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Civil Appeal No. 83 of 1969, decided on 24th October 1973.
(On appeal from the judgment and order of the former High Court of West Pakistan, Lahore, dated the 18th February 1965, in L. P. A. No. 421 of 1964).
‑‑Sched.‑Transfer of house‑House divisible and possessed by more than one person‑Persons holding allotment order stand on no higher footing than another a non‑allottee but otherwise in undisputed occupation of a part of property‑Both entitled to transfer of portions in their respective possession.
Barkat Ali v. Mohammad Sharif and another P L D 1966 S C 817; Abdul Majid Shaida v. Mst. Noor Jehan and another P L D 1967 S C 221 and Sh. Khursheed Mohammad v. The Settlement and Rehabilitation Commissioner and another. P L D ‑1971‑: S C 498 ref.
Tanvir Ahmad, Advocate‑on‑Record for Appellants.
M. Dilawar Mahmood, Advocate Supreme Court instructed by S. Abid Nawaz Abid, Advocate‑on‑Record for Respondents 1 to 7.
Respondents 8 and 9 : Ex parte.
Date of hearing: 24th October 1973.
This appeal by special leave is directed against the order of the former High Court of West Pakistan, Lahore, dated the 18th February, ‑1965, in Letters Patent Appeal No.'421 of 1964. By this order, the L. P. A. was dismissed in limine.
The dispute between the parties is in respect of house No. 11/432‑33, Mohallah Dharowal, Sialkot' city. This house was transferred to Allah Ditta, the predecessor‑ in‑interest of the appellants. The house was held to be divisible by order, of the Deputy Settlement Commissioner, Sialkot, dated the 26th November 1960. The predecessor‑in‑ interest of the appellants was in prior possession of the property and, therefore, the entire property was transferred to him. On appeal by Haji Feroze Din, the predecessor -in‑interest of respondents Nos. 1 to 7, the Additional Settlement Commis sioner, Lahore, by order dated the 7th June. 1961, set aside the order of transfer in favour of Allah Ditta. He divided the house into two portions. The entire ground floor was given to Feroze Din and first floor to Allah Ditta, the predecessor‑in‑interest of the appellants. Deowri of the house in dispute was kept joint. Allah Ditta filed a revision before the Settlement Commissioner which was dismissed by him on the 17th November, 1961. A second revision petition was filed before the Chief Settlement Commis sioner, which, was dismissed on account of change in law, on the 22nd December, 1962. The appellants challenged the order in Writ Petition No. 2784/R of 1962 in the former High Court of West Pakistan, Lahore. They contended that the appellants' predecessor‑in‑interest was an allottee and respondents were non‑allottees and, therefore, preference should have been given to the appellants' predecessor‑in‑interest. The writ petition was dismissed by a learned Single Judge of the High Court, by order dated the 27th February, 1964. A Letters Patent Appeal was also dismissed in limine on the 18th February, 1905. The appellants then filed a petition for special leave to appeal which was granted on the 7th May 1965. Special leave was granted to consider the question whether a non‑allottee's possession could not be taken into account for holding that the house was possessed by several persons.
Mr. Tanvir Ahmad, learned Advocate‑on‑Record, frankly conceded that the point under consideration has been decided by this Court in several cases and it has been held in the cases of Barkat Ali v. Mohammad Sharij and another (P L D 1966 S C 817), Abdul Majid Shaida v. Mst. Noor Jehan and another (P L D 1967 S C 221) and Sh. Khursheed Mohammad v. The Settlement and Rehabilitation Commissioner and another (P L D 1971 S C 498), that a person holding allotment order and another person a non‑allottee but otherwise in undisputed occupation of a portion of property, both stand on same footing and person having allotment could have no preference over non‑allottee. In these circumstances, the decision of the High Court on the point under consideration is not open to challenge. Accordingly, the appeal is dismissed with no order as to costs.
Appeal dismissed.
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