P L D 1973 Supreme Court 124 (PLP)

The appellant then, on the 1st of March 1967, made another application for bringing on the record the legal representatives who had not already been substituted. This application was also made, according to the rules of this Court, on notice to the legal representatives so sought to be impleaded. Again, no one appear ed nor filed any objection. But on this application the order passed by the then learned Chief Justice, on the 10th of March 1967, was to the following effect: "The application is sanctioned, both as to addition as well as substitution of names of L. Rs. of the deceased Abdul Hayee, subject to just exceptions." Notice of such impleadment was duly given to the legal representatives on the 29th of March 1967. Thereafter, the respondents filed a concise statement on the 15th of July 1968, with an application for the con donation of the delay in the filing of the concise statement. No objection on the ground of abatement of the appeal was taken even in the concise statement, but this objection has been raised for the first time at the hearing on the basis of the order of the 10th of March 1967, which, it is said, was "subject to just exceptions". Learned counsel appearing on behalf of the appellant con tends, firstly that this objection should not be allowed to be raised at this stage, because, under rule 4 of Order XX of the Rules of this Court, no one is to be permitted to raise any ground at the hearing of the appeal which is not specified in his petition of appeal or the concise statement. The learned counsel next contends that there is no question of automatic abatement under the rules of this Court, because, rule 7 of Order XXI of the Rules of this Court imposes a duty on the appellant to make an application whenever it is found that the record has become defective, by reason of death or change of status of a party, for a certificate shoving who, in the opinion of the Court, is the proper person to be substituted or entered on the records, in place of, or in addition to, the party on the record, and the person of such name shall thereupon be deemed to be substituted or entered on the record as aforesaid. There is no provision in these Rules for any application for setting aside an abatement as is rule 9 of Order XXII of the Code of Civil Procedure. Under rule 9 of Order XVI of the Rules of this Court all that is required is that such an application must be made within ninety days of the occurrence provided that "the Court may for sufficient cause extend the time". In this case, an application was actually made on the 15th November 1966 in accordance with these Rules and sufficient cause was made out therein. No one controverted the statements contained in this petition which were duly verified by an affidavit and the Court without any reservation, on the 21st of Novem ber 1966, granted the prayer for substitution. This, it is con tended, shows that the Court also applied its mind to the request for condonation of the delay and allowed the substitution after condoning the delay. The substitution could not have been allowed otherwise. In any event, it is lastly said that this Court has ample power under rule 3 of Order XLIX of the Rules of this Court to enlarge any time appointed by these Rules for doing any act even after the expiration of the time so appointed. So this Court can, even at this stage, extend, if necessary, the time. There is sufficient cause for this. In view of these contentions, the learned counsel for the heirs of respondent No. 2 does not seriously press his objection, because, he concedes that this Court has the power to extend the time and that the Court would be justified in doing so even at this stage as his clients never controverted the averments made in the applica tion filed by the appellant for the condonation of the delay, nor took this objection in the concise statement. The preliminary objection is, accordingly, overruled and the delay, if any, in bring ing the legal representatives on the record is condoned. Coming now to the merits of this case, the learned counsel for the appellant has, firstly, contended that even if the wife of Mr. S. Z. Ahmad is to be deemed under the Notification of the 7th of March 1950, to be in possession of the house allotted to her husband before the 20th of December 1958, by a competent Authority, her father cannot, under the first paragraph of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act of 1958, take the advantage of such fictional possession of his daughter, because, it is necessary under this Schedule that the parent, son, daughter or spouse on the basis of whose posses sion the claim is preferred must himself or herself be entitled under the provisions of the Schedule to the transfer of the house con cerned. Unless he or she is so entitled, no indirect claimant can succeed where there is a competition between the persons on the basis of whose possession the claim for transfer is being preferred and other persons claiming directly. The Schedule reads as follows :‑ "Manner of Disposal of Urban Evacuee Property.

1. Houses.‑A house in possession of a claimant or a parent, son, daughter or spouse of the claimant, being a house which such parent, sort, daughter or spouse does not claim under the provisions of tie Schedule, and if there is more than one such houses, then any one of the houses which the claimant desires to retain, shall be transferred to him at a price deter mined on evaluation basis: Provided that if a house or a part thereof is in possession of more than one person and one of them is a claimant, then the house shall be so transferred to the claimant: Provided further that if a house or a part thereof is in posses sion of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession." The learned counsel for the appellant lays emphasis on the words "which such parent, son, daughter or spouse does not claim under the provisions of the Schedule". According to him, these words necessarily imply that they should be in a position to claim the transfer of such a house under the provisions of the Schedule. In the present case, Mrs. S. Z. Ahmad, not being a claimant in her own right, was not entitled under the provisions of the Schedule to the transfer of the house. Furthermore, in the present case, the appellant, who was himself a claimant and directly in posses sion of a portion of the house, had a preferential right, both by virtue of being a claimant as well as a prior allottee. He was allotted the portion in his possession five days before the allot ment in favour of Mr. S. Z. Ahmad. In support of this contention, reliance is also placed on the observations in the JUDGMENT of this Court in the case of Abdul Majid Shaida v. Mst. Noon Jehan (P L D 1967 S C 221) where the contention that a claimant displaced person, not in actual possession, whose parent, son, daughter or spouse was in possession under an allot ment order, could also take advantage of the two provisos to paragraph 1 of the Schedule to the Act, was repelled. In this connection, the Court opined as follows :‑ "If Mr. Lari's argument is to succeed, it would mean that a person, who can claim under the main paragraph, on the strength of constructive possession through one of the relatives mentioned therein, must be deemed to be in actual possession for the purposes of the two provisos. He would in such a case defeat a claimant, in actual occupation, if his own relative in possession had occupied the premises earlier than that clai mant. This would mean enlarging the definition of "posses sion", as given in section 2 of the Act, to persons who can claim only on the basis of constructive possession. There are no words in the main paragraph, suggesting that such a person is deemed, in law, to be is actual possession. Such a deeming provision could have been made by a notification of the Central Government, under the second proviso to the definition of "'possession" in section 2(6) of the Act. That in fact has been done by the Central Government, to give the benefit of "posses sion" to persons, not holding an allotment order, but who are in undisputed possession from a certain date, subject to certain conditions. But for this extension of the definition, the word possession" would have to be construed merely, as meaning occupation under an allotment order or some other order issued by a competent authority as laid down in the statutory definition. At page 563 of the New Manual of Settlement appears a Memorandum, dated the 7th of March 1960, declar ing that the Central Government has decided that where a house is in the possession of the husband, in pursuance of an order passed on or before the 2001 day of December 1958, by a com petent authority, his wife, if staying with him, will also be deemed to be in possession. The Memorandum would appear to be redundant if the position adopted by Mr. Lari is accepted as correct. We are not, therefore, convinced that a claimant, who is himself out of possession, can, on the strength of posses sion of his relative son, defeat the claim of an actual occupant who is also a claimant, under the two provisos to paragraph 1 of the Schedule." We have no cavil with the proposition enunciated above; but where there is no competition and the relative is alone in possession of a house under a valid order, then we can see no objection to a claimant displaced person not In actual possession claiming the transfer of the property on the basis of the possession of his or her relative, if the latter falls within the) categories specified in the said paragraph and is not interested in claiming the property. The words "does not claim" occurring in this paragraph de not necessarily refer to an entitlement to claim but extend also to the non‑preferment, in fact, of any claim for transfer. This is a general provision which applies to all kinds of houses and we see no reason to read these words in a restricted sense. Even otherwise a local in possession was originally entitled to claim a house of which the value did not exceed Rs. 10,000 but now, the policy having since undergone a change, a local in possession can claim the transfer of a house of any value. Therefore, even in the limited sense preferment of claim must be there along with entitlement to operate as an ouster. The situation under the provisos, however, is different. Where there is competition the ouster of the indirect claimant becomes operative not because of the interpretation sought to be given to these words by the learned counsel but because of the preferential right of a claimant in direct possession. The latter succeeds because he has a better right and not because the indirect claimant has no right. This brings us to the nest question relating to the division of bungalow No.

2. Learned counsel for the appellant has argued that the division in this case was not made because the building was structurally divisible into two independent residential units but in order to accommodate a person who would not otherwise have been entitled to the transfer of any portion of the said building. This, it is said, was wholly illegal. In support of this contention, reliance has been placed on a decision of this Court in the case of Altaf Hussain v. Chief Settlement Commissioner (PLD 1961 SC 68) where it vas held that "the question of 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." On this principle, it is maintained, that, in the present case, since the appellant was admittedly entitled as a claimant in direct possession to the transfer of the house as a whole in preference to all other persons, the question of division should not at all have arisen. As to the manner in which and the circumstances In which a division should be made reliance is sought to be placed on the JUDGMENT of this Court in the case of Abdul Majid Khan v. Chief Settlement and Rehabilitation Commissioner (PLD 1968 SC 154), where it was pointed oat that for the purpose of division the word "unit" used in subsections (4) and (12) of section 2 of the Act of 1958 has a special signification "which is more co‑related to the structural characteristics of the building itself" and in this sense the word "unit" is clearly "intended to mean a division of the whole building which can be regarded as the least necessary to form an integrated portion capable of having a separate entity and being used as a self‑contained portion." In the present case, learned counsel has endeavoured to point out that none of these principles were followed and, therefore, the division was wholly irrational and the result of an entirely false approach to the case. Learned counsel also maintains that here the Settlement Commissioner has put the cart before the horse, because, he should first have considered, as pointed out in the decisions cited above, whether there was any one individual claimant who was entitled to the transfer of the whole house; and only when no such individual was found, the question of divisibility should have been considered. This improper approach, it is further suggested, had been influenced by the fact that the Settlement Authorities had been regarding Sh. Abdul Hayee as a person who was entitled to the transfer of the house on the basis of the possession of his daughter in competition with other claimants in direct possession. Learned counsel for the heirs of Sh. Abdul Hayee, on the other hand, contends that the division has been made on correct principles, because, the Additional Settlement Commissioner had in his order of the 19th of March 1962, which is in fact the impugned order in the present case, clearly pointed out that "this bungalow is essentially built in two independent flats and can accommodate two families" and that it is "easily and conveniently divisible into two independent units". The structural characteristics of the building were, therefore, kept in view in making the division. In the circumstances it was not for the Courts either under Article 98 of the Constitution of 1962 or under Article 201 of the Interim Constitution of 1972 to interfere with the decision of the Settlement Authorities in regard to the divisibility of a house, as pointed out by this Court in the case of Muhammad Yousuf v. Chief Settlement and Rehabilitation Commissioner (PLD 1969 SC 101). If the order of division has been made in the proper exercise of lawful authority and is neither capricious nor whimsical it ought not to be interfered with. This Court has consistently taken this view: vide the cases of Muhammad Hanif v. Abdul Haque (199 S C M R 135) and Mehraj Din v. Settlement Commissioner (1969 S C M R 913). The definition of a "House" given in subsection (4) of section 2 of the Act of 1958 is as follows:‑ "House.‑‑'House means evacuee residential presmises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and out‑houses, if any, attached to or appur tenant to such premises, notwithstanding that any such garden, ground, garage or out‑house is in the possession of a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises declared under paragraph 16 of the Schedule to be a big mansion or hotel: (Provided that where any building or premises not so declared consist of more than one residential unit, and such units are in the possession of several persons, then unless the Chief Settlement Commissioner orders otherwise, the whole of said building or premises shall be deemed to be a house: Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including out‑houses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house.)" It will be noticed from the above that the question of divisibility of a house not declared to be a big mansion or hotel will arise under the first proviso only if it consists of more than one residential unit and such units are in the possession of several persons. Therefore, the first question that should receive the attention of the authorities is as to whether the premises consist of more than one residential unit in occupation of more than one person. Both these conditions must exist to justify a division. If it is in occupation of only one person then no division is called for. Again if the units are not structurally so compact or integrated as to be able to have a separate entity or be capable of being used as a self‑contained portion then too division should not be made. In this view of the matter, we are inclined to agree with the learned counsel for the heirs of respondent No. 2 that the division had been properly made. There were two self‑contained residential units in this bungalow which were occupied by two different persons. No defect can be found in this division. In the circumstances, the appellant had, rat our view, no locus standi to challenge the transfer of a divided portion to another person, if he had received one potion, because, no person is entitled to the transfer of more than one house. By the division of tie bungalow into two houses and the transfer of one of them to the appellant, his claim was fully satisfied and he had no longer any locus standi left to claim the second house as well: vide Hafiz Habib Ahmad v. Yaqoob Khan (1969 S C M R 932). For the reasons given above this appeal must fail and is, accordingly dismissed; but having regard to the facts and circumstances of this case, we leave the parties to bear their own respective costs. K. B. A. Appeal dismissed.