P L D 1968 Lahore 56 (PLP)

Allottee No. 1 is only occupying a garage. This was allotted to No. 2 on 8‑9‑1952 in this connection by D. R. C.'s order dated 24‑10‑1952. No. 3 has no allotment. The house will, there fore, go to No. 2, who is the senior allottee. Appendix X to issue." Two appeals were preferred against the above order, one by Haji Muhammad Sami Khan, who is no longer a party to the present dispute, and the other by Mst. Bakhtawar Bibi, the contesting respondent, widow of one Karam Din. These appeals were presented in Court of Lt.‑Col. Khushi Muhammad, Additional Settlement and Rehabilitation Commissioner, Lyallpur, the appeal of Mst. Bakhtawar Bibi was filed on the 22nd of December 1959. During the pendency of these appeals the Additional Settlement and Rehabilitation Commissioner addressed Memorandum No. ASC‑LYP‑6175 on the 28th of January 1960 to the Secretary (Urban) to the Chief Settlement and Rehabilitation Commis sioner, Pakistan, Lahore, and the relevant portion of that letter which may be reproduced here with advantage reads as under:‑-- "Properties mentioned at items Nos. 1 and 14 in the list relate to Lyallpur proper. The building known as Old Colony Bank mentioned at item No. 10 is in occupation of Mr. Riasat Ali Azad who is running his office "Daily Gharib" in this building since long. It has since been transferred in his favour. The Bank Management at Lyallpur has taken possession of adjacent building No. 89 W. 11 (lower portion) where they are functioning the Pay Office. As such the list be corrected accordingly," and the Chief Settlement Commissioner by his letter No. 753/AON/LHR/8 dated the 20th of March 1960 confirmed the arrangements which were made by the Additional Settlement and Rehabilitation Commissioner in his letter mentioned above. (These two documents have been placed on the record by Mr. Mahmud Ali Qasuri during the course of arguments).

2. In her appeal Mst. Bakhtawar Bibi alleged mala fide against Mr. G. M. Mansoor, Deputy Settlement Commissioner, Lyallpur, and had contended that when the said officer was acting as Deputy Settlement Commissioner, Lyallpur, he visited the Court of an officer subordinate to him on the 7th of December 1959 and picked out the file of the case relating to this property and passed the impugned order transferring the whole of the property in favour of petitioner No.

1. Mst. Bakhtawar Bibi also submitted in her grounds of appeal that the property in dispute was situated in Kutchery Bazar, Lyallpur, which is substantially a commercial area and a self‑contained house on the shop in the commercial area had to be transferred to her as an occupant of the house according to the latest instructions of the Chief Settlement Commissioner on the subject etc. etc.

3. On the 30th of June 1960 when the appeal came before Lt. Col. Khushi Muhammad, Additional Settlement Commissioner, Lyallpur, he did not go into the allegations of mala fide which were levelled against the Deputy Settlement Commissioner in her grounds of appeal by Mst. Bakhtawar Bibi nor did he advert about the status of the property whether it was situated in a commercial area or otherwise but in his appellate order he referred to the letter of Chief Settlement Commissioner mentioned above, by which the Chief Settlement Commissioner had approved the arrangements which were recommended by the Additional Settlement Commissioner for the transfer of this Bank Building in favour of Ch. Riasat Ali petitioner. Since the learned Additional Settlement Commissioner had already received the approval of the Chief Settlement Commissioner about the disposal of this property in favour of petitioner No. 1 he mainly banked upon this approval and dismissed both the appeals, without adjudicating upon the merits.

4. Haji Muhammad Sami Khan and Mst. Bakhtawar Bibi went up in revision against the above order which came up for hearing before the Settlement and Rehabilitation Commissioner, Peshawar, D. I. Khan and Sargodha Divisions, at camp Lyallpur, on the 23rd of June 1961 who rejected the revision of Haji Muhammad Sami Khan but ordered that the whole of the first floor should be transferred to Mst. Bakhtawar Bibi who will use the staircase approaching from the Bazar side. Ch. Riasat Ali petitioner No. 1 filed a second revision petition before the Chief Settlement Commissioner and submitted that the property in question was duly transferred in his favour by the Deputy Settlement Commissioner and when the National Bank of Pakistan had requested for the transfer of the said property the Chief Settlement Commissioner after calling for a report and file of the case gave some other building to the National Bank of Pakistan and had confirmed the transfer of this property in favour of the petitioner vide letter No. 753/AON/LHR/6 dated 20th of March 1960. In the second revision petitioner No. 1 contested the order of Settlement Commissioner by saying that in view of the above letter of the Chief Settlement Commissioner the Settlement Commissioner had no jurisdiction to reopen the case and alter the decision of the Chief Settlement Commissioner. In these grounds of revision it was also argued on behalf of petitioner No. 1 that the property was an indivisible unit and he being the sole allottee of the entire property was eligible for its transfer as a whole. The second revision petition filed on behalf of Ch. Riasat Ali Azad was dismissed by Mr. Muhammad Rafiq, Settlement and Rehabilitation Commissioner with the powers of Chief Settlement Commissioner at Lyallpur, on 10th of May 1962 with a short order that there were no grounds to interfere. A copy of this order was obtained from the office of the Chief Settlement Commissioner on the 12th of May 1962 but the petitioner kept quiet for a considerable long time and after nearly six months the present writ petition was filed in the High Court on the 8th of November 1962 under Article 98 of the Constitution of Islamic Republic of Pakistan.

5. This writ petition has been filed on behalf of six persons including petitioner No. 1 Ch. Riasat Ali Azad and for the first time it was contended that the Deputy Settlement Commissioner, Lyallpur, had transferred the whole of the house in the name of petitioner No 1 and his brothers who had submitted a joint C. H. Form and that petitioners Nos. 2 to 6 were not given any notice nor they were heard by the Settlement Commissioner before the first order of the division of the house was passed by the Settlement Commissioner. It was also contended that the Settlement Commissioner had exercised the delegated powers of the Chief Settlement Commissioner and had declared the property as one unit, therefore, the Settlement Commissioner could not exercise those powers once again. The writ petition was admitted on the basis of the decision of their Lordships of the Supreme Court in Bahar Muhammad v. The Chief Settlement Commissioner Special Leave to Appeal W. P. No. 58 of 1962 as it was contended that the delegated powers were not the subject matter of revision thereafter.

6. Mr. Mahmud Ali Qasuri, learned counsel for the petitioners did not rely on the above decision of the Supreme Court on the basis of which this writ petition was admitted neither he addressed any arguments on the question of exercise of delegated powers by the Deputy Settlement Commissioner and it seems that that point has been given up. However, he con centrated his forceful arguments on the other contentions which were incorporated in the grounds of writ petition, namely, that petitioners Nos. 2 to 6 were not heard by the Settlement Com missioner when the impugned order was passed and that the respondent, asst. Bakhtawar Bibi, was not in possession of the property and, lastly, that the question of the divisibility of the property should not have become the subject‑matter of con troversy before the Settlement Authorities when in fact there was no other eligible person for its transfer except the petitioners.

7. In support of the first contention, that petitioners Nos. 2 to 6 were not hearts by tire Settlement Commissioner when the impugned order of the division of the house was passed by him, reliance was placed by the learned counsel for the petitioners on Muhammad Siddiq v. Chief Settlement Commissioner (P L D 1965 S C 123) with particular reference to the observations of their Lordship of the Supreme Court at page

133. These observations read as under:‑ "It is plain that before the impugned order was passed by the Settlement and Rehabilitation Commissioner the second and third appellants who had been associated with the first appellant, with the requisite permission of the Settlement Authorities themselves, had acquired a vested right in the property in question and had been issued a P. T. O. in their favour, jointly with the first appellant. Without giving them any notice or an opportunity to be heard, the Settlement and Rehabilitation Commissioner could not have interfered with their property rights. In so far as he did so, he contravened the principles of natural justice and this circumstance, alone, would invalidate the impugned order. To this part of the appellant's case, neither Dr. Nasim Hasan Shah nor the learned Attorney‑General was able to give an answer." On the strength of these observations it was submitted that since the house was transferred by order of the Deputy Settle ment Commissioner in favour of the petitioner No. 1 the orders of the Settlement Commissioner and the Chief Settlement Com missioner were not binding upon petitioners Nos. 2 to 6 as these were vitiated on this short ground alone.

8. I have given the order of the Deputy Settlement Com missioner in full with an object to show that while passing the order the Deputy Settlement Commissioner was attempting to favour petitioners Nos. 2 to 6 with an order of transfer of the property in dispute which was not legally correct. He showed petitioner No. 1 at serial No. 2 and under this serial number he gave the names of the remaining 5 petitioners. This counting of the numbers was strange. If petitioners Nos. 2 to 6 were applicant for the transfer of the house in dispute, as is shown by Mr. Mahmud Ali Qasuri that they had filed a joint claim CH Form with petitioner No. 1 then it was necessary for the Deputy Settlement Commissioner to adjudicate upon their res pective rights and to show how under the law they were eligible for transfer. Petitioners Nos. 2 to 6 were neither allottees nor they were in possession of the property and, therefore, the joint "CH" Form submitted by them was incorrect and did not give them any right to claim the property in their name Even the contents of the order were couched in a language which was quite ambiguous. The Deputy Settlement Commissioner in the order of transfer has said that he was transferring the house to petitioner No. 1 who was allottee and claimant but the petitioners Nos. 2 to 6 were neither allottees nor in possession of the house and, therefore, they could not claim that this property was transferred in their favour by the Deputy Settlement Commis sioner who in fact gave it to petitioner No. 1 who was at serial No. 2 in his order and was "Senior" allottee. In these circumstances Mst. Bakhtawar Bibi was justified in filing her appeal against petitioner No. 1 alone who was the transferee of the house as a senior allottee as indicated in the order of the Deputy Settlement Commissioner. At any rate, this was open for petitioner No. 1 to contest the appeal of respondent Mst. Bakhtawar Bibi before the Additional Settlement Commissioner on the ground that petitioners Nos. 2 to 6 were not impleaded as ‑a party. Petitioner No. 1, who was the direct beneficiary of this order, never put up this plea before the Additional Settlement Commissioner.

9. The order of the Deputy Settlement Commissioner was illegal and void so far as it mentioned the names of petitioners A Nos. 2 to 6 and purports to give this property to those who were neither allottees nor in its possession. The Additional Settle ment Commissioner before dealing with the appeals which were filed before him against the above order of the Deputy Settlement Commissioner referred the matter to the Chief Settlement Com missioner about the transfer of this property vide correspondence mentioned above and obtained the approval of the Chief Settlement Commissioner for the transfer of this property in favour of petitioner No.

1. This fact has been mentioned by him in his appellate order and the Chief Settlement Commissioner had also confirmed this proposal which was to the effect that the property should be given to petitioner No. 1 alone. At the time when a reference was made to the Chief Settlement Commissioner by the Additional Settlement Commissioner the Deputy Settle ment Commissioner passed the order of transfer but the Additional Settlement Commissioner did not consider that petitioners Nos. 2 to 6 were in any way eligible for the transfer of this property and he only referred the case for the approval of the transfer in favour of petitioner No. 1 to the Chief Settle ment Commissioner. In fact the Additional Settlement Commissioner never treated petitioners Nos. 2 to 6, in any way, to be the transferees of this property. No doubt he did refer in his order that Ch. Riasat Ali petitioner No. 1 had associated with seven claimants but that, in no way, gives any right to petitioners Nos. 2 to

6. They have not produced on this record the agreement of association which might have been executed by them in favour of Ch. Riasat Ali and in view of the finding of the Additional Settlement Commissioner that Ch. Riasat Ali had associated with seven persons I do not consider that petitioners Nos. 2 to 6 were, in any way, interested in this property either as transferees or as associates. Mr. Mahmud Ali says that the number given by the learned Additional Settlement Commissioner should be read as `5' and not 'T, but in the absence of any document on this record to prove to the contrary I have to accept the certified true copy of the order which has been filed by the petitioners themselves. Further there is nothing to show in what circumstances Mr. Riasat Ali, who is a close relation of petitioners Nos. 2 to 6, did not inform the other petitioners that a litigation was going on about this property and continued fighting for its transfer in his exclusive name. This establishes beyond any doubt that petitioners Nos. 2 to 6 never considered themselves either as transferees or as associates of petitioner No. 1 and, therefore, they did not bother what was happening between Ch. Riasat Ali petitioner No. 1 and respondent Mst. Bakhtawar Bibi. This argument has been taken up for the first time in writ petition to bolster up the claim of petitioner No. 1 which was otherwise failing on account of the division of the house by the Settlement Authorities. I have discussed in detail the order of the Deputy Settlement Commissioner and that of the Additional Settlement Commissioner with an object to show that the Deputy Settlement Commissioner has passed an order the bona fides of which are not beyond doubt and the Additional Settlement Commissioner also acted against the law when during the pendency of the appeal he referred the case of transfer of the property to the Chief Settlement Commissioner and obtained his approval for the arrangements which he has suggested as mentioned by me in this judgment earlier. The appeals were dismissed by the Additional Settlement Commissioner as he was acting on the approval which he had obtained from the Chief e Settlement Commissioner and there was no judicial application of his mind to the case. In these circumstances his order is also illegal.

10. In Azmat Ali v. Chief Settlement and Rehabilitation Commissioner (P L D 1964 S C 260) their Lordships have observed that when a superior Court calls for the records of judicial or quasi‑judicial authorities or Tribunals, which are not subject to its appellate jurisdiction, the superior Court no doubt has the full power to do justice and in these circumstances their Lordships of the Supreme Court quashed the order of Khan Farzand Ali Khan, which was restored by the High Court, with the following observations :‑-- "A further question that arose for consideration was as to whether Khan Farzand Ali Khan himself had acted in the proper exercise of his jurisdiction in dealing with the revision on merits without considering as to whether the order dis missing the appeal on the ground that it was barred by limitation was proper or not. There was nothing in the order of Khan Farzand Ali Khan to show that he was even conscious that any question of limitation arose. In the cir cumstances, we are unable to appreciate how the High Court thought it fit to restore the order of the Settlement Com missioner which itself was liable to be quashed in the writ jurisdiction." The records of this case were sent for in exercise of extra ordinary jurisdiction of this Court under Article 98 of the Constitution of Islamic Republic of Pakistan and in view of my discussion in the preceding paragraphs of this judgment I would apply the observations of their Lordships of the Supreme Court mentioned above and declare that the orders of the Deputy Settlement Commissioner and the Additional Settlement Com missioner are liable to be quashed in the writ jurisdiction.

11. In view of my above finding I do not think that petitioners Nos. 2 to 6 can take any advantage of the orders of the Deputy Settlement Commissioner and the Additional Settlement Commissioner and make grievance of the violations of the principles of natural justice. These two orders were void ab initio and the orders which hold the field are the orders of Settlement Commissioner dated the 23rd of June 1961 and that of the Chief Settlement Commissioner dated the 10th of May 1962. There is nothing in the orders of the Settlement Commissioner to indicate that petitioner No. 1 made any mention of his so‑called associatees at the time when he was hearing the revision of the other side. Except the mention of the names of petitioners Nos. 2 to 6 in the order of the Deputy Settlement Commissioner after the name of petitioner No. 1 Ch. Riasat Ali and besides a line in the order of Additional Settlement Commissioner about seven claimants, learned counsel for the petitioners was not able to satisfy me that petitioners Nos. 2 to 6 had in any way acquired a right either by transfer or by association in the property. In this view which I have taken of the pleadings of petitioner No. 1 I am fortified by another document which is relied by the petitioners themselves. This is the grounds of second revision filed on behalf of petitioner No. 1 before the Chief Settlement Commissioner. This was examined by me in Court with the help of the learned counsel for the petitioners but I did not find a word about petitioners Nos. 2 to 6 in this memorandum of revision.

12. The second revision of petitioner No. 1 was heard and decided by the Chief Settlement Commissioner on 10th of May 1962 on merits. It was not dismissed for want of record within the provisions of Ordinance XIII of 1962. So for as this final order of Mr. Muhammad Rafiq, Settlement Commissioner with the delegated powers of Chief Settlement Commissioner is con cerned learned counsel for the petitioners has not uttered a word against it. He only confined his arguments against the order of Mir Ajam Khan, Settlement Commissioner, Peshawar, D. I. Khan and Sargodha Divisions. In these circumstances the order of Mr. Muhammad Rafiq can not be quashed by me as it was not challenged at all on behalf of the petitioners. This becomes final within the meaning of section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In these circumstances I do not think that the arguments of the learned counsel for the petitioners that petitioners Nos. 2 to 6 were not heard before the Settlement Authorities have any force. The decision of their Lordships of the Supreme Court quoted above by Mr. Mahmud Ali will not be attracted to the present case. This objection that petitioners Nos. 2 to 6 were not heard was taken for the first time on their behalf in the High Court and even at the time of admission of the writ petition this does not seem to have been urged as the petition was admitted on the basis of Bahar Muhammad's case. It is an established principle of the law that even in matters relating to the grant of writ of certiorari the Court is entitled to enquire into the conduct of the applicant and the circumstances of the case in order to ascertain whether it is proper or not to grant the remedy sought, and its C grant has always been a matter of discretion to be exercised by the Court who is making the enquiry about the facts of the case, except where a writ of certiorari is claimed as a matter of right.

13. In the present case petitioners Nos. 2 to 6 are not strangers to petitioner No.

1. They are close, relations of each other. They in all probability knew what litigation was going on between petitioner No. 1 and the respondent Mst. Bakhtawar Bibi. They cannot be said to be unaware that this property was originally the property of Colony Bank and was required by the National Bank of Pakistan and in fact had been ear‑marked for them by the authorities. It was petitioner No. 1 alone who approached and persuaded the Additional Settlement Commis sioner to recommend to the Chief Settlement Commissioner and ask for his approval for its transfer in his exclusive name. When the decision went against petitioner No. 1 in the Court of Settlement Commissioner he alone filed a second revision petition which petitioners Nos. 2 to 6 allowed to be heard and decided on merits by the Chief Settlement Commissioner. A certified copy of the order of the Chief Settlement Commissioner was obtained by them in May 1962 itself but they kept quiet for about six months. All this time they did not raise any objection to all these proceedings which were going on right from 1959 to 1962 in the Settlement Courts. Petitioners Nos. 2 to 6 cannot be said to be mere passive spectators having no power to prevent the commission of the illegality which they complain of in these proceedings now. In these circumstances I do not think that petitioners Nos. 2 to 6 make themselves eligible for the grant of discretionary writ of certiorari in their favour. In this view of the matter which I have taken I respectfully adopt the observations of their Lordships of the Supreme Court in Ghulam Mohi‑ud‑Din v. Chief Settlement and Rehabilitation Commissioner (PLD 1964 SC 829).

14. Coming to the next contention of the learned counsel for the petitioner that Mst. Bakhtawar Bibi was not in possession of this property and, therefore, it could not be divided for the benefit of a person who is not in possession, reliance was placed on Altaf Hussain v. Chief Settlement Commissioner (PLD 1965 SC 68). Mr. Mahmud Ali referred me to the observations of their Lordships of the Supreme Court in the above mentioned judgment at page 82 to the following effect "The question of the divisibility of the house would only fall for consideration in case none of the parties is found deserving of transfer of the house as a whole." Mr. Mahmud Ali wants to read this much only tearing it from the rest of its context. But if the observations of their Lordships of the Supreme Court are read as a whole and one does not stop here with the full‑stop then their Lordships' further observations are to the following effect :‑ "We may add, however, that the view taken by the Letters Patent Bench of the High Court that a building will be treated as one house even though occupied by more than one person, unless the Settlement Authorities, in their discretion, order it to be divided, is in accord with the language of the first proviso to the definition of the `house' in section 2(4) of the Act." With these observations their Lordships have approved the decision of this Court in Chief Settlement Commissioner v. Altaf Hussain (P L D 1962 Lah. 189) where a Division Bench held that the reason ableness of an order of Settlement Authority on the question of division will not be open to scrutiny by High Court in exercise of writ jurisdiction. The learned Settlement Commis sioner in exercise of his powers as a delegatee of the Chief Settlement Commissioner ordered the division of the house into two portions in exercise of his discretion and this division was affirmed on the revision of petitioner No. 1 by Mr. Muhammad Rafiq exercising the powers of Chief Settlement Commissioner, these decisions are in accord with the language of the first proviso to section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and this Court has always refused to exercise its jurisdiction in the matters of the division of the property which is a question within the exclusive discretion of the Settlement Authorities. Both parties are claimants and there are no equities in favour of the petitioners. Mst. Bakhtawar Bibi is a widow and has been given the portion in her occupation while petitioner No. 1, who is an Editor of a daily influential newspaper, has been transferred the portions which are in his possession. So far as petitioners Nos. 2 to 6 are concerned, they are neither allottees nor in possession of this house and under the law were not even eligible to file a joint "CH" form with petitioner No. 1 Ch. Riasat Ali Azad.

15. There is another aspect of the matter and it will not be out of place to mention it at this stage. The property is situated in Kutchery Bazar, Lyallpur, which is a predominently commercial area. This point was urged by Mst. Bakhtawar Bibi in her grounds of appeal before the Additional Settlement Commissioner. She had also submitted that the Deputy Settlement Commissioner in the city had transferred all other properties according to the respective possession of the parties but only an exception was taken to the property in dispute. This point was also urged in the grounds of revision petition that the instructions of the Chief Settlement Commissioner were ignored and the Deputy Settlement Commissioner had gone against the generality of his decisions announced by him in respect of other properties in the city and if this is so then the provisions of section 2(12) relating to the definition of "shop" under the Act will be attracted to the present case and not of section 2(4), the definition of "house" The Settle ment Commissioner while ordering the division of the property was acting in accordance with the instructions of the Chief Settlement Commissioner which are printed at page 68 as amended by the subsequent instructions at page 92 of the Settlement Manual (Old Edition) and each party has been given their respective portions. The order of the Settlement Com missioner and the Chief Settlement Commissioner are unavailable in law.

16. This brings me to the last contention of the learned counsel for the petitioners that Mst. Bakhtawar Bibi was not in possession of the premises under dispute and, therefore, the Settlement Authorities should give the entire property to the petitioners as no person in possession was there to ask for its transfer. This contention of the learned counsel is inter linked with the question of the divisibility of the house, but I had to deal with the question of the possession of Mst. Bakhtawar Bibi separately. The entire property bears one number. It was originally allotted to Shamsul Haq, one of the sons of Mst. Bakhtawar Bibi respondent. The said Shamsul Haq was murdered sometimes in 1948 and Ahmad Din, another son of Mst. Bakhtawar Bibi, is still in possession of the property. Mst. Bakhtawar Bibi came with her son Shamsul Haq, who was a claimant and the first allottee of the house. It was urged that subsequently the entire property was allotted to Ch. Ali Akbar, the present Home Minister, and thereafter petitioner No. 1 obtained the allotment of the whole property to 1952, in these circumstances Mst. Bakhtawar Bibi could not be considered to be in possession of the property as Ahmad Din her son was a non‑claimant and could not pass on his possession for the benefit of her mother as the provisions of paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabili tation) Act, 1958, are available for the benefit of claimants and no advantage can be taken of it by a non‑claimant for passing it on to his parents, son, daughter etc. The argument of the learned counsel has no force. He could not deny that Mst. Bakhtawar Bibi was all along living in the first floor of this house immediately after independence and her entry in the house was as mother of Shamsul Haq, the allottee claimant, and she never abandoned her possession. The lower portion of this property was being used in pre‑partition days by the Colony Bank and has been occupied as an office of a daily newspaper by petitioner No. 1 from 1952. The allotment of Shamsul Haq was never cancelled although the property might have been allotted in favour of Ch. Ali Akbar, the present Home Minister, and the present petitioner No. 1 and in the absence of a regular cancellation of the order of allotment of Shamsul Haq I do not think that the petitioner No. 1 can extend his hand to the other portion of the property of which he was never in possession. The allotment order of Shamsul Haq has not been placed on record but there is nothing on this record to show that after the allotment of the property in favour of Ch. Ali Akbar and subsequently in favour of petitioner No. 1 any steps were taken by the petitioners either for the cancellation of the allotment of Shamsul Haq or for the allotment of Mst. Bakhtawar Bibi or her son Ahmad Din.

17. In the circumstances mentioned above I hold that Mst. Bakhtawar Bibi continued occupying this house right from 1947 and her possession was never disturbed. She entered upon this property as mother of Shamsul Haq who was the allottee and the allotment of Shamsul Haq was never cancelled. The Rehabilitation Authorities had no jurisdiction to re‑allot the property subsequently without properly cancelling the allotment of Shamsul Haq. In similar circumstances in a case where certain rooms were allotted to a person and subsequently the roofs of those rooms were re‑allotted to another person the order of re‑allotment was quashed by certiorari by this Court in Ghulam Nizam‑ud‑Din v. Farzand Ali Khan (P L D 1961 Lah. 19). In another case reported as Muhammad Ishaq v. Saiduddin Swaleh (P L D 1960 Kar. 48) a Division Bench of this Court held that the new order of allotment without cancelling the earlier order of allotment was ineffective untill the former allottee was ejected. Mr. Mahmud Ali did not dispute the allotment of Shamsul Haq neither he was able to show that Shamsul Haq's allotment was at any stage cancelled by the Rehabilitation Authorities before the property was allotted to Ch. Ali Akbar and petitioner No.

1. His only argument was that the allotment of late Shamsul Haq could not continue for all times when the subsequent allotments were made in favour of the above‑named persons. In view of the above two decisions of this Court I am not prepared to accept this argument of the learned counsel for the petitioners and hold that subsequent allotment of the property in favour of petitioner No. 1 was illegal and ineffective.

18. Even if I were to hold otherwise Mst. Bakhtawar Bibi who is in undisputed possession of this property and is entitled to claim it by virtue of the Notification of the Central Government No. F. I. (27)/59‑S. I. dated the 13th of October 1959. Learned counsel for the petitioners was unable to show that Mst. Bakhtawar Bibi was living somewhere else except in this property which had been allotted in favour of her son. An effort was made by him to argue that she was living in shop No. P. 225 which has been transferred in her favour but the order of the Settlement Commissioner dated 23rd of July 1961 is very clear on the subject. He has mentioned that he bad inspected both the places and there was no place for residence m property No. P. 225 which was transferred as shop in favour of Mst. Bakhtawar Bibi. Mr. Mahmud Ali urged that after the death of Shamsul Haq Mst. Bakhtawar Bibi might be visiting this place because it was occupied by her other son Ahmad Din a non claimant and the mere fact that Mir Ajam Khan Settlement Commissioner had gone to the spot and found that Mst. Bakhtawar Bibi was present in the house at the time of his inspection was not sufficient to constitute her possession under the law and does not make her eligible for the transfer of the same as mother of allottee Shamsul Haq because she was not in its legal possession within the meaning of section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, nor she could be given the benefit of her being in possession within the meaning of the above Notification. But all those contentions are negatived by a cursary glance into the various orders which are passed by the Settlement Authorities in this connection. The Deputy Settlement Commissioner rejected her claim only on the ground that she was a non‑allottee but did not say a word that she was not in possession. The Additional Settlement Commissioner in his appellate order has also mentioned that Mst. Bakhtawar Bibi was in possession of a minor "portion" which he did not consider to be a separate unit. In these circumstances when the Settlement Commis sioner went on the spot and found that Mst. Bakhtawar Bibi was present in the house, it cannot be said that he acted on mere presumptions and gave legal sanctity to the possession of the petitioners on account of her mere presence on the spot.

19. I, therefore, do not see that there is any force in this contention of the learned counsel for the petitioners that Mst. Bakhtawar Bibi was not legally in possession of this property on the relevant date.

20. As a result of the above discussion I see no merit in this case and dismiss this petition without there being any order as to costs. K.M.A. Petition dismissed.