P L D 1972 Karachi 94 (PLP)

NOORUL ARFIN, J.‑‑This judgment will decide Letters Patent Appeals No. 48 of 1966 and No. 53 of 1966, as both arise from a common judgment given by a learned Single Judge of the High Court on 14‑12‑1965 in Constitutional Petition No. 400 of 1963. The dispute in both the appeals relates to a building situated on plot bearing No. 113, Depot Lines, Cantonment, Karachi. Another building on the same plot, known as "Alice Building", had already been transferred in earmarking to Abdul Hakeem whose legal representatives are parties before us. However, the transfer to Abdul Hakeem is not under challenge, and we, therefore, need not concern ourselves with this transfer. The contest is between one Shaukat Ali and another person, Abdul Mateen, and relates, as we have said, to the other building on the aforesaid plot. Shaukat Ali, the appellant in L. P. A. No. 53 of 1966, was, at relevant times, in possession of part of an outhouse on the aforesaid plot and as such he applied, though belatedly and with the sanction of the Additional Settlement Commissioner, for transfer of the building in dispute. His application was made on 31‑5‑1966 in CH Form. On 6‑8‑1966 his claim for transfer was accepted and a Provisional Transfer Order for the whole building in dispute was issued to him for a consideration of Rs. 38,000.00 by the Deputy Settlement Commissioner. But this transfer was set aside by the Settlement Commissioner on 18‑9‑1962 in suo motu revisional proceedings on the grounds that the transfer to Shaukat Ali appeared to be collusive in nature and that Shaukat Ali being in possession of an outhouse was not entitled to the whole "House" as defined in the Act. Shaukat Ali then came to the High Court in Writ Petition No. 4110 of 1963, which was heard by the learned Single Judge whose judgment is impugned before us. The learned Single Judge upheld the order of the Settlement Commissioner by which the transfer of the disputed building to Shaukat Ali was cancelled, but set aside the remaining part of the Settlement Commissioner's order by which the building had been transferred to Abdul Mate en, the appellant in L. P. A. No. 48 of 1966, in his capacity as an informant. Both Shaukat Ali and Abdul Mateen are aggrieved by this judgment, and therefore have brought the two Letters Patent Appeals which we have been called upon to decide by the present judgment.

2. As far as Shaukat Ali s case is concerned, Mr. Naimuddin contended that the learned Single Judge has not considered the language of para. I of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which contains the provisions for transfer of houses to claimants and others and, further, that the definition of the "house" contained in section 2 (4)of the Act has also been misconstrued in the judgment under challenge in these proceedings. It is to be noted that the learned Judge, in rejecting Shaukat Ali's claim, took the view that an outhouse, not being part of the main building, could not be treated as house at all within the meaning of the definition clause of the Act. But Mr. Naimuddin says that if the definition of the "house" contained in section 2 (4) and provisions of para. 1 of the Schedule to the Act are read together, then one will have to come to the conclusion that the Displaced Persons (Compensation and Rehabilitation) Act, 1958, does not make any distinction between the main building and the outhouse and that outhouse should be treated as part of the whole building itself and, in this view of the matter, if a person is in possession of an outhouse, he should be deemed to be fn possession of part of the house itself, and therefore entitled to its transfer. But as far as this Court is concerned, this whole question now stands concluded by two judgments of their Lordships of the Supreme Court. The first judgment was given on 24th March 1966 in SLPA‑K. 34 of 1966 in Fazalunisa's case, in which their Lordships approved the judgment of the High Court reported as Mst. Fazlun Nisa Begum v. Chief Settlement Commissioner (P L D 1967 Kar, 402). The judgment wag given by Sajjad Ahmad, J., who is now Judge of the Supreme Court. This learned Judge held in this case that reading sec tion 2(4) and para. 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 together the conclusion would be that a servant quarter is not part of the main house or the main building and that a person in occupation of the main house could claim transfer of the servant quarter but not vice versa. As we have stated, this view was approved by their Lordships of the Supreme Court. Their Lordships reiterated their view subsequently in another case reported as Abdul Hamid Khan v. Settlement and Rehabilitation Commis sioner (P L D 1966 S C 719). In view of these clear pronouncements of the Supreme Court, we cannot entertain Mr. Naimuddin's argument that an outhouse or a servant quarter is in fact part of the main house or the main building, and therefore a person in occupation of the former is entitled to claim transfer of the whole building or the whole house as the case may be. The two judgments of the Supreme Court are now conclusive as far as Mr. Naimuddin's argument is concerned, and therefore Shaukat Ali's Letters Patent Appeal is without any merits and is dismissed hereby.

3. Coming now to the Letters Patent Appeal preferred by Abdul Mateen, it is conceded, as it was conceded before the learned Single Judge, that the order of the Settlement Commis sioner whereby the house was transferred to Abdul Mateen as informant could not be sustained in law. But Mr. S. M. Raza repeated his contention, which he had put forth before the learned Single Judge, that once it had been found that Shaukat Ali was not entitled to the transfer of the building in dispute, then he had no locus standi to challenge the transfer of the building to Abdul Mateen. For this purpose, Mr. S. M. Raza placed reliance on Masitullah v. The Chief Settlement Commissioner (P L D 1965 Lah. 672), in which judgment reference is made to the observations of their Lordships of the Supreme Court in the judgment in SPLA No. 172 of 1964 (Imdad Ali Malik v. Settlement Commissioner). But Mr. S. M. Raza's argument ignores two Points (1) that Shaukat Ali maintains that outhouse is part of the main building or main house and that since he is in possession of a part thereof, he is entitled to challenge the transfer of the building to Abdul Mateen, the informant, and (2) the whole order of the Settlement Commissioner came up for review of the High Court in the petition in which the impugned judgment was given, and therefore it cannot reasonably be contended that the High Court should have confined itself only with one part of the order, and should have ignored the second part o: the order by which the building was transferred to Abdul Mateen even though this transfer could not be sustained in law. In the eases referred to by Mr. S. M. Raza, the situation which is before us, and which was before the learned Single Judge, did rot arise. In the present case the whole order of the. Settlement Commissioner came under challenge in a petition under Article 98 of the late Constitution. The learned Single Judge upheld the validity of the first part of the order by which transfer to Shaukat Ali was cancelled, but in doing so he also noted the illegality of the transfer of the disputed building to Abdul Mateen, the so‑called informant. Since the whole order was before the learned Single Judge, it was quite competent for him to set aside the order as a whole. The cases on which Mr. S. M. Raza has placed reliance would not apply to the facts of the two appeals before us. Accordingly, we find no substance in Abdul Mateen's appeal also.

4. In view of the above conclusions, both the Letters Patent Appeals, namely, No. 48 of 1966 and No. 53 of 1966, are dismissed. We make no order as to costs as the two appeals were in the nature of cross appeal.

5. It was brought to our notice that the learned Single Judge had directed that the disputed building should be put to auction but that, in violation of this direction, the Settlement Department was intending to transfer the property to one Zahoor -ul‑Haq, and therefore this person was joined as party in the present proceedings. This Zahoor‑ul‑Haq is represented before us by his Advocate, Mr. M. M. K. Zai. Mr. Zai. however, states that Zahoor‑ul‑Haq surrendered his rights in favour of some lady, namely, Mst. Hamida Shameem. This Hamida Shameem has also made an application for joinder as party through her Advocate, Mr. Zai. We have heard Mr. Zai. We are of the view, that the Settlement Department cannot act in variation of the order of the learned Single Judge by which the property had been ordered to be put to public auction, unless the Settlement Department was aggrieved by this part of the judgment and had challenged it in appeal. Since the Settlement Depart ment has not come in appeal itself, this part of the judgment of the learned Single Judge is binding on the Department. Mr. Syed Wasim Hamid Rizvi, Settlement Commissioner (Legal) is before us, and he has duly taken note of our observations. K. B. A. Appeals dismissed.