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Writ Petition No. 34 of 1963, decided on 8th November 1965.

Sch. Part I‑Person applying for transfer of only one portion of property‑Cannot lay claim for other part of property as well.

S. 2 (4) and Sch. Part I‑Servant quarter‑Part of house‑Person in occupation of main building can claim transfer of building along with servant quarter but vice versa person in occupation of servant quarter only, not entitled to transfer of main building (obiter).

According to the provisions contained in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 whereas the occupant of a house can claim its transfer along with the outhouses which are appurtenant to it, even though the out houses are in possession of somebody else, the reverse position is not envisaged by the provision of section 2 (4) of the Act and the occupation of a servant quarter would not be deemed to be occupation of a part of the main house for purposes of the transfer of the main house under the Act.

Akhtar Mahmood for Appellant.

Naimuddin, Ismail Munshi and S. M. Raza for Respondents.

Dates of hearing : 27th October and 8th November 1965.

Property bearing plot No. 2/3, Custodian No. V‑B‑62/KAA, which is the subject‑matter of dispute in the present writ petition consists of four tenements, two on the ground floor and two on the upper floor marked as G/l, 1/1 (Ground floor) and G/2 and 1/2 (Upper floor). There are 12 servant quarters attached to this building. The admitted facts are that the property was leased out to one Dr. Kanga in the year 1940 by its evacuee owner. Dr. Kanga continued to occupy portions G/1 and 1/1 himself and leased out G/2 and 1/2 to respondents 5 and 6 namely D. H. Sachinwala and P. A. Karani, respectively, who are locals belong ing to the Parsi Community. It may be stated here that in the Settlement operations, in the final result, the portions of this building G/1 and 1/1 with eleven servant quarters were disposed of by earmarking and transferred to the predecessors‑in‑interest of respondents Nos. 7 and 8. The respondents Nos. 7 and 8 aforesaid are Haji Salahuddin and Mst. Noor Begum, who are now holding these properties by a valid purchase, from their predecessors‑in‑title. The portions G/2 and 1/2 were transferred respectively to respondents Nos 5 and 6 on the submission of their claim forms as locals, because it was found that the price on evaluation basis of each of these portions did not exceed Rs. 10,000. One servant quarter has also been transferred to respondent No. 6. This is described by the petitioner in her writ petition as servant quarter No. 1.

2. It appears that the petitioner, who is a claimant displaced persons filed her C. H. Form on the 16th of November 1959. In her original writ petition (she has also filed an amended writ petition) she has stated (vide paras. 9 and 10) that as the building was vertically divisible, the portions G/1 and 1/1 occupied by Dr. Kanga had been disposed of by earmarking in December 1959, and, therefore, on her claim form, portions comprising G/2 and 1/2 along with the servant quarters were transferred to her under Appendix 'X', dated the 19th of January 1960, for an amount of Rs.28,560 followed by a Provisional Transfer Order No. 00736, dated 23rd February 1960. It is further alleged in the petition vide para. 11 that the portions comprising G/2 and 1/2 and all the servant quarters fall on the same side of the building. She had claimed transfer of the property as a claimant displaced person on the basis of her possession of a servant quarter of the same building. As the portion of the property transferred to her on her claim form had been also transferred earlier to the respondents Nos. 5 and 6, this enamolous duplica tion was brought to the notice of the Settlement Authorities, resulting in the cancellation of the transfer in favour of respon dents Nos. 5 and 6 by the Additional Settlement Commissioner on the 11th of January 1960 principally on the note submitted to the Additional Settlement Commissioner (copy Annexure 'O' on the file) by the Deputy Settlement Commissioner, Mr. S. A. Imtiaz quoting the price of each of the portions transferred to respondents Nos. 5 and 6 at Rs. 12,168. The Additional Settle ment Commissioner Mr. A. R. Chaudhri on this note made the following remarks :‑

"Have these transfers been since cancelled please They should be."

Mr. S. A. Niazi, the Deputy Settlement Commissioner then took up the enquiry and submitted a detailed report stating in the end that "taking all things into consideration there is no doubt that the houses in question are within the value of Rs. 10,000 and I, therefore, see no reason to either modify or reverse the order of my predecessor. The case Tray, therefore, be filed". Mr. A. R. Chaudhri, thereupon, withdrew his order dated 11th January 1960, for cancellation of the transfer in favour of respondents Nos. 5 and 6, and his order refers to the fact that he had seen the flats, presumably for the purpose of determining their valuation. This order is dated 4th of June 1960. Thereafter the Deputy Settlement Commissioner, informed the petitioner by his order dated 26th July 1960 (copy Anrexure R) that he had reviewed his previous order of transfer of the property in her favour as she was not in physical occupation of it. The P. T. O. issued to the petitioner was thereby cancelled. It appears from the file that one Syed Ibrahim had also applied to the Settlement Commissioner, Karachi for the cancellation of the transfer of the property in question in favour of respondents 5 and 6 on the ground that they had secured it at a very low price. His application was dismissed on the 20th of June 1960, by the Additional Settlement Commissioner (copy Annexure 'D').

3. Against the cancellation of her P. T. O. and transfer of the properties G/2 and 1/2 the respondents Nos. 1 and 6, the petitioner lodged an appeal to the Additional Settlement Commis sioner, which vas disposed of by Mr. I. H. Zuberi on 11th January 1961. The order recalls that the learned Advocate appearing for the appellant before him, i.e. the petitioner had admitted that the appellant was not in possession of G/2 and 1/2 of the building but was in possession of the servant quarter and, therefore, the point which arose for determination was "whether a person occupying the servant quarter is entitled for the transfer of the main building alongwith the servant quarters", Referring to the definition of 'house' in the Displaced persons (Compensation and Rehabilitation) Act, 1958 (to be referred hereinafter the Act) contained in section 2 (4) thereof he held that whereas the outhouses together with the main building for transfer to the person in possession thereof, the possession of an outhouse or a servant quarter does not create an entitlement for the transfer of the main building. The challenge to the transfer made in favour of respondents 5 and 6 was rejected on the view that it did not fall within the legal purview of the Appellate Authority as the Additional Settlement Commissioner to review the previous order of the Additional Settlement Com missioner Mr. Abdur Rauf Chaudhri, passed on the case, which in fact were passed by reviewing his previous order. The petitioner then took the matter in revision to the Settlement Commissioner, which was heard and disposed of by Mr. Abdur Rauf Chaudhri, who bad by then been appointed as the Settlement Commissioner. He declined to interfere and observed as follows :-

"I remember to have made a personal inspection of the premises in question in occupation of local Parsi families in whose favour I accorded permission for execution of registered deed of transfer. I satisfied myself that none of the flats concerned cold have an evaluation price of more than Rs. 10,000 and found the Parsees entitled to the transfer. Admittedly the applicant's counsel can refer this case of alleged irregular transfer to the Enforcement Police who will surely proceed in the matter if they find the transferees dis entitled on the ground of price."

Not satisfied with this order, the petitioner moved the Chief Settlement Commissioner in a further revision which was dismissed on the ground that the property had already been transferred to respondents 5 and 6 by a registered sale‑deed and that unless the petitioner proves that there was any fraud or misrepresentation committed by the respondents in the transaction in question the sale‑deed cannot be cancelled. It was also pointed out in the order that the petitioner's application had been forwarded to the Enforcement Staff for malting the necessary enquiry.

4. I have referred to the amended writ petition filed by the petitioner. This was made under the orders of this Court on the 24th of September 1965, after respondents Nos. 7 and 8 had intervened in the proceedings to impleaded as parties. The amended petition was filed on 4th October 1965. In para. 35 of the amended petition it is stated :‑

"That the respondents Nos. 7 and 8 and their predecessors the transferees of G/1, by means best known to him, but against the provisions of Settlement Law got added to his G/1 one Block of 5 servant quarters (including the one which is in occupation of the petitioner) and open land of 1,076 sq. yds."

It was forcibly pointed out by the learned counsel for respon dents 7 and 8 that for the first time in the amended writ petition the petitioner has sought to challenge the earmarking proceedings in respect of the portion of the building G/1 and 1/l, claiming for herself the whole of the building including the servant quarters on the basis of her own claim, which is very much late in the day and that obviously her case is hit by inexplicable laches.

5. I have not been shown the claim form submitted by the petitioner but it is clear from the proceedings before the Settle ment Authorities that the petitioner had pursued her claim only for G/2 and 1/2, and not for the other part of the building, viz., G/1 and 1/1 and that furnishes a complete basis to negative her claim in respect of G/1 and 1/1.

6. It is clear that she has claimed the transfer of G/2 and 1/2 on the basis of her possession of a servant quarter which on her own showing has been transferred to the predecessors‑in‑title of respondents 7 and 8 as appurtenant to G/1. The tenements having been decided by the Settlement Authorities to which no valid objection has been or could be made by the petitioner and when on that division by the Authorities concerned the servant quarter of which the petitioner is claiming possession has been apportioned to one particular tenement, it passes my com prehension how on the basis of that servant quarter she could lay any claim to another tenement of which the servant quarter in question does not form part, assuming that she is in such possession of it. But I find by a reference to the 'record both of the Settlement proceedings and of the writ petition that the petitioner has not teen able to prove satisfactorily that she is in possession of a servant quarter in this building. As already pointed out Above, the Deputy Settlement Commissioner in his order dated the 26th July 1960, had found that she was not in physical possession of the building. She did not specifically challenge this finding in her appeal or revision but she depended merely on the assertion in the course of the arguments before the Settlement Authorities that she was in possession of a servant quarter without definitely stating which servant quarter In her original writ petition she stated in para. 2 that :

"That the petitioner was and still is in physical possession of servant quarters which are situated on, and attached to and are part of building on plot No. P. H. 2/3, Custodian No. V. B.‑62/1‑Karachi."

In para. 5 it was further asserted:

"That all the ten servant quarters were first in possession of Dr. Kanga a local, allottee of V. B.‑62/1, but later on, the respondent No. 6 occupied quarter No. 2 and the remaining quarters Nos. 1, 3 to 10 came under the petitioner."

In para 2 of the amended petition a striking departure was made and it was said:‑

"That the petitioner was and still is in physical possession of servant quarters (but at present is in actual possession of only one corner servant quarter behind G/1 and G/2) which are situated on, and attached to and are part of building on plot No. PR‑2/3. Custodian No. VB‑62/1, Karachi."

The change in this position seems to be this outcome of the report submitted by the Commissioner Mr. A. 1. Chundrigar, dated the Ist of October 1963, who was appointed by this Court by an order dated the 24th September 1965, as Local Commissioner to inspect the site and, report within a week, about the possession of the parties in respect of the outhouses and servant quarters, particularly the one alleged to be in possession of the petitioner. The relevant part of this matter is contained in para. 11 which is to the following effect :‑‑

"The conclusion 1 draw is as follows :

There had been 12 quarters in all. Quarter 12 was intact and Mr. Lobo was occupying it alongwith his family but posses sion was with respondents 5 and 6. Quarter 11 was vacant in the sense of habitation but contained goods of intervenors and the intervenors were in undisputed possession. Quarters 3 to 10, both numbers inclusive had more or less completely been demolished by the intervenors and the intervenors were in undisputed possession. They have posted two Chowkidars there. Quarter 2 was occupied by Fernandes, cook of Dr. Kanga, along with his family and the intervenors were in undisputed possession. The intervenors had given time to Fernandes to vacate Quarter 2, Quarter I seems to have been in possession of Mr. Zai for at least two and a half to three years Mr. Zai is not the petitioner in the above‑noted case."

It is obvious from this report that the petitioner was not in possession of any servant quarter at all. Moreover, Mr. Zai, who is shown to be in possession of quarter No.1 is her son, and it may be that she is claiming possession through him. But this has never been her case at any stage of the proceedings and even Mr. Zai's possession cannot be related back to a date before the target date of the 20th of December 1953, to be of any use for purposes of transfer under the Act (see Notification No. F‑1 (27)/59‑61, dated 13th October 1959 page 361 of the old Manual). Counting the period of three years in the maximum from the date of the inspection of the spot by the Commissioner the possession of Mr. Zai can be put at the earliest 'to the first of December 1962. The learned ‑counsel referred me as to the affidavits on the record filed by Mr. Lobo and Dr. Kanga on the point of possession of the outhouses. In his affidavit Mr. Lobo (page 67) sworn that he had obtained the quarter from his Master Dr. Kanga and respondents 5 and 6 had nothing to do with it and that he had given a no‑objection certificate to Mst. Fazlun Nisa Begum on the 15th of January 1960, who occupies a part of servant quarters of the same building, to file application form for transfer of his quarter as well. This affidavit‑does not at all help the petitioner because it does not state which quarter or part of the quarter was in her occupation and since when, and again it is in conflict with the report of the Commissioner already referred to above, wherein it is stated that quarter No. 12 which was intact and which was occupied by Mr. Lobo alongwith his family was in possession of respondents Nos. 5 and 6. In his affidavit at page 263, of the file Dr. Kanga states categorically that the petitioner was never in occupation or possession of any quarter attached to the tenements and that in the year 1962, he had permitted Mr. Zai to put his household goods in servant quarter No. 1. It is significant to note here that Mr. Zai himself had filed an application before the Deputy Settlement Commissioner 'A' Zone, Karachi, on the 21st May 1960, wherein he had admitted "that all servant quarters were always in Dr. Kanga's possession‑ allottee of G/1 and G/2." The position which thus emerges is that the petitioner has not been able to prove that she was in possession of any of the servant quarters on the relevant date to furnish a basis for her entitlement to claim the main building or any part of it, assuming that she can successfully lay a claim for the transfer in her favour on that basis. For this reason it is not neces sary to decide the question canvassed at the Bar whether a servant quarter can be considered to be a part of the house within the definition of the "house" as contained in section 2(4) of Act I may, however, observe and that in my view, according to this provision whereas the occupant of a house can claim its transfer alongwith the outhouses which are appurtenent to it, even though the outhouses are in possession of somebody else, the reverse position is not envisaged by this provision and the occupation of a servant quarter would not be deemed to be occupation of a part of the main house for purposes of the transfer of the main house under the Act.

6. The learned counsel for the petitioner has contested the transfer in favour of respondents Nos. 5 and 6 on the ground that the price of each of the flats transferred to them exceeds Rs. 10,000. I find that under para. 3 of the Schedule to the Act a local is entitled to the transfer of a house which is in his possession if its price does not exceed Rs. 10,000 on evaluation basis, which is distinct from the market price, and has to be worked out on the basis of the annual rental value of the house in question. The Settlement Authorities have worked out the evaluation price of G/2 and l/2 each at Rs. 9,360 to which has been added 30 % for determination of their market value, the total thus being Rs. 12,168. The Press note of the. Chief Settlement Commissioner, dated 16th July 1959, at page 28 of the old Settlement Manual clearly draws out the distinction between the evaluation price and the market price. The price determined by the Deputy Settlement Commissioner on evaluation basis at Rs. 9,360 in the case of each of the two flats in possession of respondents Nos. 5 and 6 was confirmed by the Additional Settlement Commissioner after the 'inspection on the spot and I fail to see how I can hold that the evaluation price is higher than the figure as worked out by the relevant authorities.

7. To my mind this petition is without substance and I dismiss it with costs.

K. B. A.

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