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‑‑Sched., para. 2‑Dispute over roof of property consisting of residential portion and shops‑No construction on first floor of disputed property‑ Petitioner transferred residential portion Entitled to claim roof over shops as well‑Transfer of portion to parties means from ground to sky and not horizontal ly‑[Muhammad Yaqoob v. Settlement and Rehabilitation Commissioner and others P L D 1973 S C 439 held not applicable].

Muhammad Yaqoob v. Settlement and Rehabilitation Commissioner and S others P L D.1973 S C 439 held not applicable.

Ch. Khalil‑ul‑Rehman for Petitioners.

[3‑11‑1975]‑The dispute in this case pertains to the roof of the property in question which consists of three shops and a residential portion. The plan Annex. A' shows that except a latrine there is no construction on the shops. The Deputy Settlement Commissioner held that the petitioner has no right to own the roof exclusively. The Settlement Commissioner, however, permitted him a right of access. The plan Annex. A' shows that there is no construction on the first floor. According to the notice Annex. B' the construction of the latrine seems to have been made unauthorisedly and without the permission of the transferee of the shops.

2. The contention of the learned counsel is that in view of a judg ment of the Supreme Court in P L D 1973 S C 439, his client is entitled to the entire roof as well in addition to the residential portion. However, in view of the fact that there is no construction on the first floor I do not think the petitioner would be able to claim the roof over the shops as well. The learned counsel states that the plan does not seem to be correct and he would like to file a copy representing the true position as it existed in 1947. He is permitted to do so. To come up on 17th November, 1975.

[17‑11‑1975]‑The learned counsel had on 3rd of November, 1975 sought permission for placing the copy of the plan on the record, as the one already existing was not correct. The previous order shall therefore, be read as a part of this order. It is stated by the learned counsel today that the plan already on the record is correct and therefore, the same be taken into consideration for the purposes of decision of this case. Admittedly, there is no residential portion on the first floor. It is not clear from the record if the latrine constructed on one of the shops existed after partition or has been constructed subsequently. According to the petitioner it was there Ion, before, while .the respondent says that at had been constructed unauth orisedly long after. The learned counsel relied on Muhammad Yaqoob v. Settlement and Rehabilitation Commissioner and 3 others (P L D 1973 S C 339) to say that in spite of the fact that there is no construction on the first floor, his clients will be entitled to the transfer of the entire first floor for reason that they had been in possession of the same. He relied on the notices given by the respondents to petitioners under section 30 as well as their reply. The notice by the respondents does‑not say that the petitioners had been in lawful possession of the first floor. It is rather disputed in the notice. Be that a it may, the fact that no construction is on the first floor, the transfer by the D. S. C. of their portions to the parties would mean from ground to 8 the sky and not horizontally. The judgment cited by the learned counsel does not apply, because in that case there was a residential portion situated on the first floor and the open space on the portion transferred to others but being used by the transferee of the residential portion was given to him as a part of residential portion. It was in that situation that their Lordships of the Supreme Court observed that the transferee of the shop is only to be able to claim his transfer to the calling and not beyond.

2. For the reasons stated above, there is no merit in this petition and the same is dismissed in limine.

M.Y.H. Petition dismissed.

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