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Civil Petition for Special Leave to Appeal No. 849 of 1974, decided on 17th November, 1979.

(On appeal from the judgment and order of the Lahore High Court, dated 29‑5‑1974 in W. P. 1120‑R of 1966).

‑‑S. 2 (4)‑Word "house"‑Definition‑Special leave to appeal‑Granted by Supreme Court to consider whether property in dispute was a "house."‑[Words and phrases].

Mazharul Haq Sheikh, Advocate and Rao M. Yusuf Khan, Advocate‑on -Record for Petitioners.

Nemo for Respondents.

Date of hearing : 17th November, 1979.

‑The dispute in this petition for leave relates to property number 140, Ward number 13 of Chiniot town. Mr. Mazharul Haq stated that the land in dispute was part of khasra No. 12646/8078, which was admittedly agricultural land at the time of partition. The petitioner claims to have occupied a part of this khasra number on 1‑8‑1948 and the dispute in this petition is limited to the part of khasra number 12646/8073 thus occupied by the petitioners. However, the fourth respondent, to whom we will refer as the respondent, also claims the land in dispute by virtue of an allotment order obtained by him after partition which was confirmed in 1952. But, admittedly a house is built on the land in dispute, and because in his opinion, the value of the house came to Rs. 12,800, the Deputy Settlement and Rehabilitation Commissioner, Chiniot, Jhang, held by his order dated 21‑12‑1960 that the land in dispute was a house within the meaning of sub section (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the said Act). And, after pointing out that it was within municipal limits and had been in the possession of the petitioners before 20‑12‑1958 he transferred it to them "in the ratio of half and half". However, as the land in dispute bad been confirmed in 1952 in the respondent's favour, this respondent challenged this order of 21‑12‑196( and at the same time, the petitioners filed an appeal before the Deputy Rehabilitation Commissioner, Chiniot, against the order confirming the land in dispute as agricultural land in the respondent's favour. And, it is sufficient to state here that the order of 21‑12‑1960 in favour of the peti tioners was set aside on 26‑9‑1961 by the Deputy Settlement and Rehabilitation Commissioner, Jhang.

Then the petitioner challenged this order of 26‑9‑1961 in an appeal before the Additional Settlement Commissioner and after hearing the parties, the Additional Settlement Commissioner remanded the case on 4‑1‑1963 to the Deputy Settlement Commissioner for reexamining the claims of the parties in the light of the petitioners' contention that the structure on the land in dispute exceeded Rs. 10,000, in value and was, therefore. a house within the meaning section 2 (4) of the said Act. The Deputy Settlement Commissioner, however, decided this question by his order dated 20‑9‑1963 against the petitioners. Unfortunately, although the Deputy Settlement Commissioner had been directed to examine the petitioners' claim in the light of definition of land in the said Act, he did not do so but he held that the land in dispute was land within meaning of the Displaced Persons (Land Settlement) Act, 1958 and as it had been confirmed in 1952 in the respondent's favour, he rejected the petitioners' claim.

The petitioners challenged this order in an appeal before an Additional Settlement Commissioner, who dismissed the appeal in a vary cursory order without examining the petitioners' contention that the land in dispute fell squarely within the definition of a house in subsection (4) of section 2 of the said Act. The petitioners challenged this order in a revision, but as their revision was dismissed on 16‑7‑1966, they filed a writ petition in the Lahore Seat of the West Pakistan High Court on 19‑9‑1966.

This writ petition was contested by the respondent and came up for hearing after nearly eight years before a learned Judge of the Lahore High Court. Once again the petitioners agitated before the High Court that the structure on the land in dispute admittedly exceeded Rs. 10,000, in value, therefore, the land in dispute was a house within the meaning of section 2 (4) of the said Act. But, after noting this plea, the learned Judge observed that the petitioners had allowed the order confirming the land as agricultural land in the respondent's favour to become final and strangely enough, he appears to have reached this conclusion on the basis of the order passed on 25‑1‑1964 by the Deputy Rehabilitation Commissioner, Chiniot in the appeal filed by the petitioners against the order confirming the land in dispute in the respon dent's favour on the footing that it was agricultural land. After referring to this order of 25‑1‑1964 the learned Judge observed that the petitioners could not' challenge the finding that the land in dispute was agricultural land because they had taken no steps to challenge the order confirming it in the respondent's favour. And, further as the learned Judge agreed with the view taken by the Additional Settlement Commissioner as well as by the Settle ment Commissioner, he dismissed the writ petition by his judgment dated 29‑5‑1974. Hence this petition for leave.

Learned counsel submitted that the High Court had erred in not examin ing his contention that the land in dispute was a house within the meaning of section 2 (4) of the said Act. Further, the Deputy Rehabilitation Commis sioner, Chiniot had observed in his order of 25‑1‑1964 that the question whether the land in dispute was a house was sub‑judice before the Additional Settlement and Rehabilitation Commissioner, therefore, learned counsel's further submission was that the High Court had misread this order of 25‑1‑1954 and erred in holding that it could not interfere with the finding in the impugned orders that the land in dispute was a house.

The petition turns on the meaning of the word "house" in the said Act and learned counsel's submission is supported by the finding in the order of 21‑12‑1960 that the value of the property "even after deduction of 25 % as laid down for Chiniot comes to Rs. 12,800," The petition also raises other questions of law. Accordingly, we grant leave as prayed. Security in the sum of Rs. 1,000. The appeal will be made ready on the present record with liberty to the parties to file additional documents.

Leave granted.

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