P L D 1963 (W (PLP)

Sher Muhammad in person. The dispute relates to Shop No. 380, Tehsil Bazar, Bahawal nagar. It was transferred by the Deputy Settlement Commissioner by his order dated the 8th of February 1960 in equal shares to the petitioner and Sher Muhammad respondent. The petitioner filed an appeal against this order claiming that the whole of the shop should have been transferred to her. This appeal was dismissed on the 15th of September 1960, by the Additional Settlement Commissioner. The petitioner challenged this order by means of a revision but the Settlement and Rehabilitation Commissioner by his order dated the 27th of February 1961, dismissed the same. The petitioner filed a second revision against this order and pressed her claim to the entire shop. This second revision petition was decided by the Settlement and Rehabilitation Commissioner with the powers of the Chief Settlement Commissioner on the 24th of February 1960. Curiously enough, the Settlement and Rehabilita tion Commissioner not only dismissed her revision petition but further ordered that the half shop which had been transferred to the petitioner by the Deputy Settlement Commissioner and which order had become final, set aside the transfer and directed that the whole of the shop be transferred to Sher Muhammad, respondent. This writ petition is directed against the order of the Chief Settlement Commissioner.

2. The learned counsel for the petitioner has challenged the order on two grounds. Firstly, that the Chief Settlement Commissioner in exercise of his revisional powers under section 20 (2) could have amended the order passed by the Settle ment Commissioner on the 27th of February 1961, which was the order impugned before him. That the respondent was satisfied with the transfer of one‑half shop in his name as he did not file any appeal or revision against the order of transfer of half the shop in favour of the petitioner. Secondly, that the Chief Settlement Commissioner having held the shop to be one shop, the petitioner who was an allottee claimant had a superior right for the transfer of the entire shop as against Sher Muhammad who was an indirect claimant, as the allotment stood in the name of his son.

3. The respondent has argued his case himself. He has urged that the allotment in favour of the petitioner had been cancelled in the year 1958 and consequently his son was the allottee of the entire shop, so the shop had been validly transferred in his name. He has further contended that the petitioner was not in possession of any portion of the shop in dispute. Consequently she was not entitled to its transfer.

4. The order of the Deputy Settlement Commissioner clearly shows that at the time of the transfer the shop in dispute was in possession of both the parties. The operative portion of the order is as follows :‑ "As Mst. Rahmat Bibi and Sher Muhammad are both claimants and Mst. Rehmat Bibi is a regular allottee, Sher Muhammad claimant is father of Dildar Hussain who is also a regular allottee are proved to be joint occupations and partners of this shop, and Mst. Rehmat Bibi is a widow whose displace ment count much, I, in the interest of justice, transfer this shop half to Mst. Rehmat Bibi and half to Sher Mohammad on evaluation price." This order was upheld by the Additional Settlement Commissioner who has remarked in his order "I find that the transfer has been effected on the basis of possession which is equal and just." The Settlement and Rehabilitation Commissioner remarked in his revisional order "the shop is divisible, I find no reason to interfere and reject the revision". In view of these findings of fact, I can not accept the contention of the respondent thta Mst. Rehmat Bibi was not in occupation of the shop in dispute at the time when the Deputy Settlement Commissioner passed an order. May be, when the parties entered into litigation Mst. Rehmat Bibi who is a widow was turned out of the shop by the respondent but that would not disentitle her to claim the transfer of the shop. The Chief Settle ment Commissioner was moved by Mst. Rehmat Bibi for the transfer of the portion of the shop which had been transferred to the respondent. The Chief Settlement Commissioner could have either accepted her prayer or rejected it. He had no jurisdiction in the second revision filed by Mst. Rehmat Bibi to take away the portion of the shop which had been transferred to her by the Deputy Settlement Commissioner and which order had not been challenged in appeal and revision. The contention of the learned counsel for the petitioner that since the Chief Settlement Commis sioner had declared the shop to be one shop the petitioner had a preferential right for the transfer of the shop in dispute as against the respondent, cannot be accepted because if the order of the learned Chief Settlement Commissioner is held to be beyond his jurisdiction, it cannot be permitted to stand in part.

5. In this view of the matter I would order that the order passed by the Chief Settlement Commissioner is quashed. The result will be that the order passed by the Deputy Settlement Commissioner as maintained in appeal and revision will hold good with the result that the shop will stand transferred in the names of both the parties. The parties will bear their own costs in this petition. K. B. A./A. H. Petition accepted.