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Civil Petition for Review No. 14 of 1974, decided on 31st May 1974.
(On a review of the order of this Hon'ble Court made on the 11th of March 1974, in C. P. S. L. A. No. 412 of 1973).
‑‑ Ss. 2 bi 3 & Sched. I‑Transfer of shop‑Respondent entering into possession as mortgagee from non‑Muslim owner and mortgage recognised by Custodian‑Deemed to be in possession within meaning of word "possession" as defined in cl. (a) of S. 2 Respondent having inducted petitioners on to property as his tenants, subsequent acquisition of property by Central Government free from all encumbrances by notification, held, did not in any manner affect respondent's possession on prescribed date of 20th December 1958‑Petitioners having no independent locus standi of their own on 20‑12‑1958, held, not entitled to transfer of property in preference to respondents.
Abid Hassan Minto, Advocate instructed by Sh. Masud Akhtar, Advocate can‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 11t4t May 1974.
This petition seeks a review of the order made by us on the 11th of March 1974, dismissing Civil Petition for Special Leave to Appeal No. 412 of 1973, presented by the petitioner to challenge an order made by a learned single Judge of the Lahore High Court on 28‑9‑1973 in respect of shop No. 48 situate in Nadir Shah Bazar, Bahawalnagar. By the said order the learned Judge in the High Court allowed the Constitution petition filed by the respondent Haji Khuda Bakhsh, holding that he was in possession of the said shop and, therefore, entitled to its transfer. The learned Judge further held that the petitioners, as tenants of Haji Khuda Bakhsh, could not be deemed to be in possession in their own right.
In the order under review we have upheld this view of the High Court, on the ground that the respondent Haji Khuda Bakhsh was a Muslim mortgagee in possession of the property in dispute, and his mortgage had been recognised by the Custodian of Evacuee Property after the migration of the non‑Muslim owner. We have further endorsed the view of the High Court that petitioners having entered on the property as tenants of the respondent, they could not get property transferred in preference to him.
It is submitted by Mr. Abid Hassan Minto that while refusing to grant leave to appeal we have overlooked the legal effect of the acquisition of the property in dispute under section 3 of the Displaced Persons (Com pensation, and Rehabilitation) Act, 1958, for the purpose of constituting the compensation pool, as such acquisition had the effect of wiping out the respondent's mortgage altogether, with the result that he could no longer be deemed to be in possession. The learned counsel submits that as a logical corollary, the only persons in possession would be the petitioners, although they may be regarded as being authorised occupants within the meaning of Central Government notification of the 13th of October 1959.
We see no merit in these submissions. For the purpose of ascertaining entitlement to the transfer of the property, it is necessary to determine as to which party is in possession. The respondent having entered into the possession of the property as a mostgagee from the non‑Muslim owner, rind his mortgage having been subsequently recognised by the Custodian of Evacuee Property, he was in possession within the meaning of that term as defined in clause (6) of section 2 of the Act. It was he who inducted the petitioners on to the property as his tenants. The acquisition of the property by the Central Government free from all encumberances by a notification issued on the 21st of August, 1959, did not in any manner affect the respondent's possession on the prescribed date, namely, the 20th of December 1958. On that date the petitioners had no independent locus standi of their own, as they derived, their possession from the respondent.
For the foregoing reasons the review petition fails and is, hereby dismissed.
Petition dismissed.
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