Find a Lawyer

Civil Appeal No. 197 of 1983, decided on 12th October, 1986.

(From the judgment of the Lahore High Court, dated 13‑10‑1980 passed in L.P.A. 9 of 1971).

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.10 & Sched.‑‑Settlement Scheme No. VII‑‑Leave to appeal granted to consider whether in circumstances of case, original allottee or tenant in actual occupation of shop was entitled to its transfer under Settlement Scheme No.VII.

‑‑‑S. 10 & Sched.‑‑Settlement Scheme No.VII‑‑Word 'occupation' used in Settlement Scheme No. VII‑‑Interpretation‑‑Occupant of rural evacuee property of value of Rs.10,000 or more in his own right to be the only person entitled to transfer of such property‑‑Occupation of property should however, be in his own right and not as a tenant‑‑Appellant being allottee of shop and having rented out same to respondent, latter would not be an occupant in his own right and would be occupying it under former as a tenant.

Mst. Ambo Jan and 2 others v. Assistant Settlement Commissioner (Lands), Abbottabad and 6 others P L D 1975 Pesh. 244 ref.

Mirza Yousaf Baig etc. v. Settlement and Rehabilitation Commissioner and 5 others 1974 S C M R 276 and Muhammad Abdullah v. Settlement Commissioner, Sargodha 1973 S C M R 402 distinguished.

Bashir Ahmad Ansari, Advocate Supreme Court instructed by Ghulam Dastgir Advocate‑on‑Record for Appellant.

Maulvi Sirajul Haq, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No.4.

Date of hearing: 12th October, 1986.

This appeal is directed against the judgment of the Lahore High Court, dated 13‑10‑1980, whereby the Intra‑Court Appeal filed by Muhammad Hanif was accepted, the order of the Settlement Authorities and that of a learned Single Judge of that Court, dated 14‑12‑1970 were set aside and the shop in dispute was ordered to be transferred to respondent No.4. ,

2. The dispute relates to the transfer of Shop No. 232/68 situate in the Abadi of Dina Town, Tehsil and District Jhelum. The shop was an evacuee property and was properly allotted to the appellant as per the order of the Rehabilitation Authorities as back as January, 1952. After some time the appellant rented out this shop on the payment of sum of Rs.30 per month to Muhammad Hanif respondent No.4 The appellant had received a sum of Rs.200 in advance. After the promulgation of Settlement Scheme No.VII, the appellant submitted an application on 10‑5‑1965 to the relevant authorities for the transfer of the shop in dispute. It seems that while the application of the appellant was pending consideration, respondent No.4 too on 3‑5 1967 submitted an application for transfer of the shop in question in his name on the basis of his occupation. Both the applications came up for consideration before the Tehsildar, Jhelum, who after considering the claim of both the applicants ordered the transfer of the shop in the name of the appellant on 25‑7‑1968. Respondent No.4 filed an appeal before the Assistant Commissioner exercising the powers of the Deputy Settlement Commissioner (Lands), Jhelum, who vide his order, dated 30‑4‑1970 dismissed the same holding that since the "appellant (respondent No.4) had in fact got the shop in dispute from the respondent (appellant here) on rent for running his business there" his possession "cannot be considered as exclusive. He is, therefore, not entitled for the transfer of this shop in his name under the provisions of Settlement Scheme No.VII". The revision petition of respondent No.4 before the Settlement Commissioner was also dismissed on 18‑9‑1970 and his writ petition in the High Court met the same fate on 14‑12‑1970. Still not satisfied, respondent No. 4 filed an Intra‑Court Appeal in the High Court and there he succeeded in obtaining a decision in his favour vide the impugned judgment, hence the present appeal.

3. Leave in this case was granted to consider whether in the circumstances of the case, the original allottee or the tenant in actual occupation of the suit shop was entitled to its transfer under Settlement Scheme No.VII.

4. The learned counsel for the parties for and against the appeal have been heard at length. As the case stands, we are of the view that hardly any ground exists to sustain the impugned judgment Of the two aspirants, who were asserting their right for the transfer of the suit shop, the one, i.e. the appellant, is its allottee and the other respondent No.4, its occupant. There is no dispute that under Settlement Scheme No.VII a shop or a house of the value of Rs.10,000 and more has to be transferred to its occupant in case he applies for its transfer. Admittedly the appellant who was the allottee of the shop in dispute had rented it out to respondent No.4 and as such the latter was occupying it under the former as a tenant. This position had been thoroughly examined by the Tribunals and by the late K.E. Chauhan, J. an eminent Judge of the Lahore High Court (as he then was) who had dismissed the writ petition of respondent No.4 and while doing so it was held:

"The occupation which has been accepted has been held to be, under the respondent. The learned appellate Court visited the3 spot on 14‑1‑1970 and even its investigation showed that the petitioner had obtained the shop from the respondent on rent for running his business there. When confronted with this situation, learned counsel argued that in Settlement Scheme No. VII, the word used was 'occupation' and, therefore, even if the occupation of the petitioner was as a tenant under the respondent still, according to law, he would be eligible for transfer. The contention cannot be given any serious consideration because even from that point of view the occupation of the petitioner cannot be said to be in his own right and his occupation will be the occupation of the master, namely, landlord. No other point wasp argued before me.

5. The word 'occupation' used in Settlement Scheme NO‑VII was again a subject‑matter of consideration in almost a similar situation before a Division Bench of the Peshawar High Court, on a reference, in the case of Mst Ambo Jan and 2 others v Assistant Settlement Commissioner (Lands), Abbottabad and 6 others reported in P L D 1975 Pesh. 244. Mr. Justice Abdul Hakeem Khan (as he then was), after considering the matter in depth held:‑

"Once it is conceded that Mat. Ambo Jan was a person in possession within the contemplation of the Act and she had inducted Ayub and Muhammad Yunus as tenants under her, the occupation of the latter is as a matter of fact occupation of the former. How can they be allowed to turn round and deny the title of their landlady. Their occupation was evidently not in their own right but on account of the rights that Mat. Ambo Jan had. For the reasons we will hold that where a person in actual occupation of the property is not in occupation in his own right but as a tenant of another person, the latter and not the former shall be treated to be in occupation for the purposes of transfer of evacuee property under Settlement Scheme NO. VII."

6. The learned Judges of the High Court while reversing the finding of the Courts were also influenced by the fact that the appellant had allegedly abandoned his rights in favour of respondent No.4. This fact, we may say with respect, is not borne out from the record because it was not the case of the respondent either before the Settlement Authorities or in the writ petition before the High Court. The perusal of the record shows that as soon as Settlement Scheme No.VII was introduced the appellant applied for the transfer of the suit shop and continued defending his case throughout. So, under the circumstances, it can by no stretch of imagination be said that the appellant had abandoned his rights in favour of the respondent. The authority cited by the learned counsel for the respondent No.4 and relied upon the appellate Bench of the High Court reported in Mirza Yousaf Baig etc. v. Settlement and Rehabilitation Commissioner and 5 others 1974 SCMR 276 is clearly distinguishable in that in the reported case the allottee of the shop did not apply for its transfer and instead his brother who was neither the allottee nor the occupant had applied for the transfer of the shop under dispute and further though subsequently at revisional stage the allottee of the shop too joined his brother but the authorities recorded a concurrent finding to the effect that although the shop at one time was allotted to Nawab Baig, yet he had abandoned his possession.

7. The authority reported in Muhammad Abdullah v. Settlement Commissioner, Sargodha 1973 S C M R 402 and relied upon by the learned Judges is inapplicable inasmuch as in the said authority the interpretation related to the word 'possession' as defined in section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, whereas in the case in hand we are concerned with the word 'occupation'. The upshot of the above discussion is that we hold that under Settlement Scheme No. VII only that person is entitled to the transfer of a rural evacuee property of the value of Rs.10,000 or more who is its occupant in his own right and not otherwise. The appeal succeeds and is allowed accordingly. The order of the Division Bench passed in the Intra‑Court Appeal, dated 13‑10‑1980, is set aside. We make no order as to costs.

S. Q. Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.