1972 PLP 60 (SCMR)

WAHEEDUDDIN AHMAD, J.‑This appeal by special leave is directed against the order of the former High Court of West Pakistan, Lahore, in Letters Patent Appeal No. 273 of 1963, dated the 22nd December 1964. By this order, the appeal was dismissed in limine. Briefly, the facts leading to the present appeal are that the dispute between the parties is in respect of a small house bearing No. SW‑IV‑26‑S‑9, Muslim Park, Rajgarh, Lahore. This was ‑allotted on the 19th January 1952 to Zia‑ud‑Din appellant who is a local. Later on, Ahmad Bakhsh who was claimant displaced person also came into possession of the house. He was father- in‑law of Mst. Wazir Begum respondent No.

2. Both Zia‑ud‑Din and Ahmad Bakhsh applied for the transfer of the house in dispute. Ahmad Bakhsh who was ill, was represented by his daughter‑in‑law Mst. Wazir Begum. The C. H. form of Ahmad Bakhsh was accepted by the Deputy Settlement Commissioner and the house in dispute was transferred to him on the 11th January 1960. The learned Deputy Settlement Commissioner held that the house was indivisible and as Ahmad Bakhsh was claimant, he was to be preferred on the appellant who was a local. Zia‑ud‑Din challenged this order in appeal and Malik Ghulam Jilani, Additional Settlement Commissioner, on the 24th September 1960, remanded the case to the Deputy Commis sioner for consideration of the question whether the appellant was not entitled to retain a house as a local. This order was challenged by the grandson of Ahmad Bakhsh who had died in the meanwhile by revision petition. This was accepted by Khan Farzand Ali Khan, Settlement and Rehabilitation Commissioner, Lahore Division, on the 9th January 1961. He found that the house was a very small one and as the contest was between the heirs of Ahmad Bakhsh who was also claimant and Zia‑ud- Din was a local, claimants must have preference. Zia‑ud‑Din filed a second revision petition which was dismissed by Malik Fateh Khan, Settlement and Rehabilitation Commissioner with powers of Chief Settlement Commissioner, on the 1Cth May 1961 on the ground that a local should have no preference against a claimant. The appellant challenged this order in a Writ Petition No. 521 of 1961 and a learned Single Judge of the High Court dismissed it on the 19th June 1963. The matter was taken in Letters Patent Appeal which was dismissed on the 22nd December 1964. The appellant has challenged this order in this appeal. Special leave was granted in this case to consider the question whether Ahmad Bakhsh was not in undisputed possession of the house in dispute. In support of the appeal, Mr. Gul Muhammad Khan learned counsel for the appellant, has urged two points. In the first place, the learned counsel has contended that Ahmad Bakhsh was a licensee and his possession of the property was a disputed one. Secondly, he contended that no hearing was given by the Deputy Settlement Commissioner to the appellant and, therefore, the order of the Settlement Authority is a nullity in the eye of law. After hearing the learned counsel for the parties we are satisfied that none of the points raised by the learned counsel for the appellant has any force. There is nothing to show on the record that Ahmad Bakhsh was a licensee of the appellant. It is true that the appellant is an allottee but the circumstances in which Ahmad Bakhsh was brought in the house in dispute are not clear on the record. 1t cannot, therefore, be said that the possession of Ahmad Bakhsh was disputed one or he was not in undisputed possession of the property in dispute. Admittedly Ahmad Bakhsh was a claimant and was in part possession of the property in dispute. He was, therefore, rightly preferred against the appellant who is a local. The next contention of the learned counsel that Deputy Settlement Commissioner was bound to give hearing under paras 9, 10 and 11 of the Settlement Scheme No. 1 has also no force. These are directory provisions and it was not obligatory on the Deputy Settlement Commissioner to issue notice to the appellant for the hearing of this case. In any case, this point has been taken for the first time before this Court and the appellant has not laid the foundation to raise the point whether notice of the hearing of the appeal was given by the Deputy Settlement Commissioner or not. In these circumstances, the decision of this Court in the case of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division and others (P L D 1971 S C 61), has no application to the facts of the present case. After hearing the learned counsel for the parties we are satisfied that the Settlement Authorities were perfectly justified in transferring the property in dispute to Ahmad Bakhsh. His heirs are also entitled to get benefit of the transfer. There is no force in the appeal which is dismissed with no order as; to costs. Appeal dismissed