1977 PLP 275 (SCMR)

MUHAMMAD AKRAM, J.‑This is an appeal, by special leave, from the judgment dated 21st February, 1966, passed by a Division Bench of the then High Court of West Pakistan, Lahore dismissing the Letters Patent Appeal filed by the appellants against the respondents herein. Briefly the relevant facts are these. Property No. P‑12, Ward 11, Lyallpur is a three storeyed building. The residential portion on the first and second floors is in the possession of respondent No. 1, while the shop on the ground floor along with the three rooms at its back is occupied by the appellants. The dispute in this appeal before us is confined to the three rooms on the ground floor at the back of the shop proper. They are inter‑connected with the shop through the intervening doors and according to the appellants, are appurtenant to and form an integral part of the shop itself. The shop opens in the Katchery Bazar side in a predominantly .commercial area but the rooms in dispute also open into a lane at back. The appellant No. 1 is a non‑claimant displaced person and filed an NCS form for the transfer of the shop to him while appellant No. 2, who is his father, and filed a CS form for the transfer, presumably (as it appears from the order passed by the learned Single Judge) on the strength of the possession of his son. Respondent No. 1 applied for the transfer of the house to him on a CH form. On the 21st December 1959, the Deputy Settlement Commissioner‑II, Lyallpur transferred the entire property to the appellants. This gave rise to an appeal filed by respondent No. 1 against the transfer. On the 16th April, 1960, the Additional Settlement & Rehabilitation Commissioner, Lyallpur Region, Lyallpur partly accepted the appeal of the respondents ex parte against the appellants herein. He observed that the property was divisible and gave the, residential portion on the first arid second floors to respondent No. 1 and the shop proper to appellant No. 1 and reserved the three rooms. In dispute for a further order in tee matter. In continuation of iris previous order on the 14th May 1960, the Additional Settlement & Rehabilitation Commissioner, Lyallpur passed a further order giving the whole of the ground floor including the shop end the three rooms at the hick, occupied by the appellants to go to them. Dissatisfied with the two orders, the parties filed three partite revisions against them. Appellant No. 1 laid his claim to the entire house waffle respondent No. 1 canvassed for the transfer of the three rooms at the back of the shop on the ground floor as a part and parcel of the residential unit above. The three revisions were disposed of by a consolidated order passed by Mir Ajam Khan, Settlement & Rehabilitation Commissioner, Peshawar at Lahore on the 27th April, 1961. He found that ‑Ghulam Jilani, respondent, was not entitled to the transfer of the three rooms in dispute which were not in his actual possession. Similarly, Mohammad Siddique was not entitled to the transfer of the rooms to him, because, although he was in possession, but there was nothing to show that he was the allottee thereof. He, therefore, held that both the contending parties were ineligible for the transfer of these rooms in question to them and reserved them for disposal by auction. This order gave rise to two further revisions against it. They were disposed of by Khan Farzand Ali Khan. Settlement Commissioner with powers under section 20(2) of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, Sargodha Division at Lahore on the 28th July lV'

61. In his opinion, the three rooms in dispute constituted a separate residential unit by itself. In that connection he observed :‑ "It is contended by the counsel for Muhammad Siddique that the whole of this property i.e. shop‑cum‑residence should be crewed as one unit and transferred to Muhammad Siddique on his NCS form. This is impossible. Since the property is residences‑cum‑shop, these are to be treated as three units and not one. Moreover, no residential portion of this property can be transferred to Muhammad Siddique on his NCS form. His revision petition is, therefore, dismissed. Similarly, in rejecting the claim of respondent No. 1 to the transfer of these three rooms in dispute to him as part and parcel of his residential portion, Khan Farzand Ali Khan in the same order proceeded to observe that :‑-- "The residential portion at the back of the shop is altogether a separate unit. It is in no way connected with residential portion on the top of the shop. In his opinion, therefore, the learned Settlement and Rehabilitation Commissioner was justified its thus transferring the portion in dispute which was a "self‑contained residential unit" to the auction pool. He, therefore, rejected both the revisions before him. This order gave rise to two separate writ petitions filed by the parties against it. But, on the 20th October 1965, a learned Judge of the then High Court of West Pakistan dismissed both the petitions. He observed that the Settlement authorities having lawfully exercised the exclusive jurisdiction vested in them under the second proviso to subsection (12i of section 2 of the Displaced Persons (Compensation & Rehabilitation) Act, in dividing the property, the High Court would be reluctant to interfere with the order in the exercise of the extraordinary jurisdiction vested in it under the law. He observed that substantial justice had beers done between the parties and there was no good reason to interfere with the final order thus passed try the Settlement authorities. A Letters Patent Appeal filed by the appellants herein against the order was dismissed in limine by a Division Bench of the High Court on the merits on the 21st February, 1966 In the opinion of the Court the Settlement authorities had found that the building was capable of division into a shop and two independent residential units. The shop proper was transferred to the appellants who were its allottee in possession. Similarly, the residential portion above was transferred to Ghulam Jillani, respondent No. 1 who was entitled to its transfer as an allottee. The three rooms in dispute forming an independent unit, were reserved for disposal by auction. In the opinion of the Court, this order passed by the Settlement authorities did not suffer from any illegality or lack of jurisdiction and, therefore, the writ petition of the appellants was rightly dismissed. We have heard the learned counsel for the two contesting parties appearing before us in this appeal. The learned counsel for the appellants laid stress before us to contend that the Chief Settlement Commissioner had failed to exercise the jurisdiction vested in him in law by observing that it was impossible to agree to the contention of the appellants for the transfer of the shop‑cum‑residential portion as a single indivisible unit. It was argued that there was ample discretion vested in him under the second proviso to subsection (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to transfer the same as an indivisible unit and that there was nothing impossible in the request made by the appellant. But there is no force in this contention. We find that in the context in which the order dated 28th July, 1961, reproduced above, was passed by Khan Farzand Ali Khan, Settlement Commissioner, it only meant that the claim of the appellants having been satisfied with the transfer or the shop as an independent unit, it was not possible in law also to transfer the rooms at the back which constituted a separate independent unit to him. From this it could not be argued that he was not conscious of his powers vested err him under the proviso to section 2(12) of the Act. A reading of the final order as a whole has left no doubt in our mind that the Chief Settlement Commissioner treated the three rooms at the back as a self‑contained and independent residential unit to which none of tire parties was entitled, their claims having teen satisfied fully by the transfers made to them. These rooms at the back of the shop were not treated as appurtenant or incidental to the main shop itself and were held to constitute an independent unit to which the appellant was not entitled. This appeal has, therefore, no force and is liable to be dismissed. Before us the learned counsel next contended that even otherwise the appellant No. 1 was entitled to the transfer of the premises in dispute as an independent residential unit and that the learned Chief Settlement Commissioner acted illegally in rejecting his claim is this behalf 'With the observation that no residential portion of this property could be transferred to him on his NCS form. In this connection the learned counsel relied on the pronouncement of this Court in 1968 S C M R 591 to contend that his N C S form for the purpose could have teen considered as an N C H form and his eligibility could have been decided on that basis It does not appear from the record that this plea was at all raised by the appellants in the writ peti tion or in the Letters Patent Appeal from the order of the learned Single Judge dismissing his writ petition. .fin objection to that effect has, however, been raised in grounds Nos. 6 and 7 of the petition for special leave to appeal. We are informed that the three rooms, which were reserved `or auction, have not yet been disposed of and that the appellant was entitled to the transfer of the premises as a house ii, his undisputed occupation. In our opinion, the claim of appellant No. 1 to the transfer of the premises as a house may still he considered by the competent authorities. But this appeal before us has no force and is dismissed. However, there is no order as to costs in the circumstances of the case. Appeal dismissed.