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Writ Petition No. 2793/R of 1963, decided on 20th April 1965.

S. 2(4) & Sched, para. I‑House‑Garden and open ground attached and appurtenant to bungalow‑Part of bungalow for purposes of Act‑Application for transfer of bungalow‑An application for transfer of every thing attached or appurtenant to it.

Dr. Nasim Hassan Shah for Petitioners.

Fazal‑i‑Azim Hamdani for Respondent No. 1,

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 20th April 1965,

The petitioner, who is since dead and is represented by Muhammad Farooq and others, his legal representatives was in possession of a house built upon plots Nos. 83 and 84/13 Block, Model Town, Lahore. The house was commonly known as No. 83/13. The property was transferred to him by order of the Deputy Settlement Commissioner, dated the 19th of November 1959, a copy of which is Annexure A' to the writ petition. It may be mentioned that this order concerned itself with property No. 83/13 and gave its area as 12 Kanals. This order became final since no appeal or revision was preferred against it.

2. A list of plots to be auctioned on the 13th of March 1963 was published in the beginning of that year and on its perusal the petitioner found that plot No. 84/13 was included in it on the 14th of March 1963, the petitioner applied to the Settlement authorities for deletion of the plot from the list on the ground that the same stood transferred to him by the order referred to above as although it mentioned only plot No. 83/13, the area of the property transferred was given as 12 Kanals and this was the area of both 83 and 84/13 put together. The Settlement Inspector, Centre V, inspected the spot in the company of another Settlement Inspector and reported, inter alia, that:‑--

"only one door of the servant quarter opens in plot No. 84/13 and Water Supply connection has also been installed in the plot No. 84/13. The plot is under use of the applicant. There are also some fruit trees planted there. It is also true that the ownership of both the plots is the same. May be deleted for the time being.

Submitted for orders please."

3. Mr. M. A. A. Wasti ordered on the 12th of March 1963 that‑

"Since only 83/13 stands transferred to the appellant, D/84 cannot be considered its part unless it were specifically mentioned being its part. Auction is therefore justifiable and may proceed. He may be informed."

4. The petitioner filed a revision petition against this order. It was dismissed by Syed Muhammad Azhar, Settlement and Rehabilitation Commissioner, by his order dated the 9th of November 1963. He came to the conclusion that‑

"both the plots adjoining each other, originally belonged to one evacuee, that there is no construction, on the plot in suit No. 84‑D, that it is not included in the main bungalow by any boundary wall. It has green hedges on its two sides. The evacuee owner could use this plot in any way he liked as his ownership was not limited by any conditions. But the same privilege cannot be extended to the petitioner, who has only applied for the bungalow on plot No. 83‑D, that the plot in suit has no construction appurtenant to the bungalow and is quite independent."

5. Meanwhile the plot had been auctioned and was purchased for a sum of Rs. 78,000 by Syed Hasan Imam Kazmi, respondent No. 1. Hence this petition.

6. The learned counsel appearing for the auction‑purchaser does not oppose this petition and urges that the price paid by him to the Settlement Department should be refunded to him.

7. The learned counsel for the petitioner has also produced in Court copies of certain documents from the records of the Co‑operative Model Town Society Limited, a Society formed for the purpose of planning a town on the site where Model Town now exists. It purchased the land from the Government and subsequently allotted it to various applicants who became its members. These documents have been marked by us as Annexures I, J, K and L. Annexure 'I' is a copy of the covering letter addressed by Mr. D. R. Sawheney, owner plots Nos. 83 and 84/1), to Model Town, to the Secretary, Model Town Society with the plans for the construction of a Barsati on the property in dispute and runs as follows:‑-

"I enclose plans for a Barsati to be built on my house in 83 and 84‑D, Model Town and shall be grateful if you will kindly sanction the plan."

There is another letters Annexures 'J' from the Secretary of the Society to Mr. D. R. Sawheney which reads as follows :‑--

"Enclosed please find the plans of quarters of your house on plot No. 83‑84‑D duly approved by the Society."

Another letter from the Society to Mr. D. R. Sawheney contained the following:‑--

"Enclosed please find the plans of your house on plots Nos. 83 and 84, Block D duly approved by the Society . . . . "

Annexure 'L' is a copy of a letter sent by Mr. D. R. Sawheney to the Secretary of the Society on the 16th of March 1924, a part of which runs as follows :‑--

"Kindly send me a formal receipt duly stamped for the Rs. 1,600 which I sent you by a cheque, when I was at Lahore last, as I wish to complete my record. As I told you at Lahore in the last month, I wish to get a plot of 12 Kanals .

All these letters show that plots Nos. 83 and 84/13 have always been treated by the owner, as well as by the Society as one premises. The property transferred to the petitioner has been described in the "Schedule of property" in the Provisional Transfer Order (Annexure 'N') as‑--

"Bungalow No. 83‑D, Model Town, Lahore (12 Kanals)."

8. It has already been stated above that Model Town was planned and has ever since been run by a Co‑operative Society which has its own bye‑laws registered with the Registrar of Co‑operative Societies. These bye‑laws provide that no member shall own more than one plot in his name but since the locality is being planned as a Garden Town it will be open to a member applying for the allotment of a plot of land for construction purposes to ask for an adjoining plot to be used as a garden for the bungalow. Since both these plots are owned by the same evacuee one of them was for constructing a building while the other was for planting a garden for it. This plot No. 84/13 was not and could not be treated as some thing not forming part of the bungalow constructed on plot No. 83/13, Model Town. The observation of the Settlement Commissioner that the evacuee owner could use this plot in any way he liked as his ownership was not limited by any conditions is at variance with the Society's rules. A plot transferred as a garden plot cannot be built upon and can toe used only as a garden for the adjoining plot.

9. "House" has been defined in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as‑--

"house" means evacuee residential premises of any value in an urban area, or of the value of ton 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 . . . . .

and plot No. 84/13 being a garden and the ground attached and( appurtenant to bungalow No. 83/1) would be deemed to be a part of it for the purposes of the Act. According to the law even if this plot had been in the possession of any body else the petitioner would have been entitled to have it transferred in his own name.

10. Since the bungalow is situated on plot No. 83/13 an application for its transfer would be presumed to be an application for the transfer of every thing attached or .appurtenant to it under the law, and the objection that since the application was only for 83‑D and plot 84/1) was not mentioned in it is not sustainable.

11. The learned Settlement Commissioner seems also to have been swayed by the fact that there was no boundary wall enclosing plots Nos. 83 and 84/D and there was only a hedge. Had he gone through the bye‑laws of the Society he would have found that it permits only the growing of hedges and not the building of boundary walls.

12. There is another factor which lends support to the conclusions that we have reached, that is the mention of 12 Kanals as the area of the property transferred to the petitioner by the Settlement authorities.

13. In these circumstances we accept the petition and declare that plot No. 83/13, forms part of and stood transferred with the bungalow constructed on plot No. 83‑D, Model Town, and that its auction was without lawful authority. As we have held that plot No. 84/D also stands transferred to the petitioner, he is entitled to a permanent transfer‑deed in respect of it on payment of the price assessed according to the Scheme and respondent No. 1 is entitled to a refund of the sale consideration, if any has been paid by him to the Settlement Department. In the circumstances of the case we leave the parties to bear their own costs.

Petition accepted.

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