1994 PLP 458 (SCMR)

(iii) The General Attorney for Dr. Ghulam Bheek while filing the Form for its transfer appeared to have inserted his own name alongwith his brothers and sisters as claimants for the transfer of the house and it was against the instructions of Dr. Ghulam Bheek who was kept in dark about it; (iv) The appellants of Civil Appeal No.213 of 1987 could not be held to be in undisputed possession where the house stood allotted to Dr. Ghulam Bheek who had been in possession and paying its rent since 1947 to the Department. On these findings the Deputy Rehabilitation Commissioner held Dr. Ghulam Bheek to be entitled to the transfer of the entire property as allottee with possession.

4. An appeal was taken to the Additional Settlement Commissioner who dismissed it by a very short order also holding that the construction of the house is such that it cannot be divided. A revision was taken to the Settlement Commissioner who held that the authority of the Attorney of Dr. Ghulam Bheck did not extend to advancing his own claim in respect of this allotted house and rejected the revision petition. A Constitution Petition was then filed which too was dismissed. A Letters Patent Appeal was however partially allowed, the Earned Judges in appeal after holding as hereunder:‑‑ "In view of the findings of fact recorded by all the authorities on the Settlement side which have been examined and upheld by the learned Single Judge, it is difficult to interfere in the impugned orders. Moreover, the writ petition was pressed only for Ghulam Hamid, appellant No.l and Mst. Amtur Rashid, appellant No.3." proceeded to pass an operative order as hereunder:‑‑ "In view of the fact that the transferee of the premises has agreed to surrender the demarcated portion on the left hand side, heirs of Ghulam Hameed will have the upper portion in their possession of the left hand side building and Mst. Amtur Rashid the ground floor thereof alongwith Mst. Rafiqan Begum. Mst. Amtur Rashid has been allowed the right of residence for her life in the portion where she is at present living in the main building on the right‑hand side. She is unmarried. Both the sisters will have the ownership of the ground floor and if they continue to live where-ever they are, there should be no problem. Title is determined and not objected to by Mst. Amtur Rashid as well as by Babar Ali, son of Mst. Rafiqan Begum who heard the order. Moreover, it may be noted that the writ petition had not been pressed on behalf of Mst. Rafiqan before the learned Single Judge. Therefore, she having been given something cannot legitimately complain. As regards the appellant No.2 who has since died and is survived by his widow Mst. Qaisara Maryam, it may be recapitulated that it was stated by the parties and their learned counsel that the claim of her husband Ghulam Saeed Khan, deceased appellant No.l had been utilised in getting a house in possession of a School transferred in his favour which was subsequently sold. Therefore the claim of Mst. Qaisara Maryam's husband Ghulam Saced Khan, deceased appellant No.2 having been utilised and she having been given the right of residence till her life having no children, where she is at present residing, on the right hand side of the main building by its transferee Dr. Ghulam Bheek, respondent No.1, no order of transfer in her favour is called for. She will of course be entitled to enjoy the possession and right of residence where she is residing at present. Thus, all the parties are settled. If avarice does not possess any one, all should live happily hereafter. All have got enough, probably more than many others. To conclude and clarify it is reiterated that the transferee respondent No.1 Dr. Ghulam Bheek shall have the premises excluding the demarcated portion BACDEFGHI. He allows and Mst. Qaisara Maryam widow of his brother Ghulam Saeed Khan, appellant No.2 and Mst. Amtur Rashid, his sister appellant No.3 will be entitled to live where they are living at present till their life‑‑we hope long. They shall use the exit and entry as at present. The demarcated portion shall vest‑‑upper floor in the heirs of Ghulam Hamid Khan, deceased appellant No.l and ground floor in Mst. Amtur Rashid, appellant No.3 and Mst. Rafiqan Begum, appellant No.4 jointly in equal share:' Such a disposal of the case property has aggrieved both the contesting parties.

5. After hearing the learned counsel for the parties and after obtaining written arguments from them to supplement the oral hearing we find that an important question to be determined in the case was as to who was the allottee of the house. There are two factors which convincingly suggest that it was Dr. Ghulam Bheek and not his father. At page 39 of Civil Appeal No.213/87 in statement of facts in clause (II) of paragraph 2 of the Constitution Petition, the other brothers and sisters of Dr. Ghulam Bheek stated as hereunder:‑‑ "That during the lifetime of Ch. Ghulam Farid Khan, Dr. Ghulam Bheek Khan, Respondent No.l, being the eldest son present at Lahore and also being influential on account of his status in life, was looking after the affairs of the house. He being in service was also paying the rent of the property. This was done because it was economical and favourable to the parties, as only 10% of the pay of respondent No.l was being deducted towards the rent of the property, as against the rent of Rs.278 per month." This will clearly indicate that the allottee was Drbhulam Bheek because had it been anyone else, recovery of rent would not have taken place from his pay bills. The Deputy Settlement Commissioner has taken note of it that the Accountant‑General was making the necessary deductions from the Salary Bills of Dr. Ghulam Bheek. Such an official act cannot be treated as a family arrangement to sustain the claim of allotment existing in the name of someone else. The second and an equally important indication that Ghulam Farid Khan, the father of the appellant (Dr.Ghulam Bheek) was not the allottee is borne out by the C.H. Form that was filed by the Attorney. The instructions on the subject to be found at page 35 of the manual of Settlement Law & Procedure [paragraph 5(c) of the Scheme for Transfer of Houses and Shops to Persons in Possession (Settlement Scheme No.1 are as hereunder:‑‑ "An application on behalf of a deceased claimant, non‑claimant displaced person or local may be submitted by his successor‑in -interest: Provided that where there are more than one successor, the application may be submitted by them jointly: Provided further that where an application is submitted by the successor‑in‑interest of a deceased person the applicant shall enclose the following documents with his application: (1) deceased person's :lame and date and place of his death; (2) death certificate from a local body or a registered medical practitioner or a gazetted or commissioned officer; (3) particulars of all heirs of the deceased and their respective addresses so far as they are known to the applicant; (4) a true copy of the will or other documents, if any, relating to the succession on which the applicant relies for having succeeded to the property of the deceased; (5) an affidavit in support of the particulars specified in items (1) and (3) authenticating the facts." If the application had been made by the Attorney as successor of Ghulam Farid Khan and on the basis of his allotment, then this procedure had to be followed which was in fact not followed.

6. If the allottee of the house was Dr. Ghulam Bheek, as it had been found by all the authorities to be so and also borne out by the conduct of the parties, the Attorney should not have ‑ acted on the basis of that Power of Attorney and made an application for the transfer of the house to himself and others. That was evidently an act which was in conflict with the fiduciary position enjoyed by him. He was, in making that application in breach of the confidence.

7. As regards the ground that in spite of the allotment being in the name of Dr. Ghulam Bheek, his brothers and sisters who enjoyed the property in view of their relationship with the allottee, should be treated equally as allottees of portions of it so as to exclude and oust the possession of Dr. Ghulam Bheek is concerned, it is untenable. Such a possession cannot be either undisputed, or as allottee, such as to entitle them to compete with the allottee.

8. The High Court's judgment in so far as it divides the property for the first time, creates life interest in the same, appears to be manifestly against law. The only justification that has been found by the High Court is the agreement of the transferee of the premises to surrender the demarcated portion and to the creation of such an interest in favour of the ladies. The learned counsel has defended the result of such an agreement or concession on the basis of our judgment in A.R. Khan v. P.N. Boga through Legal Heirs (PLD 1987 SC 107). Not only we find that Dr. Ghulam Bheek has been contesting the claim of these transferees seriously and consistently, there is no such agreement recorded or appears in writing in order to determine its limits and the conditions on which such a concession was made. In the absence of there being a proper record of the concession or the agreement, the awareness of it by the party making it and it being manifestly against the stand taken by the party in writing, the precedent of A.R. Khan's case (PLD 1987 SC 107) will not be available. Such an arrangement being clearly against law, as the Displaced Persons (Compensation & Rehabilitation) Act does not envisage creation of life interest, the order cannot be sustained.

9. Finally it was contended that the property is extensive and the result of such a transfer in favour of Dr. Ghulam Bheek, as was made by the Settlement Authorities, has the effect of allowing him more than three times plinth area which the law does not permit. This question has not been examined by any of the Settlement Authorities as it was not raised before them. This is a question which is raised for the first time in this Court. We do not consider it proper to allow it at this stage and to be raised in this manner.

10. In view of the facts above, the appeal of Dr. Ghulam Bheek (Civil Appeal No.214 of 1987) is allowed, the judgment under appeal is set aside and that of the learned Judge in Chambers is restored. The other appeal of his brothers and sisters (Civil Appeal No.213 of 1987) fails and is dismissed. No order is made as to costs. A.A./G‑419/S Order accordingly.