P L D 1980 Supreme Court 133 Present : Anwarul Hag, C (PLP)

KARAM ELAHEE CHAUHAN. J.-The dispute in this case is about what is known as "western portion" of property bearing No. S-57-R/18 (also known as 3/18 Temple Road, Lahore. It consists of (i) a ground floor and (ii) first and second floors. The ground floor was allotted to Mst. Hussan Ara Begum (appellant No. 2) by an order of the Deputy Settlement Commissioner dated 18-6-1958, followed by - a regular allotment order dated 21-6-1958, which however, was in favour of bath of appellant No. 2 aforesaid and her mother Mst. Saeeda Khatoon (appellant No. 1). Their case is that they occupied the ground floor on the aforesaid date after vacating the upper portion which earlier was in their possession.

2. Mst. Amir Begum (respondentNo. 1 herein) on 2-7-1958 filed a revision against the aforesaid order which was accepted by the learned Custodian on 3-8-1959 who directed Mst. Hussars Ara Begum to vacate the ground floor and go back to the second floor which was in her earlier occupation within one month and allotted the ground floor to Mst. Amir Begum respondent.

3. Mst. Hussars Ara Begum filed a constitutional petition being P. W. 375/59, which was dismissed by a learned Single Judge of the Lahore High Court on 15-10-1959. A Letters Patent Appeal against that order being L. P. A. No. 4/60 also met the same fate and was dismissed by a Division Bench on 3-3-1960. Despite all these orders against Mst. Hussars Ara Begum she did not obey them and did not vacate the ground floor and has done it even until now.

4. At this place it may be mentioned that on 28-3-1958 came into force the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958 (hereinafter called the Act) which provided for transfer of houses to the persons mentioned therein. Settlement Sheme No. 1, flamed under section 16(1)(b) and (c) of the Act was then enforced on 19-5-1959, whereunder applications from the relevant contestants were invited. Confining ourselves to the relevant facts both the contestants in this case namely Mst. Saeeda Khatoon (appellant No. 1) as well as Mst. Amir Begum (respondent No. 1) filed respective C. H. form claiming transfer of this property. The learned Deputy Settlement Commissioner divided the property into two portions namely Eastern and Western. As already mentioned, in this case, we are concerned with the western portion which it may be stated was transferred by the learned Deputy Settlement Commissioner by his order dated 17-3-1960 to Mst. Saeeda Khatoon (appellant No. 1) in toto.

5. Mst. Amir Begum (respondent) filed an appeal but without any success as the same was dismissed by the learned Additional Settlement Commissioner on 20-4-1960.

6. Mst. Amir Begum then filed a revision which brought fruit as it was accepted by Malik Fateh Khan the then Settlement Commissioner by his order dated 14-11-1960, whereby instead of giving the whole of western portion as one unit to any one applicant, he further divided it into two portions namely (i) ground' floor as one unit and (ii) first and second floor as another unit. After doing so he transferred the ground floor to Mst. Amir Begum respondent to whom it had been allotted by the Custodian on 3-8-1959 but possession whereof was still being illegally retained by Mst. Saeeda Khatoon in violation of the aforesaid order also of the High Court orders in P. W. No. 375 of 1957 and L. P. A. 4 of 1960.

7. Mst. Saeeda Khatoon filed a further revision but it was dismissed by the learned Chief Settlement Commissioner on 24-3-1962.

8. Having thus lost the case earlier from the Custodian as well as the High Court in consequent P. W. 375 of 1959 and L. P. A. 4/ 60 and later from the Settlement Commissioner and the Chief Settlement Commissioner (under the Settlement operations) Mst. Saeeda Khatoon again filed a constitutional petition being W. P. No. 515-R/62 in which she succeeded on 13-6-1963 when a learned Single Judge of the Lahore High Court accepted it and quashed the orders impugned therein on the ground that as Mst. Amir Begum respondent No. 1 was not in physical possession of any portion of this property therefore the transfer made by the learned Deputy Settlement Commissioner to Mst. Saeeda Khatoon alone was quite lawful.

9. Mst. Amir Begum filed a Letters Patent Appeal (being L.P.A. 195/63) which was accepted by learned Division Bench of the High Court by their order dated 27-9-1963 wherein they inter alia held that the Settlement Commissioner had in revision ample jurisdiction to divide the western portion, and if he divided the same into two units namely (i) ground floor and (ii) first .and second floors, his decision and determination, on the subject was quite valid. Proceeding further in this way they held that Mst. Saeeda Khatoon having been transferred one house in the form of the unit consisting of the first floor and the second floor she could 'not be given another house in the form of another unit of ground floor; They consequently did not disturb the order of the Settlement Commissioner dated 14-11-1960 and holding the same as operative in the filed maintained transfer of the ground floor in favour of MA Amir Begum whom Mst. Saeeda Khatoon had not allowed to occupy the sauce in flagrant disregard of the earlier ejectment order of the Custodian etc. mentioned in details above. 1

10. Mst. Saeeda Khatoon and her daughter Mst. Hussars Ara Begum Nave come up in appeal against the aforesaid order of the Letters Patent Bench by leave which was granted on 8-10-1969, to consider the factum of possession of the parties and the effect of the division of the property into two units or houses out of which one unit/house was transferred to the appellants and the other to respondent. As regards the mode of division this Court held that the same however was unexceptionable. The appeal has been contested by Mst. Amir Begum as well as the Settlement Department who have supported the order of the High Court under appeal and the reasons contained therein.

11. After the learned counsel for the appellants had natated the abov facts we asked him that if the question of divisibility (as held in the leav granting order itself) was unexceptionable what right his client had to clai another house after having already been given one house in the form of the unit consisting of the first and the second floor became under the law a ma can get only one house or one shop as the case may be, as laid down by the Court in Begum Wazir Ahmad Industrial: Home v. Mt. Niaz Begum (PLD197.6SC214) and Khuda Bakhsh v. Khushi Muhammad and .3. others (PLD1976SC208). And further that a person is to succeed on the strength of his own entitlement and not on the weakness, if any of his adversary. The learned counsel really bad no answer and tried to argue that the house should not have been divided in the form above mentioned. The contention has no merit and apart from the fact that the divisibility of a house cannot be challenged as held by this Court in Khawaja Riffat All v. Settlement 'and Rehabilitation Commissioner (19fi5 S 'C M R 322) and Dr. Munawar Alf Khan v. Chief Settlement Commissioner .and others (1976 S ,C M R 54) even leave has not been granted to challenge the same and as .much the order of the Settlement Commissioner dated ",141-11-1960 in this case is unexceptionable particularly when the history of the case and the use, of the property in the past clearly .shows that it was: being used for housing and accommodating various persons in that form. This finding is sufficient to dispose of this appeal but the learned counsel wanted to raise a few other points get out of this difficulty to which we shall presently refer.

12. To project his case learned counsel for, the appellants submitted that his client was in possession of this property namely ground floor and the same should have been transferred to her. In this respect he relied upon an extended definition of "possession" as contained in the Central Government Notification dated 13-10-1959, which reads as follows : "No. F. 1, (27)/59-SI., (13th October, 1959).-In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to direct that a claimant, a non-claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the twenty-first day of December 1958, and no other person is otherwise entitled to the tranfer of each house or shop in pursuance of a final order passed by a .competent authority before that day Provided that the rent and other public dues in respect of such house or shop have been paid..by the occupant from the date of his occupation and, if he is, a, - claimant, such amount is adjusted against his claim."

13. We have heard 'the learned counsel at length but we must say that his case does not fall under the above notification. A perusal of the said notification will show that it applies to such cases where the. "occupation" of an applicant is "undisputed" but in the instant case the "occupation" of the appellants was very such "disputed" in the sense and for the reasons that (i it was and became sub judice when a revision against,;the very allotment order, whereunder the appellant claimed or obtained it, .,was instituted in the Court of the Custodian on 2-7-1958-(much before the target data of 20-12-1958)--and the dispute about the latter was still pending when the appellant filed her form : (il) the occupation of the appellants after orders of the Custodian dated 3-8-1959 was put to an end, and they were directed to vacate the same within one month, the result whereof was that the very allbtment of the appellants stood- washed off sad got replaced by allotment in favour of Mst. Amir Beguni. Again by taking one month ' time from the Custodian the possession of the appellants became under respondent No. 1 and it appears that it was for this reason that Mst. Amir Begum was considered by the learned Settlement Commissioner in his order dated 14-11-1970 to be in possession of the property. Similarly and in the same way and same manner he considered the petitioners to be in possession of their earlier portion and directed its transfer etc. to them. In this way he has ignored the allotment order dated 18/21-6-1958 as having become non-existent. Here it may be mentioned that apparently realising -the impact and involvement of, these incidents learned counsel for the appellants did not endeavour to pace his case under, the statutory definition of the word "possession" in section 2(6) of the Act and instead relied on the notification dated 13-10-1959 which is presently under examination ; (iii) that this type of occupation was a disputed occupation is clear from para. 17 of the Settlement Scheme No. 1, which is headed) as- "cases pending in other Courts" and lays down that "when the question .of possession of the property or any other question haying, a hearing an it "is still. sub judice before a Rehabilitation Authority or any other competent authority or Court, the Deputy Settlement Commissioner shall await the devision of that Authority or Court in that case and shall postpone the determination of the entitlement of the applicant for the time being." This will show that cases of the type where appeals/revisions of the kind involved in this case were pending or right of possession and allotment or other matters incidental thereto etc. were sub judice, were not cases of "undisputed occupation" because had that been so then there would have been no provision and no necessity to stay them till the disposal of the aforesaid proceedings as contemplated in para. 17.

14. Learned counsel for the appellants submitted that in the notification the words used are "undisputed occupation" as distinct from "undisputed possession" with the result that if the factum of a person being in actual physical occupation was not in dispute, then that was the end of the matter, and irrespective of a litigation with regard to the entitlement to retain allotment or consequent occupation still going on, the factum of being in physical occupation was enough by itself to qualify a person to claim transfer of property under the notification. The contention has no merit, because if accepted it would lead to putting premium, for instance, on illegally or fraudulently obtained or retained occupation, in spite of a declaration to this effect by a forum of competent jurisdiction and in the face of express provisions of para. 17 of Settlement Scheme No. 1 which required the Deputy Settlement Commissioner to await the results of pending disputes on the subject and which further imply that the decisions rendered in these proceedings had to be followed and given effect to because otherwise it will make no sense when you say that await their out come and result but then you also say that do 'not abide by them. This shows that what an applicant has, under the notification of 13-10-1959, to prove are two things, namely (f) occupation and (ii) the fact that it is undisputed which so far as relevant for this case means that no litigation or dispute about the same was pending any where. If the contention of the learned counsel for the appellant is accepted it will tantamount to make the word "undisputed" as prefixed to the word "occupation" as redundant which cannot be allowed.

15. Apart from the above legal infirmities in the entitlement of the appellants under the notification dated 13-10-1959 under which alone the learned counsel placed their case, we may state that after hearing the learned counsel for the parties at length we are further of the opinion that the order of Malik Fateh Khan, Settlement Commissioner dated 14-11-1960 was quite just and fair which did substantial justice between the parties, inasmuch as by dividing the house into two units as mentioned above, he accommodated and settled two refugee/claimant families in separate units and contained the appellants in the portion which was (to state generally)-in their possession much prior to the accrual of the present dispute and prior to their shifting to the ground floor (which shifting was not accepted by the Custodian and the High Court in this earlier round of litigation) and in this way settled respondent No. 1 in the aforesaid ground floor. The order being quite just and fair the Letters Patent Bench was justified in restoring it and letting it remain operative in the field. Similarly on our part we feel no justification at this late stage of the settlement operations for interfering with such a fair order by unsettling a claimant refugee/family which was settled in this property as far as 14-11-196 . The effect of this discussion is that the appellants not being in "undisputed occupation" of this unit/he? which was demarcated as "ground floor" they were not entitled to claim it transfer and were so because having already obtained transfer of one house namely first and. second floor they could not ask for transfer of a second house (i.e. ground floor as held above earlier).

16. For the reasons above stated this appeal is dismissed with costs. S. q. Appeal dismissed.