P L D 1967 Lahore 167 (PLP)

House No. 6, Kucha Gian Singh Street No. 6, Sheert Mahal Road, Lahore, was in possession of Muhammad Ismail, Ghulam Hussain Khokhar, Mst. Aisha Bibi and Mst. Sabra Begum the present petitioner. In the first beginnings of the settlement operations Muhammad Ismail and Mst. Aisha Bibi filed form C.H. No. 3943 while Ghulam Hussain Khokhar filed form N.C.H. No. 387 and all of them sought the transfer of the said house in their favour. On the 2nd of January 1960, the Assistant Settlement Commissioner, Circle II, Lahore, held that the house was indivisible and Ghulam Hussain Khokhar being a non claimant was not to be preferred over Muhammad Ismail and Mst. Aisha Bibi claimants, therefore, he rejected the form N.C.H. of Ghulam Hussain Khokhar, and transferred the property in sahran favour of Muhammad Ismail and Aisah Bibi. Against this order of Begum transfer a joint appeal was filed by Ghulam Hussain Khokhar and transfer the property and his wife Mst. Sabra Begum before the Additional Settlement Commissioner, Lahore, in which inter alia it was pleaded, vide memo of appeal, Annexure C, that Ghulam Hussain Khokhar Fazle Ghani, and Mst. Sabra Begum (appellants before the Additional Settlement Commissioner) were prior allottees and in possession of the bigger portion of the house under dispute. The' learned Additional Settlement Commissioner examined the respective merits of the parties and observed that Ghulam Hussain Khokhar was a non‑claimant allottee with effect from the 25th of May 1948, while Mst. Sabra Begum petitioner (appellant No. 2) had "unfortunately" submitted her form on the 12th of January 1960 but the house in dispute had already been transferred in favour of respondents Muhammad Ismail and Mst. Aisha Bibi on the 2nd of January 1960, therefore, her form was not entertainable. The petitioner and her husband filed a joint revision before the Settlement Commissioner who accepted the same and set aside the order of the Assistant Settlement Commissioner as well as the appellate order of the Additional Settlement Commissioner by which the house was transferred as one indivisible unit in favour of Muhammad Ismail and the case was remanded for fresh decision on merits. This revisional order of Malik Fateh Khan dated the 26th of October 1960, was not challenged on behalf of respondents Muhammad Ismail and Mst. Aisha Bibi before any appropriate forum or authority and they actively participated in those proceedings before the subordinate Settle ment Authorities.

2. In remand proceedings Mr. Muqarrab Khan, Additional Settlement Commissioner, Lahore, examined the site plan of the house and held that it was an indivisible unit but he rejected the claim of Ghulam Hussain Khokhar as being non‑claimant. While considering the case of Mst. Sabra Begum as a claimant the learned Additional Settlement Commissioner held that since the property had already been disposed of before Mst. Sabra Begam could file her form C.H., therefore, she was not eligible for its transfer. Ultimately he dismissed the appeal of Ghulam Hussain Khokhar and Mst. Sabra Begum. Both, husband and wife, went in revision which was taken up by Mr. S. M. Azhar, Settlement Commissioner, Lahore, on the 19th of May 1964. Before Mr. Azhar the allotment order of Muhammad Ismail respondent was disputed but the contention of the petitioners was repelled by the learned Settlement Commissioner and it was held that Muhammad Ismail was an allottee. The claim of Ghulam Hussain Khokhar 'was once again thrown out on the ground that he was a non‑claimant and cannot have preference over the respondent. So far as Mst. Sabra Begum was concerned, the learned Settlement Commissioner held that she, though a claimant, is a non‑allottee and has filed a belated form C.H. and claims allotment through her husband, therefore, as against Muhammad Ismail, who is a claimant and a prior allottee she has no better entitlement.

3. In this writ petition the order of the learned Additional Settlement Commissioner passed by him in remand proceedings do the 9th of January 1961, as well as the order of Settlement sabran commissioner dated the 19th of May 1964, were impugned on Begum the ground that the Settlement Authorities had acted illegally Mohd and without lawful authority in transferring the house in dispute Ismail in favour of Muhammad Ismail respondent without taking into Fazle Ghani consideration the decision of the Central Government vide J Nlemo No. 3223‑PI‑Reh.‑60, dated the 7th of March 1960, printed at page 123 of the Settlement Manual (Old Edition) and in this context it was submitted that even if the contention of the petitioner about her own allotment was to be ignored the petitioner could still compete for the transfer of the house with respondent Muhammad Ismail as a claimant allottee on the strength of the above notification and she should have been treated at par as a claimant allottee with the respondents. To appreciate the contentions raised on behalf of the petitioner it will be useful to reproduce the above notification, which is to the following effect: ‑‑ "The Central Government has decided that where a house is in the possession of the husband in pursuance of the order on or before the 20th day of December 1958, by a competent authority, his wife, if staying with him, will also be deemed to be in possession." I am of the opinion that the above decision was given by the Central Government in exercise of its powers under Second Proviso to subsection (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and this was meant for the purposes of removing hardships in those cases where a husband or wife etc., were not eligible to claim the transfer of property under their possession under paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabi litation) Act, 1958, although one of them might be an allottee of the said property. To illustrate it further, I may say that as in the present case the husband is a non‑claimant and the wife is a claimant but the husband was the allottee and the wife was the non‑allottee the wife could not claim the transfer of the house in her possession on the strength of the allotment of her husband under paragraph 1 of the Schedule, therefore, decision was given by the Central Government to extend the definition of possession and the wives were also deemed to be in possession if the husband was in possession of a property pursuant to an order of allotment passed on or before the 20th day of December 1958. In this view of the matter it was incumbent upon the Settlement Authorities to have considered the effect of the above decision of the Central Government and to determine the merits of the case in accordance with the extended definition of possession treating Mst. Sabra Begum as an allot tee claimant on the strength of the order of allotment of her husband which was undisputed. The Settlement Authorities treated th petitioner as an indirect allottee claiming on the strength of he husband's allotment and as such she has been wrongfully elimi nated without considering the effect of notification mentione above.

4. The admitted position of the facts, as it appears from the record and has not been controverted by the learned counsel for the parties, is that Ghulam Hussain Khokhar, the husband of the petitioner as well as Muhammad Ismail both are allottees and in these circumstances it was incumbent upon the Settlement Authorities to find out who was prior in possession because Mst. Sabra Begum was eligible to compete with other occupants of the house on the strength of the allotment of her husband being a claimant displaced person.

5. Learned counsel for Muhammad Ismail respondent has disputed the authenticity of Annexure A, the allotment order, which is claimed by the petitioner to be in her name. But the point which falls for determination is what is the position of the allotment order of the husband of the petitioner because consist ently the petitioner has b.‑en asking for the transfer of the house on the strength of the allotment order of her husband which is apparent from the copy of the form C. H. which was filed by her on the 12th of January 1960, as well as the first grounds of appeal which were filed on her behalf in the Court of Addi tional Settlement Commissioner, Lahore, Aunexure C. The contention of the learned counsel for the petitioner, that Mst. Sabra Begun is claiming the transfer of the house as an allottee in her own right for the first time before this Court, seems to have some force but I do not attach any importance to her claim of allotment in her own name. The entire case hinges on the interpretation of extended definition of possession according to the above‑mentioned decision of the Central Government.

6. As I have already held that Mst. Sabra Begum is eligible to compete for the transfer of the house with Muhammad Ismail and Mst. Aisha Bibi respondents it is, therefore, necessary for the Settlement Authorities to come to a definite conclusion about their respective dates of possession. The Additional Settlement Commissioner held Ghulam Hussain Khokhar to be an allottee with effect from the 25th of May 1948. The allotment order of Muhammad Ismail respondent, which was shown to me in Court, bears the date of 21st of June 1948. However, these are disputed questions of fact and since Mst. Sabra Begum was eliminated on account of the fact that she was not allottee of the house and was claiming the transfer of the property on the strength of the allotment of her husband which premises was totally incorrect I would, therefore, quash the order of the Addi tional Settlement Commissioner dated the 9th of January 1961 and Settlement Commissioner dated the 19th of May 1964, and remand the case to the Additional Settlement Commissioner, Lahore, to decide it afresh keeping in view the interpretation which has been given by me to the decision of the Central Government noted above. There will be no order as to costs. K. B. A. Petition accepted. Case remanded.