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Letters Patent Appeal No. 162 of 1962, decided on 20th March 1968.

S. 2(4) 8c First Schedule, para. I(1)‑House, transfer of ‑ Outhouses and garages attached to residential premises are part of residential premises‑Person in occupation of servant quarters appurtenant to main bungalow‑‑Cannot compete with person in possession of main bungalow‑Person fn possession of such quarters not entitled to transfer thereof in his own right.

Saleh Muhammad v. Muhammad Roz and others P L D 1962 Lah. 68; M. A. Hafeez v. Claims Commissioner, Pakistan, Lahore P L D 1962 Lah. 433 and N. M. Khan v. Chief Settlement Commissioner, Pakistan and another P L D 1962 Lah. 468 ref.

Abdul Hamid Khan v. Settlement and Rehabilitation Commis sioner P L D 1966 S C 719 fol.

Saeed Akhtar for Appellant.

Khalid Farooq for Respondent.

Date of hearing : 20th March 1968.

This order will dispose of Letters Patent Appeal No. 162 of 1962 and Writ Petition No. 948/R of 1964 in which common questions of law are involv ed. These two matters have arisen in the following circumstances.

2. In Letters Patent Appeal No. 162 of 1962, the disput8 between the parties is in respect of House. No. SW‑III‑7.S‑6 Dev Samaj Road, Ram Nagar, Lahore. Muhammad Rafiq appellant, a claimant displaced person, is in possession of two rooms, a kitchen and a garage as an allottee under an allotment order dated the 14th of March 1952, whose possession was regu larised with effect from the 1st of December 1948. The rest of the portion of this property was allotted to Captain Muhammad Ashfaq, the son of Muhammad Mushtaq, the contesting respondent in the writ petition, who died on the 7th of December 1963, during the pendency of the appeal. At the commencement of the settlement operations, both the appellant and Muhammad Mushtaq, above mentioned, filed C. H. Forms, each soliciting transfer of the house to himself. Deceased Muhammad Mushtaq claimed both through his son as also in his own right as a claimant displaced person. It may be mentioned that the main bungalow of the property in dispute was allotted to Captain Muhammad Ashfaq on the 15th of September 1947, by a Magistrate of the First Class, and the allotment was regularised in his favour on the 21st of May 1948. On the 13th of November 1959, the Deputy Settlement Commissioner concerned transferred the entire property to respondent Muhammad Mushtaq on the ground that he was a senior allottee and in possession of major portion of the house. In appeal, the Additional Settlement Commissioner, by order, dated the 14th of January 1960, held that the appellant was in possession of servant quarters, basing his decision on a plan of the proposed building. submitted in 1936 to the Lahore Municipal Committee, as it then was. The appellant's revision before the Settlement Commissioner was dismissed on the 15th of June 1960, with the following observations :‑

"The first question to be decided in this case is whether the house is divisible or not.

I find that the main house is in possession of the respondent with the exception of a cowshed, Bhoosa shed and a garage. According to the Settlement Policy, quarters, etc. of a building axe transferred to the occupant of the main building. In this case these quarters are in occupation of the petitioner and, therefore, these should be transferred with the main building.

It is contended by counsel for the petitioner that these are not quarters, but a part of the main building. The respondent, however, has shown me a certified plan of the building issued by the Lahore Corporation in which these are shown as indicated above. This establishes the fact that the petitioner is occupying quarters of the building and not a part of the building. He has no right, therefore, to claim the division of the property. Moreover, it is conceded that the property bears one number and was owned by one evacuee owner and was not divided before Independence. It has, therefore, to be transferred as one unit, including quarters and the garage.

It is conceded that both are claimant displaced persons. The respondent has shown me House Requisition Form according to which he was put in possession of this house along with his other family members, on 15‑9‑47. A regular allotment order was, however, issued in favour of his son on 21‑5‑48. It is stated that the respondent is living in this house since 19‑5‑1947.

I have also seen the allotment order issued to the petitioner which shows that he was allotted quarters in his possession on 14‑3‑1952 with date of possession as 1‑12‑1948.

The above shows that the respondent is in prior posses sion when compared with that of the petitioner.

It is contended by counsel for the petitioner that the respon dent is an indirect claimant while the petitioner is a direct claimant. But I find that the respondent is living in this house along with other members of his family since 15‑9‑1947.

The foremost question for decision in this case is whether the house is divisible. I have already discussed above that the petitioner is in possession of only one cowshed, one Bhoosa shed and a garage. He is not in possession of any part of the main building but will have to be transferred to the person in possession of the main building, if he is eligible for its transfer. Moreover, I find that the respondent has a bigger claim when compared with the claim of the petitioner."

The second revision filed by the appellant was dismissed on the 21st of August 1960, and the review petition on the 20th of January 1962. Aggrieved by the orders of the Settlement Authorities, the appellant moved this Court by means of a Writ Petition (No. 451‑R of 1962) which' was dismissed in limine by a learned Single Judge of this Court by his order dated the 11th of April 1962. The main consideration which weighed with the learned Single Judge was that the allottee of the servant quarters has no independent right to claim transfer of the main building. The contention of the appellant that he was not in possession of the servant quarters but in occupation 'Of two rooms in the main .building was not accepted, by the learned Single Judge on the ground that there being a finding of fact on this point adverse to the appellant, it was not possible for him to embark upon a regular inquiry to determine the prevalent state of affairs as to the actual occupation of the property by the parties. The learned Single Judge, therefore, non‑suited the appellant, holding him to be in possession of servant quarters only, and thereby having no independent right to claim the transfer of the portion of the property in his possession. It is this order of the learned Single Judge which is being impugned before us in the present Letters Patent Appeal.

3. In support of the appeal, Mr. Saeed Akhtar, learned counsel for the appellant, has raised as many as five contentions, as follows :‑--

(1) That the character and status of the portion of the property in appellant's possession is to be determined according to its use and status as on the 14th of August 1947 or on the 20th of December 1958.

(2) That the Settlement Authorities have decided the case of the appellant without taking into consideration relevant evidence before them about the use of the property in dispute on the two significant elates mentioned in (1) above.

(3) That the Settlement Commissioner had decided the revision by misreading the allotment order in favour of the appellant.

(4) That the property in appellant's possession was wrongly held to be servant quarters and, being a prior allottee, the appellant ought to have been preferred,

(5) That even if it be held that the appellant was in possession of the servant quarters, he was entitled to compete with the person in possession of the main building.

4. In support of the first ground that the character and status of the portion of the property in appellant's possession ought to have been determined after taking into consideration its use as on the 14th of August 1947 and 20th of December 1958, the learned counsel for the appellant has taken us through the entire record. It was, however, not disputed on behalf of the appellant that the building plan, submitted by the original evacuee owner in 1936 doss show the portion in possession of the appellant as servant quarters. The learned counsel, however, referred us to P. A. List (Annexure J '), a document showing preliminary assessment in the records of the Corporation of the City of Lahore, relating to the year 1946, to show that the bungalow in question consisted of eleven rooms, which also included the rooms in possession of the appellant. He further referred us to the allotment order in favour of the appellant in which the portion allotted to him was mentioned as two rooms, a kitchen, a bath and a garage. We were further referred to Annexures K', K/1' and K/2', copies of P. A. List of the Corporation of the City of Lahore, relating to the property in dispute and pertaining to the year 1941, to show that no portion of the property in dispute was represented a servant quarters. According to the copy of the survey register (Annexure B') also, the portion in possession of the appellant was shown as two rooms, a kitchen and a garage. Rent receipts (Annexures L', L/1' and L/2') were also produced to show that the appellant paid rent of the portion in his possession which consisted of two rooms. In the year 1955 the appellant got water supply connection installed in his portion of the property and showed it as two rooms in his possession. It was urged by the learned counsel for the appellant that even the deceased respondent did not expressly assert that the portion in possession of the appellant consisted of servant quarters. On the basis of the documents, reference to which has been made in this paragraph, it was strenuously urged by Mr. Saeed Akhtar that this Court is entitled Logo into the question of the status of the property and the use to which it was put to in the years 1947 and 1958, as, according to the learned counsel, the finding of the Settlement authorities on the question whether the disputed portion in possession of the appellant consisted of servant quarters or not was based on misreading of evidence and, in any case, the Settlement authorities failed to consider the evidence which they were bound to consider in order to reach a correct con clusion in a judicial or a quasi‑judicial proceedings. In support of this contention, the learned counsel relied on three decisions of this Court reported as Saleh Muhammad v. Muhammad Roz and others (P L D 1962 Lah. 68), M. A. Hafeez v. Claims Com missioner, Pakistan, Lahore (P L D 1962 Lah. 433) and N. M. Khan v. Chief Settlement Commissioner, Pakistan and another (P L D 1962 Lah. 468). In these cases it has been held that "ordinarily a Court, called upon to issue a writ, has to accept as correct the findings of fact given by a Tribunal of exclusive jurisdiction. This however, does not mean that the findings of fact given by a Tribunal of exclusive jurisdiction are sacrosanct under all circum stances. If a Tribunal of exclusive jurisdiction had, when arriving at a finding of a fact misread the evidence, or had considered evidence which could not have been considered at all, or had failed to consider evidence which it was bound to consider or should have considered, the finding of the Tribunal of exclusive jurisdiction cannot claim immunity from exami nation by the Court which possesses power to issue a writ against orders of a Tribunal of exclusive jurisdiction. " There is no quarrel with these observations as a proposition of law. In fact, it is from this angle that we have examined the case of the appellant.

5. The finding of the Settlement Commissioner is that the main bungalow is in possession of the respondent with the exception of a cowshed, bhoosa shed and a garage. He has further observed that according to the Settlement Policy, servant quarters of a building are transferred to the occupant of the main building. In this case, the servant quarters are in possession of the appellant and, therefore, should go along with the: main building. The contention of the appellant that the portion in his possession was not servant quarters but a part of the main building was repelled by the Settlement Commissioner on the ground that a certified copy of the plan issued by the Corporation of City of Lahore relating to the property in dispute showed it as nothing but servant quarters. The correctness and authenticity of this plan has not been disputed and it was on this basis that the Settlement Commissioner came to the conclusion that the appellant was occupying the servant quarters and not any part of the main building. The certified copy of the plan, referred to by the Settlement Com missioner, was also shown to us and the finding of the learned Settlement Commissioner that the appellant is in possession of a cowshed, a bhoosa shed and a garage is fully borne out by it. There is, therefore, not the slightest doubt that the evacuee owner treated this part of the property as servant quarters, and it cannot, by any stretch of imagi nation, be said that this finding of the learned Settlement Commissioner is based on no evidence at all. Servant quarters literally, are put to residential use and their description in P. A. Lists and other documents as "two rooms" cannot change their status as servant quarters, although one may change their nomenclature according as it suits him. In these circumstances, it is not possible for us to hold that the Settlement Authorities have based their decisions on mis reading of evidence or failed to consider evidence while coming to the conclusion that the portion in possession of the appellant consisted of servant quarters. The mere fact that in the allotment order the portion in possession of the appellant came to be described as "two rooms" cannot change their original status and still remain as servant quarters. We can also take judicial notice of the fact that after Partition, on the exodus of the refugees from other parts of the sub‑continent, in quest of shelter, people got themselves accommodated even in servant quarters, and the appellant's case seems to be similar to one of those cases.

6. The learned counsel for the appellant referred us to the departmental instructions at page 492 of the new Settlement Manual. In paragraph 3 of the Press Note dated the 3rd of May 1960, entitled as "Disposal of properties converted into some other use after 14th August 1947", it is stated that as a general principle, the property will be disposed of according to the use to which it was being put on 20th December 1958, unless the Additional Settlement Commissioner is satisfied that the property should be disposed of in public interest according to its status at the time it became evacuee property. But when we referred to the broad principles listed by the Chief Settlement Commissioner in the same paragraph, it transpired that this instruction was meant entirely for a different purpose. It was applicable only to those cases where a house, a shop or a small industrial concern was converted into as chool, college or a hostel, or a house, shop or small industrial concern was converted into a hospital, so on and so forth. The instruction does not apply to cases where a property is used for residential purposes or has continued to be so used. It, further, does not lay down that if some portion of a property was used as a servant quarter for residential purposes, it would be treated as a house in case it was separately occupied by a person. The instruction relied upon by the learned counsel for the appellant is, therefore, of no help to the appellant.

7. After hearing the learned counsel for the parties, we are satisfied that the portion in possession of the appellant is one consisting of servant quarters, composed of a cowshed, bhoosa shed, And a garage and, therefore, they were appurtenant to the main house and could not be treated as a separate unit. It is on these premises that we shall consider the claim of the appellant with respect to the property in dispute.

8. This brings us to the question whether the appellant being in possession of the servant quarters, is entitled to compete with the occupant of the main building. The question is easy to resolve if we examine the definition of "house" as given in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which is as follows :‑

" house' means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and outhouses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage, or outhouse is in the possession of a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises of an industrial concern, or a building or premises, declared under paragraph 15 of the Schedule to be a big mansion or hotel, or such class of buildings or premises in a rural area as may be declared by the Central Government, by notification in the official Gazette, not to be houses within the meaning of this clause."

It will be noticed that under this definition the outhouses attached to the residential premises are part of the residential premises to which they are attached, and the converse is not true. Having regard to the beneficial nature of the legislation, left to ourselves, we were inclined to hold that a person in possession of the outhouses, in spite of the fact that they are appurtenant to the residential premises, should, in all fairness, be treated to be in possession of the house. His claim cannot be rejected on the mere ground that the residential premises are not appurtenant to the outhouses. The definition of the house clearly lays down that it includes outhouses, gardens, garages, etc., etc. But our hands are tied down by a decision of the Supreme Court in Abdul Haudd Khan v. Settlement and Rehabilitation Commissioner (P L D 1966 S C 719) wherein their Lord ships, at page 723, observed as under :‑

"In construing the definition of a "house" in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, this Court has held that a person in possession of an outhouse or a garage cannot for the purpose of the transfer of the house or a portion thereof be considered to be in its occupation for the reason that‑ the outhouses and garages are appurtenances to a house, but a house cannot be an appurtenance to an outhouse or a garage. Mst. Fazalunnisa Begum v. The Chief Settlement Commissioner, Civil Petition for Special Leave to Appeal No. K‑34 of 1966, decided on the 24th March 1966. In this view, the Settlement Authorities and the High Court had rightly rejected the appellant's claim for transfer of the outhouses and a portion of the compound of the bungalow on the ground that he was not in occupation of the bungalow."

We are, with all respect, bound by this decision of their Lordships of the Supreme Court. In the face of this decision, it is quite clear that the appellant being in occupation of servant quarters cannot be treated to be in occupation of the house in dispute and, therefore, cannot compete with the person in possession of the main building. We would, therefore, repel the contention of the learned counsel for the appellant that as an occupant of a servant quarter he is entitled to the transfer of the portion in his possession in his own right.

9. In passing, we may also mention that even if the appellant's contention that he was in occupation of the main bungalow is accepted, he is not entitled to any preferential treatment in the matter of transfer of the property in dispute. Admittedly, the main bungalow of the property in dispute was allotted to Captain Muhammad Ashfaq on 15th September 1947, while the appellant is in possession of the portion in his occupation from 1^st of December 1948. Deceased Muhammad Mushtaq not only claimed the property in dispute through his son, Captain Muhammad Ashfaq, but also in his own right. There is ample evidence on the record to show that he was residing in the property in dispute since September 1947. This fact is sufficiently established by the allotment order issued in favour of Captain Muhammad Ashfaq in 1947. Deceased Muhammad Mushtaq is also mentioned as one of the members of the family who had occupied the main bungalow of the property in dispute. Muhammad Mushtaq deceased, therefore, being in prior pos session of the property in dispute was entitled to have preference over the appellant and was rightly transferred the property in dispute, since it was not found to be divisible by the Settlement authorities.

10. Coming now to Writ Petition No. 948/R of 1964, it will be noticed that the dispute between the parties relates to Property bearing No. S‑86‑R‑132, Ferozepur Road, Lahore, consisting of, among other accommodation, three shops and a residential unit on its back. The petitioner was in possession of one shop and the residential portion on its back. There is no dispute between the parties in respect of the shop, the dispute being confined only to the residential portions in occupation of the petitioner, Mushtaq Ahmad Khan respondent and one Muhammad Ahsan. All the three persons submitted C. H. Forms for the transfer of the portions in their respective possession. On the 17th of December 1959, the Deputy Settle ment Commissioner declined to consider the petitioner's case on the ground that he had not submitted any valid form and that he is in possession of the servant quarters and, therefore, not entitled to its transfer. In his consequence, petitioner's portion of the house was also transferred to respondent Mushtaq Ahmad Khan. It was stated before us that the petitioner learnt about this order in May 1960. He, therefore, filed an appeal before the Additional Settlement Commissioner on the 9th of May 1960 which was dismissed on the 15th of July 1960, being barred by time. A revision taken to the Settlement Commis sioner was also dismissed on the 19th of February 1964, mainly on the ground that he being in possession of the servant quarters was not entitled to‑ the transfer of the portion in his possession.

11. It is not disputed by Mr. Saeed Akhtar, learned counsel for the petitioner, that in this case the petitioner is in occupation of the servant quarters. He has, however, urged that the person in possession of the servant quarters is also deemed to be in possession of the house and his claim should also be considered for the transfer of the property in dispute. We have already dealt with this question in the earlier part of this judgment and we need not repeat the discussion for the sake of brevity. Suffice it to say that we are bound by the view of the Supreme Court quoted in paragraph 8 above on the question involved in this petition. We would, therefore, hold that the Settlement authorities were fully justified in not accepting the claim of the petitioner.

12. In the result, both the appeal and the writ petition are dismissed, with no order as to costs.

A.E. Appeal dismissed.

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