P L D 1967 Lahore 642 (PLP)

K. E. CHAUHAN, J.‑The dispute in this case is about Bungalow No. 77‑E situated in Model Town, Lahore. The Deputy Settlement Commissioner by means of his order dated the 4th of February 1960, divided it into two portions. Portion A along with the first‑floor was given to Wahaj‑ud‑Din and portion B was given to Hafiz Abdul Hakim, Abdul Aziz and lqbal Hussain jointly ; as they had agreed to have a joint transfer. Nothing was given to Muhammad Anwar Khan who is appellant before us. The appellant filed an appeal which was accepted by Col. J. D. Malik, Addl. S. C., who by means of his order, dated 31‑3‑1960 transferred the whole of this house to the appellant. Two revisions were filed against the order of the Addl. S. C., one by Wahaj‑ud‑Din and the other by Abdul Hakim, Iqbal Hussain and Abdul Aziz. Malik Fateh Khan. S. C., by means of his order, dated the 22nd of September 1960, accepted both the aforesaid revision petitions; set aside the order of the Addl. S. C., and restoring the order of the D. S. C., directed the transfer to be made in accordance with the same. His order suffers from an ambiguity inasmuch as even though he called the house to be indivisible but at the same time restored the order of the D. S. C., whereby the house had been divided and given to various persons. The appellant Muhammad Anwar Khan filed a second revision petition which was accepted by the C. S. C., by means of his order, dated the 30th of October 1961, whereby he transferred the whole of this bungalow to the appellant and eliminated the other transferees altogether.

2. Against the aforesaid order of the C. S. C., two writ petitions were filed, namely, W. P. No. 2/R of 1962, by Abdul Hakim, Iqbal Hussain and Abdul Aziz and W. P. No. 40/R of 1962 by Wahaj‑ud‑Din. Both these writ petitions were disposed of by Masud Ahmad, J., who by means of his order, dated the 27th of November 1962, accepted them quashed the order of the C. S. C., dated the 30th of October 1961, and restored the order, dated the 4th of February 1960 of the D. S. C. Muhammad Anwar Khan who was affected by the order of the learned Single Judge has filed this Letters Patent Appeal No. 169 of 1963.

3. Before entering into a discussion of the various points which have been raised by the learned counsel for the parties, it will be necessary to lay down the particulars about the dates of their possession and allotments. These are as follows:- The details and particulars of occupants other than tile present parties are not necessary for the purposes of this case and are not being given. S. No. Name Date of Possession Date of allotment

1 Abdul Hakim 24‑12‑1947 He claims 3‑6‑52 as (though in judg‑ the date of his allot‑ ment his posses‑ ment though it has sion is quoted been found that his as 1‑1‑1949). date of allotment is 16‑1‑1958. (It is with reference to Annex. "F" in W. P. No. 2/R of 62). 2 Iqbal Hussain. 24‑12‑1947 8‑7‑1959 3 Abdul Aziz. 24‑t 2‑1947 16‑1‑1958 4 Wahaj‑ud‑Din. 24‑12‑1947 8‑4‑1959 5 Muhammad Anwar 7‑1‑1956 9‑1‑1956 appellant.

4. The learned Single Judge (who has, while accepting the writ petition and restoring the order of the D. S. C., transferred the properties to the respondents), recorded the following findings on the various points arising before him:‑‑ (i) that the respondents, namely, Hafiz Abdul Hakim, Iqbal Hussain, Abdul Aziz and Wahaj‑ud‑Din were prior allottees and Muhammad Anwar Khan appellant was a subsequent allottee of year 1956, and from this point of view, the respondents had a preferential right to the transfer of this property; (ii) that the respondents wanted to take benefit of the notification of the Central Government, dated the 13th of October 1959, but according to the learned Single Judge that notification had no application to the facts and the circumstances of the present case inasmuch as one of the conditions of that notification (that no other person should be otherwise entitled to the transfer of the property)‑was not fulfilled in this case and that the appellant was "admittedly such a person"; (iii) that there was an (allotment) order, dated 3‑6‑1952, in favour of Haft Abdul Hakim. The C. S. C., had wrongly held that the said order did not constitute an allotment order ; (iv) that though the allotment orders of respondents were of a date subsequent to the actual dates of their respective possession, but these allotment orders had the effect of regularizing their earlier possession and, therefore, the date of possession of the said respondents should be the actual date of their occupation and not the date of allotment. In this respect, the learned Single Judge differed from the ruling of this Court reported in Muhammad Iqbal Khan v. The C. S. R. C. and another P L D 1963 Lah. 11; and (v) that the property having been declared divisible by the D. S. C., in his capacity as a delegatee of the C. S. C., the decision of the D. S. C. was final and could not be upset by the subsequent Settlement Authorities.

5. Learned counsel for the appellant has raised the following points before us:‑ (a) That though the learned Single Judge has maintained the division of the property into two parts, namely, A and B, but has erred in not transferring any of those parts to the appellant on the ground that the possession is to be reckoned from the date of occupation and not the date of allotment. He submits that the learned Single Judge in this way considered the respondents to be in possession with effect from year 1947, even though their allotments were of year 1958 or 1959, as indicated in fourth column of the table made in para. 3 above. Learned counsel submits that the possession of the respondents prior to the date of their relevant "allotment order" could not be considered to be "in pursuance of any order" because no such order existed in this case at that time and that the said occupation was such which was not recognizable under the Act. He submits that date of allotment alone should be the date from which possession should be reckoned and counting this way he maintains that his date of allotment is prior to that of the respondents, and, therefore, he and not the respondents had a preferential right for the transfer of this property. He further submits that allotments to two persons lqbal Hussain and Wahaj‑ud‑Din were made on 8‑7‑1959, long after the target date and the nature of these allotment orders was such that the earlier period of occupation could not be tacked alongwith them retrospectively so as to make the whole occupation lawful. It is further submitted by the learned counsel that in view of the judgment of this Court in W. P. No. 834/R of 1962, Abdul Halim v. C. S. & R. C. and others, dated the 13th of October 1965, the respondents could not take the benefit of the notification dated 13‑10‑1959, inasmuch as, they did not fulfil the qualifications contained therein ; (b) that the learned Single Judge was wrong in holding that the question of divisibility as decided by the D. S. C., was final and that it could not be subjected to appeal or revision before the higher Settlement Authorities. He relies for this proposition on the change in law as brought about by ordinance XVIII of 1965 retrospectively. This legal pro position is conceded by the learned counsel for the respondents though they otherwise submit that the house is in fact divisible. (c) that the C. S. C., in his order, dated 30-10-1961, had made a pointed reference to an order of the R. C., dated 15‑10‑1957, whereby the respondents had been declared to be Stare as unauthorised occupants. It is submitted that the said order was final under the Rehabilitation Act, and that the learned Single Judge could not, in the face of that order, hold the possession of the respondent as an authorised one; because it would tantamount to override that order. The learned Single Judge's finding on possession without reference to that order, it was submitted, tantamounted to overlook a material piece of evidence on the record which had been pointedly relied upon by the C. S. C.

6. Taking up the point at (a) first, it has a considerable force (to the extent indicated below) as we will analyse hereinafter. Possession has been defined in section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) (hereinafter called the Act or Act), which runs as under: (6) possession means possession obtained in pursuance of an order passed on or before the twentieth day of December 1958, by a Rehabilitation Authority or a Custodian or any other officer authorized or permitted by the Central or Provincial Government: Provided that if a question arises whether an officer was so authorized or permitted, the decision of the Chief Settlement Commissioner in that behalf shall be final. Provided further that the Central Government may, by order in writing, direct that a class or classes of such persons as have not obtained possession as aforesaid shall, subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act." This would show that it is that possession which is "obtained" (and not retained) in pursuance of an order passed on or before the 20th of December 1958, which has been mentioned in the definition. The concept of "obtaining" possession in pursuance of an order means that it is a possession which is entered into under that order. Again the order should be such which is passed (as for example) on or before that date. It would mean that first there should be an order authorising a person to take possession; then the second stage is that the man concerned should obtain or enter into possession in pursuance of that order. The event of entering into the possession is thus to follow the order and not to precede it. In a case, therefore, where a person is already in possession; and obtains an allotment order subsequently, his possession prior to the allotment order would not be such a possession, though the possession onward from the date of allotment would be a possession covered by the definition. Nor can any order of regularising possession passed by any Rehabilitation Authority as such bring the possession prior to the date of allotment order under the scope of the statutory definition reproduced above. This, however, is not the end of the matter. A person, who was already in possession un-authorisedly, but has obtained an allotment order subsequently, can give up the stand of allotment and can say that he does not wish to rely upon the allotment order but would rather rely upon the possession as amplified in the notification of the Central Government, dated the 13th of October 1959. If he does so, then he can count his possession from the date of his unauthorised entry into the house or shop, provided he otherwise fulfils the conditions laid down in the said notification. The said conditions relevant for our purposes are :‑ (i) that there is no other allottee of the whole house or shop, as was laid down in a recent Full Bench of this Court in W. P. No. 834/R of 1962, dated the 13th of October 1965. An allottee merely of a part (like the respondents) as was held by the learned Single Judge would not be such a person. The findings of the learned Single Judge, in view of the Full Bench decision are no longer correct on the point one hand; (ii) that the possession is undisputed; and (iii) that rent and public dues have been paid by the occupant from the date of his occupation or if he is a claimant such amount is adjusted against his claim. The upshot of the above discussion is that where a person relies upon an allotment order then it is the date of the allotment order itself (if he is already in possession) from which he will be considered to be in possession. In other cases it would be the date of actually obtaining the possession under the allotment order which will constitute his date of possession for the purposes of claiming priorities against his adversary. In this way, he will not be able to tack his earlier unauthorised possession if any. However, if he does not wish to rely upon the allotment order but wants to take benefit of his earlier unauthorised possession as well, then he must rely upon the notification of the: Central Government, dated the 13th of October 1959, and bring his case within its ambit in all respects.

7. Applying the principle enunciated above to the facts and the circumstances of the present case, it will be evident that the judgment of the learned Single Judge is not correct when he holds that when the respondents obtained allotment orders in year 19:9 or 1952, then the said allotment orders could convert the possession of the said respondents prior to the dates of their allotments as the possession obtained in pursuance of their allotment orders. As indicated earlier, if the respondents want to rely upon their allotment orders, then the dates of their allotments in this case would be the dates when they can be considered to have obtained possession. On the other hand, if they want to rely upon the dates of their earlier unauthorised entry into or occupation of the house, then they will have to bring their case within the four corners of the Notification of the Central Government, dated the 13th of October 1959. Since the learned Single Judge as well as the Settlement Authorities have not approached the case from this correct stand‑point, their orders will have to be set aside and the case will have to be remanded to the C, S. C., for fresh decision according to law.

8. As regards the factual aspect of the point at (b), as the respondents above, since we are proposing controverted by to remand the case to the C. S. C., we need not to express our stare own views on the point as to whether the house is divisible or not. We are told that it is a commodious bungalow which can Chap accommodate many parties. It has two storeys and extends over an area of five Kanals consisting of ten rooms in the ground floor and eight rooms in the first‑floor. It has got two garages and a large number of servant quarters with courtyard, etc. On the other hand, it is alleged that the bungalow is indivisible. Both sides have addressed lengthy arguments on this point. In our view, however, it is not advisable to decide this point here, cause our decision may not create any fetter on the wide be jurisdiction which the law gives to the Settlement Authorities iv this respect. We may, however, point out that the view of the learned Single Judge that decisions on divisibility or mode of division are not subject to appeal or revision, is no longer correct in view of the amendment brought about in the law by Ordinance XVIII of 1965 retrospectively.

9. As regards the point at (c), this again has a force. It is correct that the learned Single Judge did not deal with the document which had pointedly been relied upon by the C. S. C. In our opinion, however, this point should not detain us any further as now the case is being remanded to the C. S. C., and the parties can refer him to whatever documents or material they might consider proper and relevant in that‑ respect, and in respect of all the points arising in this case.

10. In view of what has been said above, the appeal is accepted and the case is remanded to the Chief Settlement Commissioner, for fresh decision in accordance with law. Since the entire case has been remanded to him, the parties will be at liberty to raise whatever contentions they like to raise before him and he also will be at liberty to arrive at any conclusion he likes on the various points in controversy between the parties. Since the records of the case had already been called for by the C. S. C., in revision, it will be a pending case of his file and he can be directed to deal with it as was done by their Lordships of the Supreme Court in Ghulam Mohyuddin v. The C. S. C., and others (P L D 1964 S C 829) here will be no order as to costs. K. M. A. Case remanded.