P L D 1971 Karachi 192 (PLP)

(3) P L D 1960 Kar. 48 allottees need not have appealed against the second allotment order." He next invited my attention to another judgment reported as Ghulam Nizamudin Sabri v, Khan Farzandali Khan (1) and emphasised the following observations at page 23 of the report :‑ "After a careful perusal of the various provisions of the Rehabilitation Act, I am of the opinion that the Deputy Settlement Commissioner had no jurisdiction to allot the roofi. In dispute to respondent No. 3 without taking steps to eject him in accordance with the provisions of section 7 (2) (b) of the Act." He concluded on the premise of the view taken in these judgments that notionally late Hyderbux Jatoi continued to remain in possession even after the property was sealed and its possession was transferred to respondent No.

2. In this context he invited my attention to the fact that after his release from detention late Hyder Bux Jatoi challenged the allotment in favour of respondent No. 2 before the Additional Rehabilitation Commissioner and the Rehabilitation Commissioner by way of appeal and revision though he was not successful in getting the impugned allotment cancelled. Nevertheless these orders had no legal sanctity and therefore respondent No. 2 could not. claim to be in possession of the disputed room in terms of section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to entitle him to its transfer. Sec tion 2(6) of the Act reads : `possession', means possession obtained in pursuance of an order passed on or before the 20th day of December 1958 by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Government: Provided that if a question arises whether an officer was so authorised 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. ' He rested his case on the first part of the detinition and claimed that there was no valid order of allotment in favour of respondent No. 2 and therefore his possession could not be taken into consideration while determining his entitlement.

5. From the facts alleged in the petition, which are not disputed by the respondents, it is clear that the room was sealed. It is also undisputed that there was an allotment in favour of respondent No. 2, though its legality is challenged, and he was put into possession with police aid. If the entitlement had to be decided merely on notional possession (1) P L D 1961 S C 19 then the case of the late Hyderbux Jatoi would rest on a sound footing but this is not so. Under the second proviso to section 2 (6) of the Act, the Central Government issued notifi cation dated 13‑10‑1959 by which it recognised the possession of the occupant even without any order of a competent authority provided it was an undisputed occupation. Doubtless the possession of respondent No. 2 was covered under this notification. According to the case of late Hyderbux Jatoi the respondent No. 2 had remained in occupation from 8th November 1958 and onwards. On the crucial date viz., 20th December 1958, hi occupation was not under challenge in any Court though it could have been challenged within 15 days of the order under section 11 of Act XVII of 1956 and the rules framed thereunder. Therefore, even upon the plea that the orders of the Rehabilitation Authority were a nullity, still respondent No. 2 is entitled to the benefit of the notification dated 13th October 1959 to support his entitlement for the transfer of the disputed room.

6. The second contention is in the alternative and it is emphasised that respondent No. 2's undisputed occupation an other conditions are not established to enable him to take benefi of the notification dated 13th October 1959 and therefore it had no application to his case. This is not so, for all that has to be seen is the undisputed occupation on 20th December 1958, which cannot be denied. The subsequent challenge would not make it disputed though late Hyderbux Jatoi may have good reason for not preferring the appeal and the revision earlier against the allotment. The other requirements of the notification were not disputed and it is therefore not possible to conclude that they had not been complied with. Late Hyder Bux Jatoi while arguing his case before the Settlement Commissioner also did not dispute the occupation of responden No. 2, but rested his contention on section 29 of the Act XXVIII of 1958, as it stood before its amendment by Ordinance No. I of 1959. The Settlement Commissioner has set out the contention of late Hyder Bux Jatol in his order which reads as under:‑ "Apart from the arguments advanced by the learned Advocate of the petitioners, Mr. Hyder Bux Jatoi has himself pleaded his case at great length. His main contention is that even up to this date he and the other members of his family have been in continuous possession of the entire property with the exception of one room from which he was ejected during the Martial Law days. He has emphasised again and again in the course of his arguments as well as in the written arguments filed by him, that at the time of his ejectment on 8‑11‑1958 from the room in dispute the following provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 were in force ‑ 'Section 29.‑(1) Notwithstanding anything contained in any other law for the time being in force, no order of ejectment passed on or after the seventeenth day of February 1958, by any authority in respect of any house or shop shall be given effect to, and where, fn pursuance of any such order, any person has been dispossessed of any such house or shop, he shall be deemed to be in possession thereof. (2) Nothing in subsection (1) shall apply to an order of ejectment passed under this Act, or to any person (other than a claimant) dispossessed in pursuance or as a result of an order passed before the aforesaid date by the Rehabilitation Com missioner or by the Custodian.' Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was subsequently amend with retrospective effect by Ordinance No. I of 1959 and there is no provision in the existing law to safeguard the possession of any person, who may have been ejected after 17‑2‑1958. Mr. Hyder Bux Jatoi, however, has again and again pleaded that the law as it stood on 8‑11‑1958 should apply in his case and he should be deemed to be still in possession of the room from which he was ejected. Consequently, Mr. F. M. Kureshi cannot be treated to be in possession of the room in dispute and has no right to its transfer against his C. H. form."

7. My conclusion, therefore, gains added strength from the factual aspect of the case and accordingly it cannot be disputed now that respondent No. 2 was riot in possession of the disputed room. At this stage Mr. Khalid Ishaq invited my attention to Abdul Ghafoor v. Settlement Commissioner, Rawalpindi (1) in which the Supreme Court while refusing leave held that the possession of the trespasser cannot be deemed to be a possession which can be recognised for the transfer of the house. This case is again distinguishable on facts because it is based on the second notification dated 11th August 1960 wherein the possession of the allottee who was out of possession was recognised in the context that proceedings for ejectment were being taken for the eviction of the trespasser. This is not the case here. No such proceedings were initiated for the ejectment of respondent No. 2 and as such no benefit can be derived from this judgment.

8. Upon the premise that respondent No. 2 was in occupation of the disputed room, there is a clear‑cut finding by the Deputy Settlement Commissioner in his order dated 26th November 1959, while rejecting the L. H. Form of late Hyderbux Jatoi that the disputed room was an independent portion and could be transferred as such. This is what he has said:‑ "Further I inspected the building and am convinced that the portion on the ground floor and the 1st floor above can be vertically separated from the rest of the building and trans ferred as such. The only claimant is Mr. F. M. Kureshi and it can be transferred to him as one house in preference over a local occupant." The Settlement Commissioner also inspected the site and held as under in his order dated 12th June 1967:‑ "I have inspected the building in the presence of the parties (1) 1968 S C M R 11286 on 25‑10‑1956 and arn salisied that the room allotted to Mr. F. M. Kureshi has an independent access and can be utilized separately although there will be some inconvenience to the other occupants of the building." This conclusion of an independent house cannot also be impugned as in any case no person can claim for the transfer of more than one house. Additionally, in view of the order of the Settlement Commissioner that the portion of the building for the transfer of which L. H. Form was submitted was valued at Rs. 18,000.00, it could not also be transferred in terms of para. 3 of the Schedule to a local. In this context, it is doubtful whether late Hyder Bux Jatoi could have a focus standi to question the transfer of respondent No.

2. Mr. Khalid Ishaq was unable to dispute the valuation of the portion of the building particularly in the context of the finding of the Deputy Settlement Commissioner dated 26th November 1959 that it was late Hyder Bux Jatoi who was in possession of the other portion also, though his brother had applied on L. H. Form for its transfer. In the circumstances, I do not see any illegality, in the order of the Settlement Commissioner, particularly when substantial justice has been done to late Hyder Bux Jatoi for he has been transferred both the portions tinder Scheme No. VIII.

9. In the result, I do not see any substance in this petition, which is dismissed with no order as to costs. K. B. A. Petition dismissed.