1989 PLP 1685 (SCMR)

ABDUS SATTAR, J.‑‑This appeal by special leave is directed against the judgment and order of a Division Bench of the High Court of West Pakistan, Karachi Bench, allowing a petition under Article 98 of the Constitution by which the decision of the Settlement authorities cancelling the transfer of a house to respondent No. 1 was quashed The facts of the case, shortly stated, are as follows:‑ Khubchand, the predecessor‑in‑interest of respondent No. 3 and his brother Asudomal were the joint owners of two residential houses bearing Survey Nos.A/2422 and A/2423 situated at Hirabad, Hyderabad. After partition Asudomal migrated to India and became evacuee whip Khubchand remained in Pakistan and his half share in the said property was held to be non‑evacuee properly by the Custodian on the 26th August, 1950. The house bearing No.A/2423 consists of two residentail units which were separately numbered by the Settlement authorities as A/2423/1 and A/2423/2. House No.A/2422 was occupied by Sirajuddin, respondent No.2. Residential Unit No.A /2.123/1 was occupied by the present appellant and residential Unit No. A/2423/2 was occupied by Abdul Ghani respondent No.

1. On the coming into force of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the abovenamed persons applied for transfer of the house in their respective possession by filing C.H. Forms in 1959 and Provisional Transfer Orders were issued to them in November, 1959. Khubchand also Filed L.H. Form for transfer of the evacuee share but his form was dismissed on the ground that lie was not in actual possession of the houses. He then filed two applications, one dated 23rd November, 1959 and another dated the 10th June for partition of the property. The Deputy Settlement Commissioner submitted to the Additional Settlement Commissioner a proposal for the partition of value and non‑evacucc shares. This proposal was approved by the Additional settlement Commissioner by his order dated the 17th February, 1961. The Deport settlement Commissioner then passed an order on the 6th March, 1961, to give ‑‑ 0cct to the approved partition. By this order, house No.A/2422 in the possession of respondent No. 2 and Unit No. A/2423/2 in the possession of respondent No. 1 were ordered to be transferred to Khubchand in lieu of his half share in the house. The Deputy Settlement Commissioner cancelled the earlier orders of transfer in favour of these respondents and maintained transfer of house No. A/2423/1 in favour of the appellant. Respondents Nos. 1 arid 2 challenged the order of the Deputy Settlement Commissioner before the Settlement authorities in the writ petition in the High Court of West Pakistan, Karachi Bench. The learned Judges of the High Court came to the conclusion that the Settlement authorities had no power to partition the property in question under the Settlement laws and in that view accepted the petition filed by the respondent No.

1. It was also observed that the remedy of K h b hand "was to either have recourse to private partition or to go to the Civil Court. Leave to appeal was granted as it was felt that the High Court order directed the taking of a fresh process to secure an end which had already been achieved and to consider the contention that since Khubchand was entitled to purchase that part of the property which pertained to his evacuee relations, the transfer by him of that part to the appellant who would pay the proper price to Government was entirely consistent with that position. It has already been noticed that the learned Judges of the High Court came to the conclusion that under the Settlement laws the Settlement authorities had no power to partition the property in question. In support of the contention that partition could be effected by the Settlement authorities, reliance was placed on the provisions of Section 8 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. Section 8 of the Act reads as follows:‑ "8.‑‑(1) For the effective utilization of the pools in pursuance of the provisions of this Act or the rules made there under or for the administration of any property in the pools, the Central Government may take such steps for the custody, management and disposal of the pools as it considers necessary. (2) Subject to such orders as Central Government may make under subsection (1) the Chief Settlement Commissioner may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving, managing or disposing any property the pools and may for any such purpose as aforesaid do all acts and incur all expenses necessary or incidental thereto and may, in suitable caws, create a charge on any such property". It wits contended in the High Court that subsection (2) of section 8 is wide enough to admit of power of partition of an evacuee property for the purpose of transferring the same to claimants. We agree with the view of the High Court that in the absence of any specific provision empowering the Settlement authorities to effect partition of a property between its different co -sharers such power cannot be spelt out from subsection (2) of section 8 of the Act. This power which is possessed by the Civil Courts and in the absence of any express provision in the Settlement laws taking away such power from the Courts and vesting in the Settlement authorities, we cannot hold that in regard to a property jointly owned by evacuees and non‑evacuees the civil Courts would have no power of partition. Such a power has been given to the Custodian by the Administration of Evacuee Property Act (XI I of 1957). There is no corresponding provision in the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned counsel for the appellant contended that as the definition of house in section 2(4) does not cover a share of a house the transfers in favour of respondents Nos. 7 and 2 were illegal. The transfers took place in 1959 and Provisional Transfer Orders were issued on 1‑11‑1959 in favour of the appellant C and respondents Nos. 1 and

2. Under the Settlement laws respondents Nos. 1 and 2 acquired an interest in the property and therefore any partition of the same by an agreement to which they were not parties would not bind them. In the High Court reliance was also placed in support of the orders passed by the Settlement Authorities on paragraph 16‑C to the Schedule of the Act. It is in the following terms:‑ "Where a property is indivisible and owned partly by a displaced person' or a local the Chief Settlement Commissioner may transfer the property to such person if his share in the property exceeds such limit as may be specified by the Central Government. The limit specified by the Central Government is not less than 1/3rd share in the property. It is true that Khubchand had half share in the property he could take advantage of this paragraph. He, however, never applied under this paragraph. Moreover, the property in the present case is indisputably divisible and therefore paragraph 16‑C was not attracted to it. There is, therefore, no substance in this appeal. It is dismissed with costs. M.A.K./T‑42/S Appeal dismissed.