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Letters Patent Appeal No.65 of 1972, heard on 26th January, 1987.

--Ss.2(12), proviso 1, 2 & 10 and Sched.--Transfer of composite building--Property in possession of appellant (non-claimant) and another person (respondent) (claimant) each having a shop with a back room and two residential rooms on the first floor--Assistant Settlement Commissioner treating property as indivisible, transferring same to respondent "being claimant in preference to appellant a non-claimant"--Respondent associating with him yet another person and surrendering half of the property to him vide statement of Association which was approved by Deputy Settlement Commissioner and P.T.Ds. were accordingly issued--Appeal and revision of appellant dismissed inter alia on the ground that P. T. Ds. had already been issued to both respondents--First respondent stated to have died leaving behind legal heirs who had no interest in the place where disputed property was situated as they had gone to the other province and some were living in India--Nobody, held, could say rightly that property in dispute consisting of two shops with. two residential accommodations completely separated by a wall in which two displaced persons had found refuge was one shop and further mere issuance of P.T.D. was no bar for the determination of an appeal or a revision petition--If a ground in an order was unsustainable in law, the whole order was liable to be set aside--Orders of Settlement Authorities were clearly without lawful authority and were so declared--Matter having remained in melting pot for 28 years, case not remanded for fresh decision--Portion in possession of appellant ordered to be transferred to him and rent of the half of the property which first had transferred in favour of the other one may remain the latter to whom P.T.D. had also been issued.

Sardar Sher Muhammad v. Rao Bashir Ali Khan and another, 1962 Lah. 172; Government of West Pakistan v. Haider Bux Jatoi another P L D 1969 S C 210 and Muhammad Mosawwar Khan v. Deputy Commissioner, Gujranwala and 2 others P L D 1983 Lah. 102 cited.

M. Aqil Mirza for Appellant.

Abdul Majid Khan for L. Rs. of Respondent. No.2.

Dilawar Mahmood and Ch. Muhammad Hassan for Respondent No.3.

Dates of. hearing: 25th and 26th January, 1987.

--Relevant lasts for the disposal of this appeal are that the appellant Kalu Khan (since deceased ant represented by his heirs) and Muhammad Ismail, respondent No. (since deceased and represented by his heirs) were in possession an independent shop with a godown at the back and residential. accommodation of two rooms on the upper floor each. On the advent of the Settlement operations, Kalu Khan being a non-claimant filed NCS and NCH forms, whereas Muhammad Ismail being a claimant, filed a CS and CH forms. The Assistant Settlement Commissioner recorded the statements of Kalu Khan and Muhammad Ismail on 7-11-1959. On the same day observing that the property could not be divided into two portions and it should go to one, he transferred it to Muhammad Ismail being claimant in preference to Kalu Khan, a non-claimant. This is vide order dated 7-11-1959. Muhammad Ismail associated with Rao Muzaffar Ali, respondent No.3 surrendering half of the property transferred to him vide Agreement of Association dated 28-2-1961. The agreement of association was approved by the Deputy Settlement Commissioner on 12-2-1964. Muhammad Ismail was accordingly issued a P. T. D. for half of the property, by the Settlement Authorities on 22-1-1964. Kalu Khan filed an appeal against the order of transfer of the whole property in favour of Muhammad Ismail. This was dismissed on the ground of being barred by time and also the for reason that the P.T.D. had been issued, to Rao Muzaffar Ali. This is vide order of S. Iqbal Hussain, Additional Settlement & Rehabilitation Commissioner, Sargodha Camp Sheikhupura, dated 20-6-1964. Kalu Khan filed a revision petition saying that the property was perfectly divisible and he should have been transferred the portion in his possession. The revision petition was, however, rejected on the ground that the property could be treated as one shop xxxxxxxxxxxxxxxxx and "in addition P.T.D. had also been issued to both the respondents" i. e. Muhammad Ismail and Rao Muzaffar Ali. This is vide order dated 2-4-1965. This was challenged by Kalu Khan through Writ Petition No.1086-R/65 which was dismissed by learned Single Judge on 11-1-1972. He has filed the afore-titled L.P. 4

2. Learned counsel for the appellants contended that the order of transfer by the Assistant Settlement Commissioner on 7-11-1959 was without jurisdiction altogether because no power of transfer of property was delegated to the Assistant Settlement Commissioner. The power delegated to him was only "for determination of public dues and verification of entitlement till further instructions in this behalf", a copy of which is annexed as R/5. It was secondly contended that the appellant's appeal had been dismissed by the Additional Settlement Commissioner on the grounds that the appeal was barred by time and no satisfactory explanation was forthcoming. Kalu Khan had no case. And that P.T.D. had been issued to Rao Muzaffar Ali Khan. The Settlement Commissioner rejected the revision petition on the ground that the property could be treated as one shop and P. T. Ds. had been issued. In the writ proceedings the learned Single Judge rejected the plea of non-hearing at the time of passing of the order by the Deputy Settlement Commissioner on the ground that the day the statements of the parties were recorded the order was passed. Therefore, the appellant would know of the order. He had acquiesced and changed his mind subsequently. Learned counsel submitted that the inferences are not inevitable. The order was not announced and two shops could not be transferred to respondent Muhammad Ismail. The learned Single Judge held that the property could be transferred to Muhammad Ismail under proviso to clause (12) to Section 2 of Displaced Persons (Compensation and Rehabilitation) Act, 1958. Learned counsel for the appellant submitted that this was held with reference to proviso 1 which provides that more than one business units would be deemed as one shop unless the Chief Settlement Commissioner orders otherwise. In the present case, the relevant provision was proviso 2 which lays down that in case of composite building i.e. residential and business premises the Chief Settlement Commissioner may order it as a shop or house. Otherwise these would remain as independent properties. The Chief Settlement Commissioner or his delegate having not ordered the property to be one shop, the whole of the property consisting of two shops and two residential portions could not be transferred to one person Muhammad Ismail. The learned counsel for the appellant lastly and more importantly contended that the appellants' appeal and revision had been dismissed on the ground that the P.T.D. had been issued. Learned counsel contended that the issuance of P. T. D. itself would not render the appeal or revision to be incompetent. So much was accepted by the learned Single Judge but he erred in not setting aside the impugned orders. It was submitted that if an order is passed say on two or three grounds and one is found to be not valid in law, the whole order is liable to be set aside as nobody knows how much that ground had weighed in passing the order. In the case in hand, the Settlement authorities had obviously been swayed to a very great extent on account of issuance of P. T . D. Reliance was placed on Sardar Sher Muhammad v. Rao Bashir Ali Khan and another P L D 1962 Lah. 172, Government of West Pakistan v. Haider Bux Jatoi and another P L D 1969 S C 210 and Muhammad Mosawwar Khan v. Deputy Commissioner, Gujranwala and 2 others PLD 1983 Lah. 102.

3. Learned counsel for Rao Muzaffar Ali, respondent No.3 have submitted as regards the jurisdiction of Assistant Settlement Commissioner that orders passed by him have been validated by Act XLIV of 1973 and further that this point was never taken.

4. Learned counsel appearing for the three legal heirs Muhammad Latif, Jamal Din and Mst. Latifan of deceased respondent No. 2 Muhammad Ismail, has submitted that the entire property was rightly transferred in favour of Muhammad Ismail. It is, however, stated that Muhammad Ismail has now died and his three heirs whom he represents are now living in Haiderabad (Sind). The last three are stated to be living in India.

5. During the course of the hearing it transpired and is the admitted position by the learned counsel appearing for Rao Muzaffar Ali, respondent No.3 that the latter has been transferred half of the property by way of agreement of association by Muhammad Ismail who A had originally been transferred the entire property and that for half of the property Rao Muzaffar Ali had also been issued P.T.D. The property in question is shown in Annexure 'A' to be in possession of Kalu Khan on the Western side and in possession of Muhammad Ismaill on the Eastern side alongwith the rooms on the upper floors respectively. Muhammad Ismail is stated to have died. Out of his seven legal heirs, three are living in India and four in Hyderabad (Sind). In other words Muhammad Ismail having died, his heirs have no interest in Sheikhupura where the property in dispute is situated having gone to Sind and some living in India. It is admitted fact also that Kalu Khan, appellant and Muhammad Ismail, respondent No.2 were inter related being nephew and maternal uncle respectively. They were in possession of the property each having a shop with a back room and two residential rooms on the first floor. No doubt the appellant Kalu Khan was a non-claimant and Muhammad Ismail the respondent No.2 was a claimant and if the property were one, the latter would have preference but before it could be said 'that the property was one, somebody had to apply his mind and with right senses. Nobody could say rightly that two shops with two residential accommodations completely separated by a wall in which two displaced persons had found refuge was one shop. Kalu Khan's appeal and revision were dismissed on the ground that P.T.D. had been issued. There is no denying the fact that mere issuance of PTD is no bar for the determination of an appeal or a revision petition. It is well settled law by now that if a ground in an order is unsustainable in law, the whole order is liable to be set aside. Therefore, the orders of the Settlement Authorities are clearly without lawful authority and are so declared. Now the next question is as to whether to remand the case for fresh decision or to dispose it of finally as the simple matter has remained in the melting pot for 28 years. The undisputed facts are that Kalu Khan appellant was in possession of one shop with a back room and living in the two rooms on the upper floor. After his demise, heirs are doing the same. So also was Muhammad Ismail. Quite clearly the transfer should have been made in favour of them according to their possession. Now Muhammad Ismail having been transferred the entire property, - has transferred by way of association half of the property in favour of Rao Muzaffar Ali, respondent No.3. His heirs have gone to Hyderabad Sind and some are in India. Therefore, the best course would be to transfer the portion in possession of Kalu Khan to him and the rest of the half of the property which Muhammad Ismail had transferred in favour of Rao Muzaffar Ali, may remain with the latter to whom P. T. D. had also been issued. It is acceptable to the learned counsel appearing for him. This will settle the dispute between the parties as Kalu Khan would get the portion in his possession and Rao Muzaffar Ali will get the other half of the property earlier in possession of Muhammad Ismail. The appeal .is, accordingly, allowed leaving the parties to bear their own costs.

S.Q./K-17/L Appeal allowed

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