallow the lean kine, if another pasture can be made available for the latter. The rights have been artificially created, the earlier settlers to receive precedence over the later claimants, and subsequent amendments, however, beneficial, could not be used to unsettle those whose claims have been finalized." It may be observed that the parties herein have remained entangled in long drawn litigation since after the creation of the country and have consumed lot of their valuable time in the Courts. The Courts have to endeavour to accommodate and settle as many displaced persons as possible in the evacuee premises occupied by them since long and not to unsettle them. The ouster of anyone at this stage after half a century of creation of this country can by no means be considered as just or fair. It would be frustrating rather thwarting the very object of evacuee laws. In such milieu, taking all circumstances into consideration, I am persuaded to uphold the disposition made by respondent No. 1 and to maintain the order passed by him. As a result the writ petition is dismissed with no order as to costs. M.H./Z-55/L Petition dismissed.