1988 PLP 1546 (SCMR)

MUHAMMAD HALEEM, C.J.‑‑‑Leave to appeal was granted to consider whether in the absence of local, Gulzar Ahmad, who could not claim the transfer of the disputed House No.P‑86, Ward No.9, Lyallpur, appellant Muhammad Yousuf who was in possession of a part of it as a non‑claimant had a preferential right to the transfer of the house in his own right against his N.C. H . form. The disputed House No.P‑86, situated in Ward No.9, Lyallpur, was listed for earmarking and the lot fell in the favour of respondent No. 2 ' on 13‑12‑1959. Appendix XI was issued on 5‑1‑1960 for the payment of its price which was paid in full and a Permanent Transfer Deed (P.T.D.) was issued in his favour on 10‑5‑1962. However, before the lot was drawn, appellant No.1 herein filed an N . C . H . form for the transfer of the house on 17‑11‑1959 on the basis that he was in possession of a part of it. This form was rejected by an undated order of the Deputy Settlement Commissioner, Lyallpur on the ground that the property had already been earmarked for disposal in the first list. This appellant sought review of the order but did not succeed as it was dismissed by the Deputy Settlement Commissioner on 3‑4‑1961. Against this order, the appeal was dismissed by the Additional Settlement Commissioner on 28‑3‑1962 as it was barred by time. However, the appellant succeeded in revision which was accepted on 19‑3‑1966 and the case was remanded to the Deputy Settlement Commissioner for deciding his entitlement after hearing him. On remand, the Deputy Settlement Commissioner set aside the transfer in favour of respondent No.2, and transferred the disputed house to the appellant and his son Muhammad Afzal by order dated 28‑9‑1966. The appeal against this order was dismissed on 29‑5‑1968 by the Additional Settlement Commissioner, but the revision succeeded as it was allowed on 10‑7‑1968. The Settlement Commissioner while rejecting their entitlement held: "In the report by the Deputy Settlement Commissioner which he made to the Chief Settlement Commissioner and the previous report also made to the same authority, possession over the house is known to be with Gulzar Ahmad with of course a mention of Muhammad Yousaf to have been in occupation as a relation. With the entry of Gulzar Ahmad alone in the Survey Register possession over the premises by Muhammad Yousaf and Muhammad Afzal even if accepted would not be in their own rights. They would be accepted to be staying only on account of the relationship with Gulzar Ahmad. Their position as rightly suggested could be at the most that of a licensee to whom benefit of transfer would not pass under the law. The other evidence in the shape of the judgment by the Rent Controller accepting Gulzar Ahmad alone to be the tenant of the previous transferee i.e. the present petitioner also indicated the same way. Mention of co‑occupation of the house by the present respondents as relations coupled with the fact that they were not held tenants supported the view that stay in the house by the present respondents was only by courtesy. In these circumstances, therefore, possession over the house with the respondents is not satisfactorily proved. With the aforesaid conclusion transfer of the house to the respondents is not well made out." The appellant thereupon invoked the writ jurisdiction of the High Court but did not succeed as it was held that he had no entitlement to the transfer of the house. In this connection the High Court observed: "The contention of the petitioners pertain to questions of facts and cannot be gone into in these proceedings. It is at the most an appreciation of evidence. The Settlement Commissioner had at least three pieces of evidence before him and he based his decision thereon. The petitioners having been found to be licensees of Gulzar Ahmad and not in possession of the property in their own right there is no force in this petition which is dismissed with costs." It was urged on behalf of the appellants that the disputed house could not be disposed of under the earmarking scheme till the disposal of the form which was filed earlier to the drawing of the lot. Admittedly Gulzar Ahmed was in occupation of the disputed house. And being a local he was not eligible for its transfer, therefore, it was listed for disposal under the earmarking scheme. Para 4 of the Schedule provides that where a house is not transferred under paras. l, 2 and 3 it shall be available for transfer to any claimant to whom a house has not been transferred under paragraph No.1 at a price determined on evaluation basis. Settlement Scheme No.V relates to the disposal of a house by earmarking. Paragraph 2 of this Scheme provides for the preparation of list of houses which are available for transfer to claimants by the drawing of lots. These lists when prepared are to be published in the official Gazette and in case of any error the objection is to be filed within 15 days of the publication of such lists as required by paragraph No.3 and if the objection is sustained, rectification is made in the list. There is the statement of the Deputy Settlement Commissioner, Lyallpur, in his order that as Gulzar Ahmad was a local he was not eligible for its transfer; and in the absence of any form for the transfer of the house it was placed in the earmarking list and the house was transferred to Miran Bakhsh by drawing of lots in January, 1960, "meanwhile" Muhammad Yousaf filed N . C . H . form jointly with his son Muhammad Afzal. The learned counsel for the appellants was not able to state as to when the list of the houses required to be disposed of by earmarking was published and as to whether any step was taken by the appellants to get it delisted if they had filed the form earlier to the publication of the list. The order rejecting the form is also undated. This being so the property had to be disposed of by the drawing of lots as it could not then be asserted that the property was not available for transfer under paragraph 2 of the Schedule. On this point the Deputy Settlement Commissioner is not clear and has used the word "meanwhile" which is vague and fails to fix the date of the filing of the N . C . H . form. In this state of facts, it is difficult to accept that the property was not available for transfer and if a vested right is created by the drawing of a lot in favour of respondent No. 2, it is too late in the day to argue that the property could not be disposed of during the pendency of the N . C . H . form. However, in spite of it, what we find from the record is that the competing claim of appellant No. l has been considered by the Settlement authorities in two rounds of litigation. The ultimate decision of the Settlement Commissioner has held him not to be entitled to the transfer of the house as he had no independent possession but was a licensee of Gulzar Ahmad. Gulzar Ahmad had also made attempts to get the property transferred in his own right, but failed which again goes to show that the appellants were not in undisputed possession of the premises in their own right. The learned counsel for the appellants in support of his proposition has relied on Mst. Abida v. Haji Muhammad Boota P L D 1976 S C 41; but that case is distinguishable on facts as it appears from the narration of facts that the form was pending before the auction and before the drawing of the lots under the earmarking scheme in which case the property could not be said to be available for disposal under the earmarking scheme. The High Court has rightly held while accepting the conclusion of the Settlement Commissioner that the appellants had no independent right to the transfer of the house. The appeal is without any substance and is dismissed with costs. M.Y.H./M‑491/S Appeal dismissed.