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Writ Petition No.1839‑R of 1976, decided on 4th December, 1985.

‑‑Sched., para. 1‑‑Transfer of house‑‑Transferee of house in dispute got that house transferred in his name on basis of possession of petitioner who admittedly was nephew of that transferee‑‑Nobody could claim benefit of possession of nephew; nephew being not spouse, parents children, and uncle could not have claimed or been transferred house on basis of nephew's possession‑‑Transfer order was set aside and C . H . Form filed by petitioner in respect of transfer was deemed to be pending disposal in accordance with law in circumstances.

M.Pervaz Akhtar with Ch. Abdul Aziz for Petitioner.

Nemo for Respondents Nos. 1, 2, 10 to 16.

Respondents Nos. 3 to 9: Ex parte.

Date of hearing: 4th December, 1985.

This writ petition relates to a dispute in respect of half portion of residential House No. N.VII‑6‑S‑9, Badami Bagh, Lahore, which was transferred by a Deputy Settlement Commissioner in favour of one Muhammad Rafiq and Abdul Karim. The private respondents are the successors‑in‑interest of said Abdul Karim to whom a unit of the house was transferred.

2. It is the petitioner's case that Abdul Karim was never in possession of the property in dispute but was a maternal‑uncle of the petitioner residing at Rawalpindi. Reliance is placed on Annex. 'C' to writ petition (a certified copy of the C. H. Form through which Abdul Karim (since deceased) applied for the transfer of this property as a claimant displaced person on the strength of possession of petitioner Abdul Hafeez on the plea that the petitioner was his nephew and a co‑claimant. The transfer was claimed on the basis of Paragraph .1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It is further claimed by the petitioner that Abdul Karim gave a statement on 20‑2‑1960 stating that he had submitted a form for the benefit of the writ petitioner who was his nephew. The petitioner's further case is that he was giving application after application for disposal of his own Form CH (Annex. 'E') which he had once given earlier on 25‑11‑1959 and later on submitted a duplicate form on 19‑2‑1960 as the previous one was not traceable. The said Abdul Karim, predecessor‑in‑interest of the private respondents, died on 9‑4‑1961 and thereafter his legal heirs were brought on the record by the D.S.C. in the year 1976 which included also Abdul Hafeez.

3. Respondents No.3 to 9 were ordered ex parte by order of this Court, dated 3‑7‑1978. Notice was issued to rest of the respondents for today's actual date as, per office endorsement on the back of the file. None has appeared despite repeated calls. They are also ordered ex parte.

4. It is argued by the learned counsel for the petitioner that ex facie a bare perusal of Annex. 'C' which is a certified copy of CH form submitted by Abdul Karim would show that he was claiming the house on the basis of possession of Abdul Hafeez who was his nephew. It is submitted that under Para.1 of the Schedule of the Act nobody could claim the benefit of the possession of the nephew as that paragraph contemplated possession of the spouses, parents and children. The petitioner not being related to said Abdul Karim in the degree above mentioned, no property could have been claimed or transferred on the basis of nephew's possession. It is further submitted that the position was clarified by Abdul Karim himself as is evident from the material on the record but nobody seems to have bothered to examine this aspect of the matter.

5. The petitioner has been able to make out a case of non‑disposal of the CH Form. It was indeed the obligation of the Settlement Department to dispose of the CH or NCH form when it was submitted under the law. The result is that the petitioner's CH form would be deemed to be pending disposal in accordance with law.

6. In the light of the above circumstances, I would accept the writ petition and set aside the impugned order to the extent of the portion transferred to Abdul Karim and not that which fell to the share of Muhammad Rafiq. The case is accordingly remanded to the notified officer who shall take up the disposal of the CH form of the petitioner in accordance with law. He shall, however, before disposal of the case, hear all the parties necessary including the heirs of Abdul Karim who have not turned up before this Court. The notified officer shall also make due inquiry regarding the statement attributed to Abdul Karim and verify the authenticity of the documents constituting the record of the Department before disposal of the proceedings in remand. The question of possession of the property in dispute shall also be determined. Since none has appeared to oppose this petition there will be no order as to costs.

H . B . T . Petition accepted.

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