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(On appeal from the judgment and order of the Lahore High Court, dated 23.4‑1975 in W. P. No. 820/R of 1973).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑ Art. 185(3)‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1950, S. 10 & Sched.‑Leave to appeal‑Granted to examine whether disputed property was not a part of house already standing transferred to predecessor‑in‑interest of petitioners and same could not be subsequently taken away from her.

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

‑‑ S. 10 and Sched.‑Record of Settlement Authorities clearly showing that whole of disputed property stood transferred to predecessor in -interest of appellants who held P. T. O. for same ‑ Settlement Authorities going against records of Survey and Taxation Department acting on surmises and conjectures and treating a portion of such property, occupied by one of respondents, as a separate property Order of High Court and that of Settlement Authorities set aside.

Saeeduddin Khan, Advocate Supreme Court and Rana Maqbool Ahmed Qadri, Advocate‑on‑Record (absent) for Appellants.

Respondents : Ex parte.

Date of hearing : 18th February, 1984.

SHAFIUR RAHMAN, J.‑

Leave to appeal was granted to the two appellants who are the legal representatives of one Mst. Eido, to examine whether the disputed property was not a part of evacuee House No. 9 which already stood transferred to her as long ago as 17th of December, 1959 and it could not, therefore, be subsequently taken away from her.

The disposal of Houses Nos. 7, 8 and 9 in Block II of D. G. Khan gave rise to the present dispute which concerns a portion of the property which was at one time taken to be a part of house No. 9 transferred to Mst. Eido but subsequently as part of House No. 8 transferred to Abdul Latif and finally as a house by itself (No. 8/A) which remained un-disposed of. House No. 7 was sought for by one Sharif and Abdul Shakoor. Abdul Shakoor failed in getting it transferred and his appeal before the Additional Settlement Commissioner also failed. Across the land was the House No. 8 which was transferred to a non‑claimant Latif who was not in a position to pay its price and, therefore, associated with Khair Din, father of Nazeer Ahmed respondent and surrendered in his favour all his rights in that property. Abdul Shakoor and his father Karimuddin forcibly occupied the House No. 8 whereupon Khair Din instituted a civil suit seeking their ejectment and on a statement made by the parties on 30th of September, 1964 the suit was decreed and he was given the possession of that house. All along, while fighting the case against Karimuddin and Abdul Shakoor, Khair Din had given out that he was occupying as a licensee of Msr. Eido a portion of House No. 9 the disputed portion adjacant to House No. 8 but after his success in that litigation he refused to recognize the interest of Mst. Eido whereupon she filed a civil suit seeking possession from him. During the suit Khair Din contested the very fact of transfer of property to Mst.. Eido and the civil Court on the report of the Deputy Settlement Commissioner held that the disputed portion was neither a part of House No. 9 nor of 8 and was omitted from the survey record and remained available for disposal. The admissions made by Khair Din in his pleadings and statement in Court were taken to be untrue and mistaken on facts. The suit of Mst. Eido was dismissed on 7th of September, 1966 and her appeal also failed before the District Judge on 2Uth of April, 1967.

Nazeer Ahmed son of Khair Din thereafter in 1966 applied for transfer of that disputed portion under Settlement Scheme No. VI11. His claim to its transfer was examined a number of times and the penultimate order to the settlement hierarchy was passed at the level of Additional Settlement Com missioner on 10‑3‑1971 whereby both, the legal representatives of Mst. Eido as well as Nazeer Ahmed were held entitled to the transfer of the property and it was ordered to be put to auction. Separate revision petitions were filed against this order by both the parties. The one filed by the appellants was disposed of first ou 5th of August, 1971 and Mst. Eido was held by the Settlement Commissioner to be in fact the transferee of the entire House No. 9 and it included the disputed portion. When the revision petition of Nazeer Ahmed came to be heard by another Settlement Commissioner by order dated 20th March, 1973 he held that the property had not been transferred and was awaiting transfer and Nazeer Ahmed was entitled to its transfer.

The appellants filed a constitutional petition in the High Court challeng ing the order of the Settlement Commissioner dated 20th March, 197‑1 in favour of respondent Nazeer Ahmed. A learned Judge of the High Court held as regards the claim of the appellant to be transferee of the property that :‑

"I do not find any force in the arguments of the learned counsel for the petitioners that the portion in dispute is a part of Property No. 9. Only the settlement authorities had jurisdiction to decide whether a property is one unit or not and if one unit whether divisible or indivisible. Since the Additional Settlement Commissioner and the Settlement Commissioner have found that the portion in dispute is independent one, the said finding on the question of fact cannot be challenged in Writ Petition."

As regards the entitlement of Nazeer Ahmed, the learned Judge held as follows :‑

"It thus stands established that Nazir Ahmed was not in possession since before 20‑12‑1958 but was put in possession by his father much afterwards and that as his father was a licensee of Mst. Eido he also came in possession in the same capacity, he, therefore, was not entitled to the transfer of the portion in dispute in the auction list."

Nazar Mohammad had not, it appears, challenged this order by which he was removed from the arena. It is only the appellants who are the legal representatives of the original transferee of Mst. Eido who bad filed the appeal.

The learned counsel for the appellants contended that Mst. Eido had asked for the transfer of House No. 9, that House No. 9 was transferred in full to her and that like all other houses in that block the area of this house was also between 6 and 7 Marlas and that it was transferred as per record of the Custodian and survey register. The thesis that there was another property different from House No. 9 which had escaped the notice and record of survey authorities, both of Custodian and the Taxation Department, was preposterous and untenable. She being the transferee of the whole property, no exclusion there from could be made on the basis of claims subsequently advanced and in fact there were so many conflicting reports that it could not be held so by any settlement authority that it was a property distinct and separate. It is also contended that very valuable admission made by Khair Din and the background to which the controversy over this premises developed have been totally ignored on a very flimsy ground.

The respondent has not appeared to contest the proceedings and the appeal has been heard ex parte.

We had the benefit of going through the survey and the taxation records which formed the basis of the transfer and find that Mst Eido had claimed the full house and had been transferred the full house and she held a P. T. O. for the same. We also find that Khair Din had repeatedly made statements confirming that he had obtained possession of the part of the House No. 9 from Mst. Eido when pursuing his litigation against Karimuddin and Abdul Sattar in respect of House No. 8. This admission was in fact in line with the settlement record which showed the properties Nos. 8 and 9 to be adjacent, y to be in occupation of Mst. Eido as its transferee. The local inspection of the Additional Settlement Commissioner dated 27‑4‑1970 which was in point of time the last local inspection of the property fully establishes it. We find that the record of the settlement authorities clearly showed that the whole of this property stood transferred to Mst. Eido and she held a P. T. O. for it. The settlement authorities in treating the portion occupied by Khair Din as a separate property not entered in the record and still awaiting disposal have gone against the records of the survey and taxation department, have acted on surmises and conjectures which do not get support from any quarter and have the effect of reducing the property competently transferred to Mst. Eido to its half. The appeal is, therefore, allowed. The order of the High Court is set aside as also that of the Settlement Authorities holding that Mst. Eido, the predecessor‑in‑interest, of the appellants, was not the transferee of House No. 9 inclusive of the disputed portion. On the strength of her P. T. O. dated 17‑12‑1959 and as per record of the Settlement Department she was the transferee of the entire House No. 9 which included the portion in dispute. No order as to costs.

S. Q. Appeal allowed.

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