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Civil Petition for Special Leave to Appeal No. 252 of 1975, decided on 26th October, 1980.

(On appeal from the judgment and order dated 20th December, 1974 of the Lahore High Court, Lahore, in Letters Patent Appeal No. 113 of 1974).

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)--

--Sched. Part I‑Transfer of evacuee house‑House transferred to appellant and disputed. premises bearing two different numbers with separate assessments since before Partition‑‑Appellant having applied for transfer of house in self occupation and its price evaluated accord ing to its assessment‑Appellant neither seeking transfer of disputed premises nor considering same to be part of house transferred to him and filing no claim against occupant of disputed premises for nearly 10 years‑House transferred to appellant as' well as disputed premises separately allotted to appellant and respondent and possession of dig put premises given to respondent prior to delivery of possession of his house to appellant‑Appellant, held, rightly, found to have not sought transfer of disputed premises hence, not entitled to same.

Major Ishaq Muhammad Khan, Advocate, instructed by Syed Inayat Hussain, Advocate‑on‑Record for Appellant.

Qureshi Muhammad Hafiz, Advocate Supreme Court instructed by Tanvir Ahmad, Advocate‑an‑Record for Respondents Nos. 1 and 2.

Date of hearing 26th October, 1980,

‑‑The bone of contention between the parties is a premises bearing No. B‑III‑8S‑3, which is said to be a stable.

On 13‑7‑1959 Sheikh Mehar Din predecessor of the petitioner filed C. H. form for the transfer of property bearing No. B‑III‑8S‑1,being a house in self‑possession. In this application no reference was made to the premises in dispute or that it was in occupation of any person. This application 'was granted and a P. T. D. was issued in favour of Sheikh Mehar Din on 23‑9‑1965.

On 7‑1‑1959 the respondent Aziz Din filed his C. H. form for the transfer of the premises in dispute and it is alleged, notwithstanding the finding to the contrary by the High Court, that without any order of transfer, this respondent was issued P. T. D. on 28‑4‑1960 which was followed by P. T. D. dated 11‑11‑1968, which mentions an order of transfer made by the Deputy Settlement Commissioner on 2-4‑1960.

The petitioner's case that it was not until time that Sheikh, Mehar Din came to know about the aforesaid transfer of the disputed premises in favour of Aziz Din, when he made two applications one to the Settlement Commis sioner (Urban) and the other to the Additional Settlement Commissioner. The Settlement Commissioner (Urban) vide his order dated 16‑11‑1970 informed Mehar Din as follows:

"Since both the properties are independent units with two different numbers having been transferred to different parties and P T D had been issued, it is, therefore, regretted that your request for transfer of the other property cannot be acceded."

In so far as the Additional Settlement Commissioner was concerned, Sheikh Mehar Din was informed that he should seek proper legal remedy. Sheikh Mehar Din then filed an appeal before the Deputy Settlement Commissioner under section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, against the order passed by the Assistant Settlement Commissioner, Gujranwala, dated 26‑9‑1959 read with order dated 13‑12‑1959 whereby it was ordered that Appendix VII be issued to Aziz Din and consequently deed for transfer of the property be issued in favour of respondent Aziz Din in respect of the disputed property. In this appeal, it may be noted that it was the case of Sheikh Mehar Din that the evacuee owner had constructed two rooms, which were temporarily being used by Aziz Din as stable. The appeal was dismissed by order dated 30‑11‑1972 on the twin ground that house transfer red to Shaikh Mehar Din was an independent premises, being bearing a separate number with its own assessment and therefore, quite distinct from the disputed premises and that Mehar Din having been transferred that which he had applied for, had no locus standi to challenge the transfer of the dis puted premises to respondent Aziz Din. 1t was also noticed that the Settle ment Commissioner (Urban) vide order dated 16‑11‑1970 had already rejected the request of Shaikh Mehar Din for the transfer of the disputed premises in his favour. Shaikh Mehar Din, however, succeeded to revision, vide order dated 3‑12‑1973 on the finding that the disputed premises was a stable and part and parcel of the house transferred to Shaikh Mehar Din. It was also found that respondent Aziz Din was not residing in the disputed premises but was using it for the purpose of tethering his cattle. The aforesaid order in revision became the subject‑matter of challenge in a Writ Petition No. 219/ R‑1974 filed by respondent Aziz Din in the High Court of Lahore and the learned Single Judge in 'the High Court vide his judgment dated 5‑11‑1974 set aside the order in revision and maintained the order in appeal dated 30‑11‑1972 made by the Deputy Settlement Commissioner. The learned Single Judge apart from confirming the finding of the Deputy Settlement Commissioner that the appellant Mehar Din had only applied for property bearing No. B‑XII‑8S‑1 and not for the transfer of the property in dispute, also came to the conclusion that it was not open to the Settlement Authorities to re‑open the P.T.D. dated 18‑11‑1966 issued in favour of respondent Aziz Din. Mehar Din filed an Intra Court Appeal which was dismissed vide judgment dated 20‑12‑1974 on the short ground that the Settlement authorities ceased to exercise jurisdiction in relation to a property which had been permanently transferred, and such being the law laid down by this Court in 1973 S C M R 624 and 1974 S C M R 8, irrespective of the equities in favour of Shaikh Mehar Din.

Major Ishaq Muhammad Khan, the learned counsel for the petitioner, who are the legal heirs of the transferee Shaikh Mehar Din, raised several con tentions in relation to the transfer of the disputed premises in favour of Aziz Din more particularly that a stable could not in law become the subject matter of transfer under Displaced Persons (Compensation and Rehabilitation) Act, and that there was no order of transfer by Deputy Settlement Commissioner in favour of respondent Aziz Din. Apart from the fact these contentions have no merit, what is to be considered first is the petitioner's contention that the disputed premises was a part and parcel of the house transferred to him and, therefore, could not have become subject‑matter of subsequent transfer in favour of respondent Aziz Din, for if that is not so, the appellants will have no locus standi to challenge the transfer of the disputed premises in favour of respondent Aziz Din. The admitted facts are that the house transferred to Shaikh Mehar Din and the disputed premises bear two different numbers with separate assessments since before Partition. The applicant Mehar Din had applied for the transfer of the house in self‑occupation and its price was evalued according to its assess ment. That Shaikh Mehar Din had neither sought the transfer of the dis puted premises nor did he consider the same to be the part and parcel of the house transferred to him is further clear from the fact that for a period of nearly 10 years he never made any claim against the occupant of the disputed premises. It was also conceded by the learned counsel for the petitioner that the house transferred to Mehar Din as well as disputed premises were separately alotted to Mehar Din and respondent Aziz Din and while the former came into possession of the house on 1‑8‑1947, the possession of the disputed premises with the respondent Aziz Din was prior in point of time. In this view of the matter the learned Single Judge in the High Court was right in restoring the finding arrived at by the Deputy Settlement Commissioner in his order dated 30‑11‑1972 that not only disputed premises, was not a par and parcel of the house transferred to Mehar Din but was an independently assessed property in possession of respondent Aziz Din the transfer of which had not been sought by Shaikh Mehar Din.

The result is that there is no merit in this appeal and it is accordingly dismissed.

Appeal dismissed.

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