1969 PLP 675 (SCMR)

Saleh Mohammad, the predecessor of the present appellant applied in C. S. form for the transfer of premises No. GK-7/101 Atma Ram Road, Karachi, on the basis of his possession of .a portion of the building through his son‑in‑law. The Deputy Settlement Commissioner, treating the building as one unit transferred it to Saleh Muhammad on the 30th May 1960. 11‑6‑1960, a P. T. O., in respect of the whole building, issued in the name of Saleh Muhammad. The Karachi Municipal Corporation enhanced the assessment of the building in June, 1961, and Saleh Mohammad claimed enhanced rent from the occupants of the building. Some of the occupants made an application in September 1961, to the Settlement Commissioner for cancellation of the P. T. O.; in favour of Saleh Muhammad on the grounds that the building consists of several independent tenements and should not have been transferred to Saleh Muhammad alone and further that he was not a Pakistani national. It is worthy of note that the other occupants of the building had riot applied for transfer of the tenements in their possession. The Settlement Commissioner inspected the building and found that `there were actually 12 independent units in this big building mostly used for residential purpose except that its ground floor contains a godown". He then in exercise of his suo moto power of revision cancelled the P. T. O. issued to Saleh Muhammad as according to him, Saleh Mohammad was a permanent resident of Ceylone. He directed that the building be put to unrestricted public auction. Against this order Saleh Muhammad filed a writ petition in the High Court under clause 2(4) of the Laws (Continuance in Force) Order, 1958. A learned Judge found that the Government of Pakistan had granted a citizenship certificate to Saleh Mohammad. According to him, therefore, Saleh Mohammad was a Pakistani national. He, however, did not accept the contention on behalf of the appellants that Saleh: Mohammad was entitled to the transfer of the whole building as according to him the Settlement Commissioner had come to a finding that the building consisted of 12 residential units. He; therefore, found that Saleh Muhammad and after his death his heirs would be entitled to the transfer of the tenement which was in the possession of Saleh Muhammad through his son‑in‑law. The appellants challenged this order without success in the Letters Patent Appeal. Leave was granted to consider the contention of the appellants that as they were in possession of a part of a sin transfer unit in the capacity of claimants they were entitled to transfer of the whole building. The learned counsel for the appellants has contented that as the Settlement Commissioner did not come to a definite finding that the building in question was divisible and did not actually order for its division, the High Court was wrong in holding that the heirs of Saleh Mohammad were entitled to the transfer of only that portion of the building in which they bad possession. The Settlement Commissioner observed as follows :‑ "I made a site inspection to ascertain the nature and number of independent tenements in the building in question It transpired on site inspection that there were actually 12 independent units in this big four‑storeyed building mostly used for residential purposes except that its ground floor contains a godown." 'The above observation of the learned Settlement Commissioner ‑does not clearly indicate his intention to divide the building into 12 independent units. Mr. Fakhruddin on behalf of the appellants has contended that it is not possible to divide this building into independent units. Mr. Saeed on the other hand has drawn our attention of the following observation of the. learned Settlement .Commissioner :‑ "Even if his son‑in‑law, Siddiq Bawa; is in possession of only one of the 12 residential tenements in this house, he cannot have even the shadow of entitlement to secure the transfer of all the 12 independent residential tenements together with a big godown on the ground floor into the bargain." It is true that the above observation does indicate that the Settlement Commissioner thought that if Saleh Mohammad had .not been a Ceylonese citizen he would have been at the most entitled only to one of the 12 residential tenements in the house. Nevertheless something more was necessary to express the intention to divide the house. As there is no clear indication that the Settlement Commissioner decided to divide the house into different independent units, the learned Single Judge in the High Court was not justified in holding that the heirs of Saleh Mohammad were entitled to only that portion of the 'house which was in the possession of Saleh Mohammad through 'his son‑in‑law. In the result this appeal is allowed. The judgment of the High Court are set aside and the order of the Settlement Commissioner is quashed. The case will now go back to the Settlement Commissioner to consider whether the house in question should be considered as one unit or should be divided into several units. If the house is considered to be one unit then in view of the finding of the High Court the appellants' will be entitled to the transfer of the whole of it. If, however, the decision is that the house should be divided then the appellants will get only one of the units into which the house is so divided. In view of the facts of this case there will be no order as to costs. Appeal accepted.