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Civil Petition for Special Leave to Appeal No. K‑94 of 1973, decided on 8th September 1973.

(On appeal from the judgment and order of the High Court of Sind & Baluchistan made on 7‑5‑73 in Petition No. 139 of 1969).

---Sched., para. 1‑Third floor of building transferred to A but B putting up structure on roof of third floor unauthorisedly‑Mere non‑mention of roof in P. T. D. specifically no ground for holding that roof did not go with main building‑Staircase leading to roof forming part of premises transferred to A ; B having no right to use staircase‑Transfer of portion of premises occupied by B in his favour by settlement authority, held, based on complete misconception of case, hence set aside.

Ahmedullah Faroogi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 8th September 1973.

The dispute in this case relates to a con struction on the roof of an evacuee house bearing Custodian No. LLL‑B‑73 A, known as Hotumull Dwarkadas building, situated at Teerathdas Street, Karachi. This building, which is a four‑storey building, was transferred to the first three respondents herein and the permanent transfer deeds were issued in their favour on the 26th of March 1962.

According to the Custodian's record, there was no construction on the roof of the third floor, but the petitioner, it appears, had unauthorisedly put up a temporary structure thereon and was occupying the same. The respondent No. 3, who had been transferred the third floor of the building, served a notice upon the petitioner on the 20th of January 1952 for vacating the roof on the ground that he was an unauthorised occupant. The petitioner replied to the said notice and maintained that he had become a tenant of all the joint owners (transferees) and that he was prepared to pay rent to all of them.

Thereafter, on the 24th of March 1962, the petitioner entered into a rent agreement with respondent No. 3 and two days later, on the 27th of Mach 1962, he sold the unauthorised temporary structure on the roof to the respondent No. 3. Then after receiving full consideration he executed a receipt in her favour and again agreed to pay rent to her.

In May 1962, the respondent No. 2 started distress warrant proceedings against the petitioner f )r recovery of arrears of rent. In these proceedings, the petitioner took up the plea that the respondent No. 2 was not entitled to claim any rent from him as he had never attorned to her. He further admitted that the construction put up by him was unauthorised but it was located on the roof of Flat No. 7 which formed part of the premises transferred to respondent No. 3.

Notwithstanding these admissions, the petitioner managed to obtain an order from the Deputy Settlement Commissioner for tile auction of the structures in his possession and purchased these structures in the auction held in pursuance to the above order, but when the true facts were brought to the notice of the Officer concerned, who had since been promoted as an Additional Settlement Commissioner, he, on the 14th of February 1963, cancelled his previous order of auction.

The petitioner went up in revision against this order before the Settlement Commissioner. In these proceedings he only cited respondent No. 2 as a party. However, respondent No. 3 on coming to know of this revision became a party at her own request. The Settlement Commis sioner, on the 16th of March 1967 allowed the revision, set aside the order of the Additional Settlement Commissioner and directed that the portion of the premises in occupation of the petitioner should be transferred to him as a separate house.

The respondent‑transferees then challenged this order by a constitutional petition in the High Court of Sind & Baluchistan, and a learned Single Judge set aside the order of the Settlement Commissioner on the ground that the order had been made without application of mind of the officer concerned and was clearly based on a disregard of the material evidence on the record.

The petitioner now seeks special leave to appeal. The learned counsel appearing in support of this petition admits that the construction put up on the roof of the third floor by the petitioner was an unauthorised construction and that he had also entered into an agreement with the respondent No. 3 to pay rent to her for his occupation of the said structures. Subsequently, he had also sold the structures to the respondent No. 3. By these acts he [clad clearly admitted that lie had no right constructions set up by him on the roof of the premises which had already been transferred to somebody else for, the mere fact that the roof was not specifically mentioned in the P. T. D. is not a sufficient ground for holding that the roof did not go with the main premises.

The absurdity of the situation would be manifest if the transferees were now to refuse access to the petitioner through the staircase which is in their) possession and forms part of the premises transferred to them. The petitioner would have no means of access to the roof at all and he would also not be able to claim that he had any right to use the staircase because the staircase has not been kept common or specifically transferred to the petitioner along with the structures on the roof.

We have heard the learned counsel and are fully satisfied that the Settle ment Commissioner's order was rightly set aside by the High Court. It was clearly based upon a complete misconception of the whole case, This petition is without any substance and is accordingly dismissed.

Petition dismissed.

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