2002 PLP 793 (SCMR)

CH. MUHAMMAD ARIF, J.‑‑‑A brief resume of the facts leading to the instant appeal with leave of this Court against the judgment dated 13‑4‑1993 passed by a learned Judge in Chambers of the Lahore High Court, Lahore in Writ Petition No. 167‑R of 1990, dismissing the: same and upholding order, dated 15‑4‑1990 of the Notified Officer, is that the appellant is a claimant displaced person from Jammu and Kashmir. He was in possession of House No. 11/106 Pala Shah Gate, Sialkot since Partition. This house is located on 4‑1/2 Marlas and consisted of 8 rooms. He applied for the transfer of the house in question on the basis of KCH Form. Being the sole applicant, the whole house was transferred to him by the Deputy Settlement Commissioner, Sialkot, hereinafter referred to as D.S.C. on 17‑6‑1961. One Eida, predecessor‑in‑interest of respondent No.6, herein, made a time‑barred appeal against the order of D.S.C. before the then Additional Settlement Commissioner, Sialkot, hereinafter referred to as Additional Settlement Commissioner, seeking protection under clause (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (No.XXVIII of 1958). The Additional Settlement Commissioner accepted the appeal on 9‑1‑1963 by directing the transfer of a portion of the house, in occupation of the predecessor‑in‑interest of Mst. Sardar Begum namely (1) Edia and (2) Muhammad Shafi (also refugees from J & K). The Additional Settlement Commissioner found it as a fact that 4 rooms were in possession of the appellant and the remaining 4 rooms were in possession of afore referred Eida and Muhammad Shafi. A revision petition against the appellate order of Additional Settlement Commissioner before the, Settlement and Rehabilitation Commissioner, Lahore Division, Lahore, hereinafter referred to as Settlement Commissioner, was dismissed‑on 2‑4‑1964. The Settlement Commissioner observed that the appellant cannot be transferred the portion against which protection is allowed and that such portion can be disposed of subsequently either by restricted earmarking or auction between the Jammu & Kashmir refugees. Appellant‑Munshi Jan Muhammad remained unsuccessful in his Constitutional petition bearing Writ Petition No.1475‑R of 1.964 before the Lahore High Court vide judgment, dated 10‑3‑1971. His Letters Patent Appeal No.266 of 1971 was also dismissed by a learned Division Bench of the High Court on 18‑10‑1983. The same was the fate of appellant's C.P.S.L.A. No.1315 of 198,3 before this Court which was dismissed on 1‑3‑1987.

2. At this juncture it may be stated that possession of Eida and Muhammad Shafi over 4 rooms i.e. 2 rooms each having been found as a fact by the Settlement Authorities was upheld by the High Court in judgment dated 10‑3‑1971 (in Writ Petition No. 1475‑R of 1964). Further, neither Muhammad Sharif (respondent No.3 herein) nor Galab Din and Muhammad Sadiq (respondents Nos.4 and 5 herein) were in possession of any part of the house at the time of its transfer to the appellant as also at the time of grant of protection of possession to Eida (predecessor‑in‑interest of respondent No.6/Mst. Sardar Beg6tm) and Muhammad Shafi (not at party' here). This situation also caters to another position i.e., that respondents Nos.3 to 5 had not applied for transfer of any portion of the disputed house between the years 1961 and 1987.

3. Respondents Nos.3 to 5 Muhammad Sharif, Gulab Din and Muhammad Sadiq are alleged to have filed 3 transfer forms respectively on 9‑10‑1973, I3‑10‑1973 and 12‑10‑1973 under Settlement Scheme No.VIII. Respondent Additional Settlement Commissioner took up the forms of respondents Nos.3 to 5 and transferred rooms Nos.5, 6, 7 (on the ground floor) to Gulab Din and room No.3 (on the ground‑floor) as also room No. 10 (on the 1st floor) to Muhammad Sharif and rooms Nos.4 and 8 (on the ground floor) to Muhammad Sadiq. As regards respondent No.6/Mst. Sardar Bebum daughter of Eida, it was observed that as she was occupying rooms Nos.11 and 12 (on the 1st floor) which are now in dilapidate condition, she may, if so desired, reconstruct the said rooms. This happened on 25‑4‑1990.

4. It was order, dated 25‑4‑1990 which was unsuccessfully challenged by the appellant before the High Court through Writ Petition No. 167‑R of 1990. The arguments on behalf of the appellants, before the High Court, were that; (i) the whole house Was transferred to the appellant by the competent Authority as one unit, (ii) what has been transferred to Nos.3 to 5, i.e. rooms Nos.3, 4, 5, 6, 7 and 8, is in fact a part of the house in question which does not qualify for such treatment, (iii) order, dated 17‑6‑1961 of D.S.C. had put a seal of finality on the treatment of the house as one unit and therefore, the subsequent conversion of an 8‑room house into one of 15 rooms cannot be countenanced and (iv) in line with the cases reported as Messrs Talib Hussain Noor Hussain v. Muhammad Hussain Siddiqui and 3 others (1968 SCMR 1316) and Mian Zahoor Ahmed v. Mst. Khurshid Ishrat and others (1988 MLD 1966) the appellant has a better right for the Lranster of the whole house, were considered and repelled as below:‑‑ "

3. There is no force in the contention of the learned counsel for the petitioner inasmuch as both the parties have fairly and just been accommodated by the learned Notified Officer vide the order, dated 15‑4‑1990. In other words, the house has been found divisible by the competent Settlement Authority. In my view the impugned order has definitely been passed in line with the rule laid down in Mst Shah Jahan Begum v. Mst. Shabbir Fatima and another (PLD 1991 SC 614) and Mst. Shahzada Begum v. Ahmad Kamal and others (PLD 1991 SC 617). I have not been persuaded to interfere with the impugned order in the given circumstances. Learned counsel was unable to point out any legal infirmity much less jurisdictional defects in the impugned order. There is, therefore, no substance in the petition, which is hereby dismissed leaving the parties to bear their own costs."

5. Leave was granted to consider the contention on behalf of the appellant that there was no pending matter and the Notified Officer had no jurisdiction to re‑open the case and transfer the house in dispute to respondents Nos.3 to 5, within the contemplation of the Evacuee Property and Displaced Persons Laws (Repeal) Act (No.XIV of 1975).

6. Mr. Ch. Hafeez Ahmad, learned Advocate Supreme Court appearing in support of this appeal, has referred to the orders of D.S.C., Additional Settlement Commissioner and Settlement Commissioner respectively, dated 17‑6‑1961, 9‑1‑1963 and 2‑4‑1964 to contend that the matter in relation to the transfer of the house in dispute to the appellant as well as predecessor‑in interest of respondent No.6/Mst. Sardar Begum daughter of Eida, had attained finality and the same having been upheld by the High Court (in Writ Petition No. 1475‑R of 1964 and in L. P. A. No. 266 of 1971) which were not interfered with by this Court on 18‑10‑1983 in C. P. S. L. A. No. 1315 of 1983 on 1‑3‑1987, to contend that the provisions of Settlement Scheme No.VIII were not attracted to the case. Respondents Nos.3 to 5 were not in possession of any part of the disputed house before the target date i.e., 20‑12‑1958, in terms of clause (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act (No.XXVIII of 1958). According to him, the contesting respondents Nos.3 to 5 are related to the appellant and they were allowed to improvise some accommodation to put up residence in the house in dispute with consent of the appellant as well as deceased Eida predecessor‑in‑interest of respondent No.6 Mst. Sardar Begum.

7. Nobody has entered appearance on behalf of either the official respondents or even respondents Nos.3 to 5 and same is the position with regard to respondent No.6.

8. We have considered the arguments addressed at the bar and have also gone through the available material with the help of Mr. Ch. Hafeez Ahmad. A perusal of the material clearly indicates that the transfer of the house in question to the appellant and Messrs Eida and Muhammad Shaft between the years 1961 and 1963 had put at rest the controversy between the said transferees, then. Even the alleged submission of applications by respondents‑‑Muhammad Sharif, Gulab Din and Muhammad Sadiq under Settlement Scheme No.VIII in the year 1973, claiming possession thereof respectively from 1972, 1973 and since 1947, could not be sustained in view of the orders trade between 1961 and 1983. The contention of the learned counsel that respondents Nos.3 to 5 came into the picture only as licensees from the appellant etc. is not without force. Had any one of the respondents any cause to complain against the transfer of house in question to either appellant‑Munshi Jan Muhammad or Messrs Eida and Muhammad Shaft, they would have joined the arena much before and not waited for the year 1973 to claim protection of their alleged possession. Their absence to put in appearance in the case speaks volumes about the nature of their alleged possession.

9. For all that has gone before, the instant appeal is allowed, judgment in appeal dated 13‑4‑1993 is set aside and the judgments of the Additional Settlement Commissioner and Settlement Commissioner respectively dated 9‑1‑1963 and 2‑4‑1964, are upheld. No costs. S.A.K./J‑4/SC Appeal allowed.