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Civil Petition for Special Leave to Appeal No. 210 of 1973, decided on 8th May 1974,

(From the judgment and order dated 22‑5‑1973 of the Lahore High Court, passed in W. P. No. 1481/R of 1965).

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑

--‑‑Ss. 29 & 30‑P. T. O. being issued, transferee applying for ejectment of occupant‑Occupant admitting his occupation only as tenant and merely claiming statutory tenancy under S. 30‑Tenant, held, could not, in circumstances, set up a hostile title in himself.

(b) Rehabilitation and Settlement Scheme No. VI‑--

‑‑‑‑ No evidence to show occupant or his predecessor having rebuilt shop at his or their own expense‑No evidence either to show anyone of such occupants to have ever applied for transfer to them of shop in dispute under scheme No. VI‑ Occupants, held, vested with no right to transfer of shop.

Gul Muhammad Khan, Advocate Supreme Court instructed by Tanvir Ahmed, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 8th May 1974.

MUHAMMAD GUL, J.‑

This petition for special leave is from the order of a learned Single Judge of the Lahore High Court dated 22‑5‑1973, in Writ Petition No. 14bl/R of 1965, upholding the transfer of an evacuee shop in favour of respondents 1 and 2 herein.

The dispute relates to shop No. 704, Block No. 1, Chauk Bazar, Jhang, which admittedly was evacuee property. Originally the shop was in unauthorised occupation of one Muhammad Husain, a local who transferred its possession to one Ilahi Bakhsh, also local for some consideration. On an inquiry by the Rehabilitation Department, a notice of ejectment was issued to Muhammad Husain on 24‑8‑1954, requiring him to vacate the shop within seven days. His appeal to the Additional Rehabilitation Com missioner against his threatened ejectment failed. However, during the pendency of the appeal he succeeded in securing stay order from Additional Rehabilitation Commissioner. While the stay order was in operation, Muhammad Husain inducted one Abdul Ghafur into possession of the shop.. The latter in turn, transferred its possession to Dost Muhammad, predecessor‑in‑interest of the petitioners herein. All these transactions were unauthorized without any reference to the Rehabilitation Authorities.

With the issuance of the ejectment notice dated 24‑8‑1954, against Muhammad Husain, requiring him to vacate the shop within seven days, the shop was allotted to one Fazal Muhammad which, later was set aside, and the shop was allotted to Muhammad Yasin, respondent No. 2 herein. An appeal by Fazal Muhammad against allotment in favour of Muhammad Yasin was dismissed by the Additional Rehabilitation Commissioner on 22‑4‑1955, and the matter was not pursued further by Fazal Muhammad.

On the commencement of the Settlement operations, the shop was transferred to Muhammad Yasin respondent 2, on his N. C. S. form, by order dated 4.10‑1960, being an allottee who had not succeeded in securing possession, but was given the benefit of instruction contained in the Press Note No. 12975‑PI‑Rehl60, dated 9‑9‑1960. Muhammad Yasin then entered into agreement of association with Ikramul Hassan, respondent No. 1, which was duly approved by the Settlement Authorities. Under the agreement Muhammad Yasin surrendered all his rights in the shop in favour of respondent No. 1. A P. T. O. was also issued in favour of the latter.

After the issuance of the P. T. O. in his favour. Ikramul Hassan applied under section 29 of Act XXVIII of 1958, to the Deputy Settlement Commissioner praying for the ejectment of Dost Muhammad from the shop in dispute. In his written reply Dost Muhammad resisted his ejectment on a number of pleas of technical nature. He, however, admitted his possession of the shop as tenant under lkramul Hassan and, therefore, claimed all the privileges of a statutory tenant under section 30 of the Act. The Deputy Settlement Commissioner dismissed the application of respondent No. 1 on 12‑12‑1961, leaving him to seek remedy from the proper Court. After rejection of the application Dost Muhammad filed a belated appeal in the Court of the Additional Settlement Commissioner against the transfer of the shop in favour of Muhammad Yasin and his Associate respondent No. 1. The Additional Settlement Commissioner without adverting to the question of limitation set aside the transfer in favour of Muhammad Yasin and respondent No. 1, on the ground that the former though an allottee of the shop, never succeeded in getting its possession or getting an order of ejectment issued against Muhammad Husain. With these observations, the time‑barred appeal of Dost Muhammad was accepted. That order was up held by the Settlement Commissioner by order dated 28‑9‑1965 on revision filed by respondents 1 and 2.

Thereupon, respondents 1 and 2 filed writ petition in the High Court and by means of the impugned order, the revisional order of the Settlement Commissioner, maintaining that of the Additional Settlement Commissioner, was set aside and the transfer of shop in favour of respondents 1 and 2 upheld.

In seeking leave, the petitioners' learned counsel contended that it was clearly established on the record that Muhammad Yasin had never succeeded in securing the possession of the shop in dispute after its allotment in his favour, and that the shop throughout remained in possession of Muhammad Husain, or as the case may be, Dost Muhammad and certain others. That being so, according to the learned counsel, the transfer of the shop in favour of Muhammad Yasin was void ab initio. 1t was also submitted that the shop in dispute had been washed away in floods and that there was material on the record to show that Dost Muhammad had constructed the shop anew at his own expense. Therefore, it was urged that Muhammad despite being a local and unauthorized occupant had acquired a right under Scheme No. VI to the transfer of the shop.

The argument, however, conveniently overlooks the fact that in the application for ejectment under ssction 29 of Act XXVIII of 1958, made by Ikramul Hassan after the issuance of the P. T. O. in his favour, Dost Muhammad had categorically admitted his possession of the shop as tenant under Ikramul Hassan and only claimed for himself the privileges of a statutory tenant under section 30 of the Act. That being so it does not lie in his mouth now to set up a hostile title. Even otherwise, there is no finding by any of the Settlement Authorities that Dost Muhammad or any of his unauthorised predecessor‑in‑possession had built the shop at his own expense so as to be eligible for its transfer under any of the schemes under the Act. Not only that, there is nothing to show that Dost Muhammad or any of his unauthorized predecessor‑in‑possession had ever applied under Scheme No. VI for the transfer of the shop at any time prior to its transfer in favour of respondent No. 2.

For the foregoing reason, there is no merit in this petition which is hereby dismissed.

Petition dismissed.

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