P L D 1967 Lahore 354 (PLP)

INAMULLAH KHAN, C. J.‑This is a Letters Patent Appeal against the order of a learned .Single Judge, dated 18‑fi‑1963. The facts giving rise to the present appeal briefly put are these: Mst. Maryam Bibi (hereinafter called the appellant) is a Displaced Person from Ludhiana. She filed a CH form for the transfer of House No. S. W. III‑88‑S‑6, Krishan Nagar, Lahore, on the basis of the possession of her daughter. The entire ground‑floor and the northern top roof are in occupation of the‑appellant's daughter and her son‑in‑law Abdul Qaddus. Abdul Qaddus was an allottee. Other person who applied for the transfer of the house is Abul Hassan (hereinafter called the respondent), a non‑claimant, `who was an allottee of the two rooms in the first‑floor.

2. The Assistant Settlement Commissioner with powers of the Deputy Settlement Commissioner divided the house into two portions. He transferred one portion to the appellant and the other to the respondent. Both the parties filed appeals. On appeal, the learned Additional S. C., by his order, dated 31‑5‑1961, accepted the appeal of the respondent and transferred the whole of the house to him. The appellant filed a revision before the S. C., and then a second revision before the C. S. C. Both the revisions were dismissed and the C. S. C. held the house to be indivisible. The appellant filed a petition before this Court under clause II (4) of the Laws (Continuance in Force) Order of 1958, for quashing the order of the C. S. C. The learned Single Judge relying on The Chief Settlement Commis sioner, Pakistan, Lahore v. Ch. Altaf Hussain and others (P L D 1962 ‑Lah, 189) held that the language employed in the opening part of Paragraph 1 of the Schedule to the Displaced Persons (Com pensation and Rehabilitation) Act (XXVIII of 1958), makes it clear that an applicant for transfer of a house can take advantage of the possession of a parent, spouse, daughter or son provided the applicant is a claimant and there is no one else to compete with the applicant. In other words, the learned Single Judge came to the conclusion that the appellant, though a claimant, being an indirect one, was' not entitled to the transfer of the house as against the respondent; who though a non- claimant, but was a direct one. He, therefore, dismissed the writ petition.

3. Doctor Nasim Hassan Shah, learned Advocate for the appellant relying on Ilam‑ud‑Din v. The Chief Settlement and Rehabilitation Commissioner and four others (P L D 1965 S C 615), submitted that a claimant through one of the relations mentioned in paragraph 1 of the Schedule to the Act, has preferential right of transfer of the house as against a non‑claimant Displaced Person, and a local cannot compete with a claimant whether he himself is in possession of the house or his parent, son, daughter or spouse is in possession. The point raised by the learned Advocate seems to be correct and is supported by an authority of the Supreme Court.

4. Mr. Naqvi, learned Advocate for the respondent sub mitted in the first place that the daughter in this case was not in possessions and, therefore, the appellant could not take benefit of her (daughter's) possession. He pointed out that the possession and allotment in this case was not of the daughter but was of Abdul Qaddus, the husband of the daughter. On the other hand, Dr. Nasim Hassan Shah, learned counsel for the appellant pointed out that at page 123 of the Settlement Manual (Old Edition) there is a memorandum dated the 7th of March 1960, which reads as under:‑ "The Central Government has decided that where a house is in possession of the husband in pursuance of the order passed 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." Relying on the Memorandum, the learned counsel for the appellant submits that as the daughter was living with her husband she would also be deemed to be in possession. He submitted that her this (deeming) possession was possession for all purposes of the Act and her mother could rely on her such possession under Para. 1 of the Schedule. For this purpose, he relies upon Agha Shaukat Ali v. S. & R. C. and another (P L D 1965 Lab.,445). The point seems to be correct and in our opinion the mother in the instant case could rely upon the possession of her married daughter where husband was the allottee.

5. Mr. Naqvi further contended that the Memo referred to cannot be relied upon as it is not in conformity with the power given to the Central Government under second proviso to section 2 (6) of the Act which runs as under:‑ "Provided further that the Central Government may, by order in writing direct that a class or classes of, such persons as have not obtained possession as aforesaid shall, subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act." The submission of the learned Advocate is that the Memo. reproduced above does not show that there was any order of the Central Government in writing. This point has been taken for the first time before us. In the second place, the presumption under section 114 of the Evidence Act is that official acts have been regularly performed. In the third place, their Lordships of the Supreme Court in Civil Petition for Special Leave to Appeal No. 147 of 1965 Agh a Shaukat Ali v. The Settlement and Rehabilitation Commissioner, Lahore and another had occasion to examine the Memo. which we have reproduced above. Their Lordships observed as under "The wife of Mr. S. Z. Ahmad must be deemed to be in possession of the premises in question by virtue of an order of the Central Government, dated 7‑3‑1960, appearing at page 123 of the. Old Manual of Settlement. Mr. Minto attempted to attack the vires of this order. The point was not taken in the High Court, but being a pure question of law, counsel submitted that it could be raised in this Court for the first time. There is however, no substance in this point. The Government had the power under the proviso to the definition of 'house'. given in the Act itself, to extend the benefit of `possession' to other occupants of premises, who had no allotment order or order passed by a competent authority, in their favour. This is exactly what the Government did in the present case and, therefore, the wife of Mr. S. Z. Ahmad must be deemed to be in `possession', within the meaning of the Act."

6. The third objection raised by the learned counsel for the respondent was that the Memo. dated the 7th of March 1960, cannot be given a retrospective effect so as to apply to such applications for transfer which had been filed prior to the 7th of March 1960, on the basis of possession of wife of an allottee. There is not much substance in this submission. A similar point arose before a Division Bench of this Court in M. R. Rafi‑ud Din and others v. C. S. & R. C. and others (P L D 1964 Lah. 539). Their Lordships repelled the contention and held that application form can be filed and disposed of in accordance with the Notification which might have been subsequently issued. Moreover, we are of the view that appeal is a continuation of the proceedings and by the time when the Addl. S. C. passed his order on 31‑5‑1961, the Memo. dated the 7th of March 1960, had already come) into existence. In this connexion, we would make reference to Lachmeshwar Prasad Shukul and others v. Keshwar Lal Chaudhuri and others (AIR1941 FC5). It was held in that case, that the hearing of an appeal being in continuation of the original proceedings, the Appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. It was further held that the Appellate Court was competent to take into account legislative changes since the decision under appeal was given and its powers were not confined only to see whether the lower Court's decision was correct according to the law as it stood at the time when its decision was given.

6. Lastly, it was submitted by the learned counsel for the respondent that Abdul Qaddus, the son‑in‑law of the appellant had himself claimed this house and had not withdrawn his NCH Form and, therefore, the wife of Abdul Qaddus could not be deemed to be in possession so to entitle her mother to claim the property on the basis of the possession ‑of the daughter. There is no substance in this submission. It would appear from Annexures B and C to the petition, the orders passed by the Addl. S. C., and the S. C., that Abdul Qaddus had withdrawn his NCH Form.

7. No other point was urged before us and particularly none of the parties challenged the finding regarding the divisibility of the house before us.

8. For the reasons given above, we would hold that the appellant being a claimant though claiming through one of the relations mentioned in Para. I of the Schedule to the Act, she has a preferential claim for the transfer of the property in question as against the respondent who is a non‑claimant. We would, therefore, set aside the orders of the learned Single Judge and also of the Settlement Authorities and would direct that the property in question may be transferred to the appellant. There will be no order as to costs. K. M. A. Appeal accepted.