1973 PLP 402 (SCMR)

HAMOODUR RAHMAN, J.‑The dispute in this case relates to, the transfer of two shops being Nos. P‑70 and 7i/1, situate at Gole Bazar, Lyallpur. One of these shops was in possession of some other persons but the petitioner claimed that the other shop was in possession of his son Siraj Din under a valid allotment order. On this basis he applied for the transfer of the shop on a C. S. form and obtained an order of transfer from the Deputy Settlement Commissioner on the 3rd of December 1959. The others then went up in appeal before the Additional Settlement Commissioner. They claimed that the two shops really constituted one unit and that neither the petitioner nor his son was in posses sion thereof, as it had been rented out to a firm called Muhajir Karyana Store. It was then discovered that another shop in Chak No. 49‑G. 0. was in possession of the petitioner where he and his son were carrying on business. The latter shop was actually. allotted in the name of the petitioner and that both father and son had been jointly paying rent therefor. The Additional Settle ment Commissioner, therefore, cancelled the transfer in favour of the petitioner and transferred both the shops to the other claimants, regarding them as a single unit. The petitioner went up in revision before the Settlement Com missioner. The latter took the view that the two shops were inde pendent commercial units and could not, therefore, be transferred to the other claimants. As for the non‑transfer of the shop to the petitioner the finding of the Additional Settlement Commissioner was upheld. The shop transferred to the petitioner was, however ordered to be put up to auction. The petitioner went up to the High Court under Article 98 of the Constitution but the petition was rejected on the ground that the petitioner and his son had not been found to be in possession of the shop before the prescribed date and that this finding was not based upon no evidence, for there was abundant evidence on the record upon which the Settlement Authorities could have come to the view that neither the petitioner nor his son were in possession immediately before the 26th or December 1958. This decision has been upheld on a Letters Patent Appeal by a Division Bench also. The petitioner now seeks special leave to appeal and it is contended on his behalf that the findings of the Settlement Authorities have been vitiated, because they have not taken into consideration the fact that possession under section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 also includes constructive possession through a tenant. In any event, it is urged that the Settlement Authorities had come to no clear finding that either the petitioner or his son was not in posses sion on the relevant date. The Settlement Authorities, it is further urged, have failed to notice the fact that even after the appeal was disposed of by the Additional Settlement Commis sioner the transferees of the shop room actually gave a notice under section 30 of the Act of 1958 to the petitioner's son calling upon him to pay rent with effect from 3‑4‑1960. We see no substance in any one of these contentions. `Posses sion' under section 2 (6) of the above Act cannot include merely constructive possession through a tenant. The Settlement Commis sioner in his revisional order has come to a definite finding that neither the petitioner nor his son were "in possession of this property immediately before the 20th of December 1958." Learned counsel is clearly under a misconception in thinking that no such clear finding has been given. As for the notice under section 30 evidently that was a misconceived notice and it can in any event have no relevance to the question of the entitlement of the petitioner. The shop has now been put up to auction and, therefore, even the transferees of the other shop have no longer any right in respect thereof. We see no reason, therefore, to interfere in this matter. This petition is, accordingly, dismissed. Leave refused.