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Civil Appeal No. 274 of 1976, decided on 14th June, 1986.

(On appeal from the judgment and order of the Lahore High Court, dated 12‑11‑1973 in W.P. No. 1288/11 of 1966).

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 2, 10 & 11‑‑Leave to appeal granted to consider whether appellant was in occupation of property in question and had in fact applied for transfer of that property.

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10 & 11‑‑Leave to appeal granted to consider whether a person in possession of a servant quarter of an evacuee property could lay a claim to transfer of main house in absence of any contestant in possession of it.

‑‑‑Ss. 2, 10 & 11‑‑Transfer of property‑‑Appellant on basis of her son's possession over a part of property in question applying on C . H . Form for transfer of house‑‑Before disposal of her C . H . Form property was listed for disposal under Earmarking Scheme‑‑Disposal of property as such challenged‑‑Appellant's son admitting that he was in occupation of a servant quarter of property and this fact also stood proved by an entry in CSC‑11 Register‑‑Held, appellant had no entitlement under law for transfer of main house‑including servant quarter on the basis of possession of a servant quarter only.

Mst. Fazlun Nisa Begum v. Chief Settlement Commissioner and others P L D 1967 Kar. 402; Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner P L D 1966 S C 719; 1972 S C M R 126 and Ch. Sadiq Ali v. Settlement Commissioner 1977 S C M R 440 ref.

Farooq Hasan Naqvi, Advocate Supreme Court instructed by S. Abul Asim Jafri, Advocate‑on‑Record (absent) for Appellant.

A.R. Sheikh, Senior Advocate Supreme Court instructed by Inayat Hussain, Advocate‑on‑Record for Respondents Nos. 1 to 4.

Rao M. Yousuf Khan, Advocate‑on‑Record for Respondents Nos.5 and 6.

Sh. Zamir Hussain, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Applicants.

Date of hearing: 14th June. 1986.

Leave to appeal was granted to consider; firstly, whether the appellant was in occupation of Property No. 43 or 43/1 and had, in fact, applied for transfer of that property; and secondly, whether a person in possession of a servant quarter can lay a claim to the transfer of main house in the absence of any contestant in possession of it.

Khasra No. 2103 is comprised of two plots bearing Nos. P-43 and P43/1. The former was owned by Lekjraj, an evacuee wile the latter by Bhagwan Singh, another evacuee. There is a bungalow, the transfer of Plot No. 43/1. On Plot No. 43, there is a bungalow servants quarters eight in number and a garage appertaining to it. Both the plots are separate units nonetheless the appellant on the basis of her son s possession over a portion of the property applied for the transfer of the house on C.H. Form on 10^th November, 1959 giving out the numbers of the property as P-43/1 and P-43. Subsequently, however, before the disposal of her C.H. Form, Both the properties were listed for disposal under the Earmarking Scheme. There upon, the appellant s son Abdul Majid Naz applied on 28-11-1959 for the deletion of this property from the earmarking list on the ground that he was in occupation of a portion of the property bearing both on the numbers. The Additional Settlement Commissioner dismissed the application whereupon she filed an appeal, but did not succeed as the Settlement Commissioner dismissed it on 30‑5‑1960 holding; firstly, that "the appellant himself admitted that he was in possession of three rooms in Property No.43/1"; and, secondly, that it was Property No. 43 which was transferred under the Earmarking Scheme. The second revision filed under section 20(2) of the Displaced Persons (Compensation and Rehabilitation) Act also failed as the Settlement Commissioner exercising powers under this provision did not think it fit to interfere with the order.

Not being satisfied with the decision, the appellant filed a review which was allowed by the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner by order, dated 8th of June, 1966, and the property bearing No. 43 was transferred to the appellant. In holding so, the Settlement Commissioner based her entitlement on her partial possession of the property for the transfer of which she had submitted her C.H. Form.

Feeling aggrieved by this order the legal representatives of Roshan Din and his brother Ahmad Din to whom the property stood transferred under the Earmarking Scheme invoked the jurisdiction of the High Court through a writ petition and succeeded as it was allowed by order, dated 12th of November, 1973. The entitlement of the appellant was rejected on the grounds; firstly, that the appellant's son Abdul Majid Naz on the basis of whose possession she claimed the transfer clearly admitted that he was in occupation of g servant quarter of Property No. 43/1 which was not denied; and secondly, that in any case, the possession of servants quarters would not entitle the appellant to claim the transfer of the main building itself and for this reliance was placed on the case of Mst. Fazlun Nisa Begum v. Chief Settlement Commissioner and others P L D 1967 Kar. 402.

The High Court while considering the entitlement of the appellant held that Abdul Majid Naz, the son of the appellant on the basis of whose possession she was claiming the transfer of the main house on Plot No. 43, was in occupation of a servants quarter of property on Plot No.43/1. This finding of fact is supported by an entry in the CSC‑II Register, and not only that her son Abdul Majid Naz, while being examined in some criminal case, categorically admitted that he was in occupation of a quarter on Plot No.43/1 alongwith Choudhry Muhammad Tufail, who vacated it on 18th of September, 1959. He also stated that his mother had applied for its transfer on the basis of his possession. This being so, there is no room for holding that the appellant was in occupation of one of the quarters of the building on Plot No. P‑43. In this background, the mentioning of Plot No. 43 in the. C.H. Form cannot be because of any confusion, but a deliberate attempt to create an entitlement. Against this background, the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner held that the appellant's son was in possession of a portion of the bungalow which was described as Plot No. 43 and not Plot No.43/1. His conclusion is based on a report of the Deputy Settlement Commissioner, dated 4‑12‑1959. Factually stated the report is not by the Deputy Settlement Commissioner but by the Deputy Rehabilitation Officer (DRO) and all that he had stated was that he was in possession of a servants quarter and not the portion of the bungalow as stated by the Settlement Commissioner in his order. It may also be stated that after the report of the Deputy Rehabilitation Officer, other orders were passed by the Settlement Authorities in appeal, revision and review on different dates which clearly go to show that she was not in partial possession of the property on Plot No. 43. If the appellant's son was in possession, as according to his own admission, of the rooms on Plot No.43/1 on or about.18th of September, 1959 then he could not be in possession of the quarter on Plot No.43 on the crucial date. It was subsequently that he must have occupied it. The report of the Deputy Rehabilitation Officer, dated 4th of December, 1959, if taken into consideration, could not relate to his occupation of his quarter on the crucial date. In this view of the matter, the finding of the Settlement Commissioner exercising powers of the Chief Settlement Commissioner as to his being in possession of the portion of the property cannot be upheld as it is based on inconclusive report of the Deputy Rehabilitation Officer, dated 4‑12‑1959. Further the Settlement Commissioner did not apply his mind to the other material on the record for coming to a definite conclusion and for this reason as well, his conclusion is erroneous. If, at all, it be assumed that she was in possession of a quarter of the main bungalow then the question which next arises for consideration is whether the possession of one of the servants quarters of the main bungalow on Plot No. P‑43 could give to her the right for the transfer of whole property. The High Court followed the observation of Sajjad Ahmad, J., as he then was, in Mst. Fazlun Nisa Begum's case for rejecting her claim. The learned Judge held as under;

"I may, however, observe and that in my view, according to this provision whereas the occupant of a house can claim its transfer along with the outhouses which are appurtenant to it, even though the outhouses are in possession of somebody else, the reverse position is not envisaged by this provision and the occupation of a part of the main house for purposes of the transfer of the main house under the Act."

This case was decided on 8‑11‑1985. This Court in Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner P L D 1966 S C 719 approved the principle laid down in Mst. Fazlun Nisa Begum's case in the following words:

"In construing the definition of a 'house' in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act this Court has held that a person in possession of an outhouse or a garage cannot for the purpose of the transfer of the house or a portion thereof be considered to be in its occupation for the reason that the outhouses and garages are appurtenances to a house, but a house cannot be an appurtenance to an outhouse or a garage, Mst. Fazalun Nisa Begum v. The Chief Settlement Commissioner Civil Petition for Special Leave to Appeal No. K‑34 of 1966, decided on the 24th March, 1966. In this view the Settlement Authorities and the High Court had rightly rejected the appellant's claim for transfer of the outhouses and a portion of the compound of the bungalow on the ground that he was not in occupation of the bungalow."

Again a petition for leave to appeal was filed by Mt. Fazlun Nisa Begum against the decision of the Letters Patent Bench which was dismissed by this Court on 24th March, 1966. See 1972 S C M R 126. The same principle was reiterated in Ch. Sadiq Ali v. Settlement Commissioner 1977 S C M R 440 upon a review of the case‑law on the subject.

In the result, the appellant has no entitlement under the law for the transfer of the main house including the servants quarter.

Accordingly, the appeal fails and is hereby dismissed, but with no order as to costs.

M . Y . H . Appeal dismissed.

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